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Or C.0 A V 4 I A rEs * Ocean Management: Seeking a New Perspective Office of Ocean, Resource and Scientific Policy Coordination GC1 015.2 .A75 1980 Ocean Management: Seeking a New Perspective Prepared under contract AO-AO1-78-00-1307 By The Traverse Group, Inc. Ann Arbor, Michigan John M. Armstrong Peter C. Ryner ETVZ-SOV69 3S 'U0189T2V1q3 anugAv uosqoH qqnoS VEZZ JOJU93 690TAIes TV;SV00 VVON 90.18MM03 ;o quemizedea sn 110 U.S. Department of Commerce Office of Policy Jerry J. Jasinowski, Assistant Secretary 0 Office of Ocean, Resource, and Scientific Policy Coordination James W. Curlin, Deputy Assistant Secretaryn For sale by the Superintendent of Documents, U.S. Government Printing Office Washington, D.C. 20402 Stock Number 003-000-00557-7 FOREWORD OFFICE OF POLICY The ocean was once thought of as boundless; its resources infinite. Increased popula- tion, the explosion of technology after World War 11, and diminishing land-based resources of hydrocarbons, minerals and physical space have proved these perceptions untrue. The ocean, like the land, is vulnerable to overcrowding, over exploitation, and abuse. Unlike the philosophy for use of public lands, however, a philosophy of multiple use, conservation, preservation and protection has been slow in developing for oceans. It was only 32 years ago that the U.S. Supreme Court declared that the Federal Government and not the States held title to the offshore waters. International doctrines based upon 17th cen- tury concepts have further influenced national policies dealing with ocean space and marine resources. With the Federal Government and the States sharing responsibility for jurisdic- tion over the ocean, the American governmental system further complicates developing a unified approach to administration of ocean programs. Conflict among ocean uses in U.S. coastal waters is becoming more evident as oil and gas development accelerates in the Outer Continental Shelf, as oceanborne commerce in- creases, as fishing activities in the 200-mile Fishery Conservation and Management Zone ex- pand and as more people clamor to use the -ocean for recreation. Legislative solutions to these problems have been piecemeal. Single purpose laws, administered on a case-by-case basis, is the hallmark of U.S. ocean policy aimed at allocating and protecting the marine resources. Proposals for creating a system of "Ocean Management" have been advanced with greater frequency in recent years. Unfortunately, in the absence of conceptual framework, "Ocean Management"is a meaningless label. Furthermore, "Management" itself suggests to some the heavy hand of regulation, control, and red tape, coupled with an unsavory hint of 66government planning." Thisstudy-is intended as x pointof Opparture for developing a theoretical construct for discussion of ocean management. Wig hot intended to be a treatise to promote the accep- tance of the-concept, but rather is intefidd-cFt6@pfdir&e%RilstoricaI discussion of the evolution of contkmp@&,@@dean'@cilicy.# t66@016r`@ current problems and programs for meeting these problems and to offer alternative means for dealing with the problems of allocating and protecting ocean resources in the future. Some may find statements in this study to be contentious or controversial. Others will dislTee with certain inferences and conclusions. To those persons who may be critical of thi ffort we would remind them that the U.S. Constitution itself was initially grounded in coloversy and disagreement. Through debate and deliberation, however, the greatest liv- inoocument of consensus emerged. We hope that this study will serve as a catalyst in the del?ate leading to better administration and stewardship of the ocean and its resources. James W. Curlin Deputy Assistant Secretary for Policy U.S. Department of Commerce AUTHORS' FOREWORD This report is the result of a six-month study effort initiated by the U.S. Department of Commerce. The major intent of this study was to examine the subject of ocean management as an area of interest to the United States Government. The principal approach was to view this question as one of management of a large, complex public resource, a resource with dynamic natural characteristics and a wide variety of uses and users. Much has been said in the past about the issue of "ocean management" or "ocean policy." Most of this past discussion has been concerned with one of three subjects: (1) marine research and how to get support for more of it; (2) Law of the Sea negotiations and the attendantpolitical/legal difficulties involved; and (3) ad- ministration of ocean management programs. Almost none of the many past efforts have been concerned with the actual management problems of our ocean resources, particularly with our ocean resources viewed as a total system. Marine science interests want to learn more about the characteristics of the various ocean subsystems that could be managed. Law of the Sea researchers want to learn how and when to negotiate a "good position." Ocean reorganization advocates want to tell us what agency or agencies should do something called ocean management. No one has really talked about ocean management in terms of where we have been, what we are doing now, and how we should think about the problems of controlling or managing even "our part" of this vast thing called the ocean. Little has been written about the oceans as a resource management problem. This is, in part, because we do not really understand very well how the ocean works, how it responds to accelerating use, how its various sub- systems interconnect and how they interact. There is a strong analogy between the problem of managing that other fluid body we live in, the atmosphere, and understanding and managing the fluid oceans. Further, we lack historic perspective on the impact of our use of the seas. In our management of other natural systems, such as public lands, forests, rivers, we have had the benefit of 200 years of living on and in these particular resource systems and, as a result, a strong sense of association has evolved. This is not the case with the oceans. The U.S. does, however, have a long history of thought and action associated with ocean affairs. This awareness goes back further than one normally m1ght suppose. Because past patterns of development can be so important in understanding present ocean management issues and possibilities, considerable attention has been directed to the evolution of ocean control. The major objective of this study was to explore some of the basic factors that have brought about Federal Government involvement in the use, protection and development of ocean resources. In this light, two major comments are in order. First, there is an implicit assumption made in the study that the boundaries of the system under consideration are somehow "domestic" in scope, that is to say the study deals primarily with the territorial sea, coastal waters and possible future adjacent zones that might be established. The study was not directly concerned with international waters, high seas or other subjects related to international negotiations or treaty. It must be emphasized, of course, that these two areas are not fully separable or independent. The passage of maritime commerce from domestic waters to international waters, the development of seabed resources, the management of transient living resources all involve management issues that bridge both of these areas and others. Nonetheless, the focus of this study is on issues, concepts and problems that relate more to domestic ocean resources than to international issues. As such, any implication created by the discussions in this report that bear upon international ocean issues or problems must be recognized as beyond the scope of this work, even though they must eventually be accounted for in any future extensions. No conclusions should be drawn about the future international ocean policies of the U.S. from the discussion presented here. While there is an interactive relationship between so-called domestic ocean management issues and international issues, it is the "domestic system" that is the subject of consideration in this study. Thus, even while in- ternational considerations and events have had a significant impact on domestic ocean policy and programs there is no intent in this presentation to encourage the reverse. In many instances, international considerations, law, or treaties may directly or indirectly influence "domestic" programs, even regulations. While domestic program objectives or operating characteristics may not always be in harmony with international considera- tions, it is not intended that "domestic ocean management" concepts or goals presented in this report would necessarily influence existing or future international agreements. Second, the terms "ocean control," "control of ocean resources," "government control," etc., are used throughout this report in the broad sense of discussing the wide range of government actions that can guide, manage, regulate, influence or effect the use, nature and/or character of ocean resources or ocean space itself. Control, as used in this report, does not always imply jurisdictional control or jurisdiction itself. As presented in the introductory section, control is a generic term that implies a range of management functions that may result in more efficient or wiser use of ocean resources. It does not necessarily mean full and absolute control of resources or space in the oceans. Furthermore, control does not necessarily imply any direct action by the Federal Government in@ the international waters of the ocean. The major purpose of this document is to stimulate renewed consideration of a very complex management issue. The purpose here is not to prescribe how ocean management should work but rather to describe the system as it has evolved to date, to offer some observations about future development alternatives, and, most of all, to encourage further examination of this increasingly important issue. The United States has not yet learned how to fully and effectively manage any of its large public resource systems. We have from time to time, however, sucessfully asked the right questions, formulated potential approaches, and established principles to guide our actions. If this can be done for the oceans, it will be a major step forward. And, if this study con- tributes to some further understanding, discussion, and debate about the issues and problems associated with the wise use of the oceans, it will have been a success. From our perspective, this study has been a necessary and important starting point, but there remains a great deal to be done. There is a need to understand better the conflicts in ocean use and the concepts and op- tions related to the management of the ocean system. While there should be a reasonable tradeoff between study and action, we hope that the topic of "ocean management" will derive the benefits of further inquiry, study, and debate. If formal actions are needed before the problem is fully understood, we hope that those ac- tions will allow the flexibility and spirit of further inquiry that are necessary to deal with this profound and fascinating problem. iv TABLE OF CONTENTS Foreword ........................................................................ Acknowledgements ............................................................... viii CHAPTER ONE: INTRODUCTION ............................................... I 1. Definitions and Assumptions .......................................................................................... I A. A Definition of "Management .. ......................................................................... I B. Defining "Ocean ............................................................. I ............................... 2 C. The Concept of a Management Regime ................................................................ 4 11. Structure of the Study .................................................................................................. 4 CHAPTER TWO: EVOLUTION OF FEDERAL EFFORTS TO CONTROL OCEAN SPACE AND OCEAN RESOURCES .................................................................. 7 1. Introduction .............................................................................................................. 7 II. National Jurisdictional Claims Prior to 1937 ....................................................................... 7 III. Federal Assertions of Authority 1937-1942 ........................................................................ 8 A. Within the Territorial Sea ................................................................................. 8 B. Beyond the Territorial Sea ................................................................................ 9 IV. A National Marine Resources Policy Study (1943-1974) ......................................................... 10 A. Interior Department Concept ............................................................................ I I B. State Department Concept ............................................................................... I I C. Segmenting the Ocean and Its Resources .............................................................. I I V. Achieving a Legislative Basis for Governmental Control ........................................................ 12 A. Congressional Action ...................................................................................... 13 B. Executive Branch Action .................................................................................. 13 C. The United States Supreme Court ....................................................................... 13 D. Increased Pressure for Resolution ...................................................................... 14 E. Resolution of the Dispute ................................................................................. 15 VI. Trying Out the System: The Intervening Years (1954 to the 1970's) ........................................... 15 A. Seeking International Acceptance ....................................................................... 16 B. The Beginnings of a New Direction ..................................................................... 17 C. The Nixon Proposal ........................................................................................ 17 CHAPTER THREE: AN ANALYSIS OF SELECTED OCEAN CONTROL PROGRAMS ........... 21 I. Introduction .............................................................................................................. 21 11. Deepwater Ports ......................................................................................................... 21 A. Background .................................................................................................. 21 B. National Control of Ocean Waters ...................................................................... 22 C. Single Purpose Programs and Multi-Program Coordination ...................................... 23 D. Fitting Mechanisms ........................................................................................ 23 E. Coastal State Interests ..................................................................................... 23 F. Degree and Form of Control ............................................................................. 24 G, International Considerations ............................................................................ 24 H. Summary ..................................................................................................... 24 V 111. Marine Sanctuaries ..................................................................................................... 25 A. Background .................................................................................................. 25 B. Ocean Waters as Wilderness .............................................................................. 25 C. Foreign Policy Considerations ........................................................................... 26 D. Degree of Control .......................................................................................... 27 E. Coordination ................................................................................................. 27 F. Utilization of the Act ....................................................................................... 27 G. Modifications of the Marine Sanctuaries Program ................................................. 28 IV. Coastal Zone Management ........................................................................................... 29 A. Introductions . .............................................................................................. 29 B. Waters versus Submerged Lands and Resources ..................................................... 30 C. The Coastal Zone Management Act of 1972 ........................................................... 30 D. Fragmentation of Territorial Sea Management ...................................................... 33 E. Management of Coastal Waters ......................................................................... 34 F. Conclusions .................................................................................................. 35 V. Fisheries Management ................................................................................................. 35 A. Introduction ................................................................................................. 35 B. The Fishery Conservation and Management Act of 1976 ........................................... 35 C. Foreign Fishing within the Management Zone ....................................................... 36 D. Management of Fishing versus Management of Ecological Systems ............................ 37 E. The Purpose of Fisheries Management ................................................................. 38 F. Conclusion .................................................................................................... 39 CHAPTER FOUR: ISSUES OF OCEAN MANAGEMENT ................................................... 41 1. Introduction .............................................................................................................. 41 11. The Role of State and Local Government in Ocean Management .............................................. 41 A. The Role of the States ...................................................................................... 41 B. The Scope of State Interests ............................................................................... 41 C. The Role of Local Government in Ocean Management ............................................ 43 D. Cooperative Management ................................................................................ 44 E. Limits to Development .................................................................................... 44 F. Conclusions .................................................................................................. 45 111. National Security and Ocean Management ........................................................................ 45 A. Introduction ................................................................................................. 45 B. Legislative Considerations for National Security .................................................... 46 C. National Security Policy Formulation ................................................................. 48 D. Security Classification ..................................................................................... 48 E.. Additional National Security Considerations ......................................................... 49 F. Conflict Resolution ......................................................................................... 49 G. The Establishment of a National Ocean Management Program ................................. 50 H. Conclusions .................................................................................................. 50 IV. Private Industry and Federal Ocean Control ....................................................................... 50 A. Industry's View .............................................................................................. 50 B. Information .................................................................................................. 51 C. Financial Assistance ........................................................................................ 51 D. A Merging of Public and Private Interests ............................................................ 52 E. Regulation and Delay ...................................................................................... 52 F. Conclusions .................................................................................................. 52 V. The National Interest ................................................................................................... 53 A. Background .................................................................................................. 53 B. Some National Studies ..................................................................................... 53 C. The Coastal Zone Management Act .................................................................... 55 D. Implementing or Using the National Interests ....................................................... 56 E. Conclusions .................................................................................................. 56 Vi CHAPTER FIVE: SOME MANAGEMENT ASPECTS OF OCEAN CONTROL ........................ 59 I. Character, Nature, and Degree of Control ......................................................................... 59 Il. Tools for Ocean Management ........................................................................................ 61 A. Economic Sanctions ........................................................................................ 61 B. Coordination of Shore Access and Offshore Ocean Use ............................................ 63 C. Impact Analysis as an Ocean Management Tool ..................................................... 64 D. Ocean Zoning ............................................................................................... 65 III. Principles for Ocean Management ................................................................................... 69 A. Multiple Use ................................................................................................. 69 B. Sustained Yield and Optimum Yield ..................................................................... 70 C. Dependency .................................................................................................. 71 D. Suitability/Capability ..................................................................................... 72 E. Conclusions .................................................................................................. 72 IV. Types of Ocean Management ......................................................................................... 73 A. Traffic Control .............................................................................................. 73 B. Ocean Management of Special Values .................................................................. 73 C. Management of Special Areas ............................................................................ 74 D. Comprehensive Ocean Management ................................................................... 75 E. Constraints to Adopting a More Comprehensive Concept of Ocean Management ........... 76 V. Regimes ................................................................................................................... 77 A. The Coastal Zone Management Act: Designing Regimes .......................................... 77 B. Expanding the Territorial Sea or the Coastal Zone .................................................. 77 C. Combining Coastal Waters and Ocean Waters ....................................................... 79 D. Expanding the Outer Continental Shelf Regime or Expanding the Coastal Zone ............ 79 E. Combining Federal and State Interests ................................................................. 79 F. Conclusions .................................................................................................. 80 VI. Concepts of Special Interest ........................................................................................... 80 A. Coordination ................................................................................................ 80 B. Conflict Resolution ......................................................................................... 83 C. Long-Range Cumulative Impacts ....................................................................... 83 CHAPTER SIX: IS CHANGE NEEDED? WHAT SHOULD BE DONE? .................................. 85 1. Introduction ................................................. I ............................................................. 85 11. Important Areas of Work: Recommendations ..................................................................... 86 A. Program Review ............................................................................................ 86 B. Regional Studies ............................................................................................ 88 C. Policy/Issue Reviews ...................................................................................... 88 D. Articulation of a National Ocean Philosophy ........................................................ 89 III. Freedom of the Seas or "Creeping Jurisdiction'! ................................................................. 89 A. Introduction .................................................................................................. 90 B. Beginnings .................................................................................................... 90 C. Common Heritage .......................................................................................... 91 D. United States Ocean Management ...................................................................... 92 E. Summary and Conclusions ................................................................................ 92 APPENDIX I. Submerged Lands Act .................................................................................................. 95 11. Truman Proclamation on Fisheries .................................................................................. 99 111. Truman Proclamation on the Continental Shelf .................................................................... 100 vii ACKNOWLEDGMENTS The authors wish to express their thanks to those who assisted in the preparation of this paper. Staff members of the Office of Coastal Zone Management and other offices of NOAA, the Office of Water and Hazardous Materials, Environmental Protection Agency, the Office of Ocean, Resource and and Scientific Policy Coordination, U.S. Department of Commerce, reviewed and commented on various drafts of this paper. The thorough reviews and critical comments of Captain L.C. Kindbom, United States Coast Guard, and James E. Brown, Office of Ocean Affairs, Department of State, were particularly helpful in clarifying and focussing discussion of several important matters. Mr. Harold Gortner, University of Indiana at Gary, also provided many helpful comments on both the style and substance of the study, and Patricia Spencer made valuable editorial contributions. We are, however, responsible for the work and its conclusions. 0 "When we try to pickup anything by itself, wefind it attached to everything in the universe." John Muir Viii CHAPTER ONE INTRODUCTION range of governmental intervention actions that can This report is an exploration of the origins, con- be imposed upon ocean space and ocean activities. At tent, and structure of United States Federal efforts to one extreme is full control, or at least an attempt at control and/or influence the use of ocean space and full control, which could involve direct governmental ocean resources. This report does not prescribe how development of a resource or an assignment of what such efforts should be structured, but instead at- activities will or will not take place within a certain sector of ocean space. At the other end of the tempts to describe and analyze past efforts and pre- "management" spectrum is something akin to sent systems, and to discuss certain basic principles influence, with minimal exertion of governmental and ideas that may be important to think about when power. A totally laissez-faire situation would fall out- considering the subject of ocean resource manage- side of this concept of "management;" some effort to ment, control or direct must be involved for management to In recent years, the term "ocean management" has occur, as used here. come into use and also has become a political issue. It This concept of "management" is reflected in pre- is not the intent of this report to advocate "ocean sent United States ocean-related programs, which management," and when possible that term is range from the provision of weather information and avoided in this report because of its several contem- the publication of navigation charts, through porary definitions and interpretations. This 66 report fisheries "management" in which fishing "seasons" does not assume that some new form of ocean and total catch are allocated by the Federal Govern- management" is needed. Rather, a major objective is ment for some species. At the far end of the control to develop a background for viewing, examining, and spectrum are certain national defense ocean zones discussing "ocean management" in its various possi- where during certain periods all activities are ble forms. monitored and controlled. In this sense, the United States is already involved 1. Definitions and Assumption in "ocean management." Although the Federal This effort to synthesize ocean-related programs Government has not yet presumed or attempted to and policies into a discussion of "management" has "Comprehensively" manage the ocean, it is involved the consideration of a large number of issues .managing" or attempting to control or direct a and dynamics. Adding to the inherent complexity of variety of uses and/or users: ocean water quality, the this subject is a set of confusing and sometimes am- disposal of materials and substances into the ocean, biguous or contradictory terms and concepts that fishing activities within a 200-mile zone, the pattern have evolved within government, industry, and the of vessel traffic within certain waters, oil and gas academic community. For this reason, it was production on the outer continental shelf, and many necessary to establish some specific definitions and other matters. make certain assumptions which may not reflect 2. A range of functions. "Management" involves common usage. Some of these are presented at this not only different levels of control, but also various point for definitional purposes and will be considered forms of governmental action or "functions." There in further detail elsewhere in the text. is often a correlation between the amount of control desired and the number or type of functions utilized. A. A Definition of "Management" Some of the present Federal ocean-related mange- As used in this report, "management" refers in a ment functions are: general sense to a deliberate effort to direct or control 0 research; conditions and actions, without suggesting that such 0 information collection, storage, distribution; efforts are necessarily successful. Such efforts can 0 financial assistance; either be supportive, in the sense of attempting to en- courage, promote, or assist some action or condition, 0 revenue collection; or restrictive in the sense of attempting to prevent, a monitoring; diminish, or discourage. 0 enforcement; 1. Spectrum of control. In this report "manage- 0 conflict resolution; ment" will also have a more specific use, suggesting a 0 policy setting; I SURFACE WATERS SUBSOIL SUBMERGED LANDS Figure 1: VERTICAL OCEAN PROFILE On a vertical axis, ocean space can be divided into four components: the surface waters, water column, seabed, and subsoil. For purposes of this report. seabed and subsoil will usually be combined and referred to as either seabed or sub- merged lands. � regulation (including permitting, zoning, licen- with .the impacts- of one activity upon sing); and another, imposing restraints upon human � standard setting. uses of the ocean in order to protect natural ocean systems or to encourage human ac- It is this combination of functions and degree of tivities by providing financial support, infor- control which constitute "management." mation or physical protection. B. Defining "Ocean" c. Government programs, agencies, and policies. As the number of ocean-related Federal In developing a concept of "ocean management," management efforts has expanded, various it is necessary to recognize several different aspects or mechanisms have been established to guide, components of the term "ocean." In this study recog- direct, coordinate or "manage" these efforts. nition is given to physical components, management Ocean management entails not only ocean components and jurisdictional components. space, resources and activities, but also the 1. Physical dimensions of ocean space. A conven- collection of laws, programs, agencies, and tional terminology has evolved to describe various policies which have been created in an effort components of ocean space. Figure I shows the ver- to control. This aspect of ocean management tical division of the ocean into its four components: contains two elements: the surface waters, the water column, the seabed, and (1) Ocean related programs. Since the the subsoil. establishment of several ocean-related 2. Management dimensions. In order to discuss Federal programs during the 1970's, a Federal actions that are referred to as ocean manage- number of studies have,, concluded that the ment, it is important to recognize that there are three Federal Government should give more at- major components that must be dealt with: tention to how the growing number of ocean programs, can or should interface a. The natural ocean system, including: and what the appropriate degree and (1) 0 .cean space (surface waters, the water mechanism of separation or coordination might be. column, the seabed. and the subsoil -1 see Figure 1). (2)-Ocean vs. non-ocean programs. It is ad- (2) Ocean "resources" and dynamic systems ministratively difficult to isolate "ocean" (thermal patterns, fish, mineral deposits, affairs totally from all other areas of national interest and Federal activity. The currents, tides, etc.). ocean is not a single unique system in the b. Ocean users and/or ocean activities. Federal national or world order. Thus, ocean ocean-related "management" or control ef- management has historically included forts can involve sorting 'out competing de- consideration of how Federal ocean- mands for ocean space or resources, dealing related programs should be placed 2 institutionally within the Federal Govern- tinental shelf (see Figure 2), but less than full ment system, and of possible linkages bet- authority to control the waters and resources ween ocean management efforts and other above the sea floor. Contained within this areas of national policy, such as national zone is the Contiguous Zone which the United defense, foreign policy, and energy. States currently recognizes as being nine miles 3. jurisdictional dimensions. On the basis of pre- wide, extending seaward from the outer edge sent United States ocean-related programs and of the territorial sea. The Contiguous Zone is policies, the ocean can be divided into four separate another formal, internationally recognized jurisdictional zones. For each of these zones, the Jurisd.ictional area in which a coastal nation is Federal Government presently has a different degree perceived to have many interests and some of ability to control or manage, and thus a different degree of management authority, although management approach. With the exception of the not full ownership or jurisdiction. It should "territorial- sea," these zones are not formally be emphasized that the Contiguous Zone is a recognized either by government or within the part of the high seas and is a zone over which literature, nor is it the intention of this report to the U.S. exercises jurisdiction for fiscal, propose the widespread adoption of the terminology customs, immigration and sanitation matters developed here. These terms have been chosen in an only. Through unilateral action, the United effort to simplify what, in reality, is a complex issue, States has extended the idea of partial and in recognition of the fact that a uniform ter- management authority outward 200 miles, for minology may be emerging but has not yet been ac- fisheries, and some types of pollution control. cepted. the degree to which the United States or a. Territorial sea. This is a segment of ocean other nations should exert control over space over which the United States asserts full resources or activities within this 200-mile sovereign jurisdiction, although some zone has been a subject of debate since at residual international rights, such as the right least the 1930's. The United Nations' of innocent passage, are provided in this area. Conference on Law of Sea (UNCLOS) is While some nations currently claim currently considering the formal designation "territorial seas" as wide as 200 miles,' the of this area as an "economic zone" over United States presently claims a territorial sea which a coastal nation would have certain three nautical miles in width. management authority. (It should be noted b. Outer continental shelf zone. This ocean zone that "jurisdiction" seems to pertain to extends seaward approximately 200 nautical resources in the water column and not on the miles, although the actual width of the shelf water column itself as an element of ocean varies greatly. In terms of any Federal space.) management efforts, it is an exceedingly c. International ocean zone. As used in this complex zone, in which the United States report, this zone represents that portion of claims full authority to' manage or control the ocean space, usually seaward of the continen- resources of the submerged lands of the con- tal shelf, over which no nation claims or exer- cises direct control or jurisdictional authority. U.S. Department of State, "National Claims to Maritime "Management," to the degree that it is at- Jurisdiction," Limits in the Seas, No. 36, 3rd revision. April 19, tempted, is through bilateral, multi-national 1978. and international treaty or agreement. This ............. ............. LAND ........................... ............... Ir ................. ............................................. ...... .................. ..................................... ............ ................... . ......... ........ .... ..................... ....... CONTINE NTAL.VVWM# ............. Figure 2: HORIZONTAL OCEAN PROFILE ------- ................ ................ The major components of ocean -space on the horizontal axis are the continental shelf, the continental slope, the con- tinental rise, and the abyssal plain. In this report primary attention will be limited to a portion extending to the outer edge of the continental shelf, which reflects the limits of the majority of United States ocean-related programs and policies, However, consideration is given to the interface between management efforts for this area and those manage- ment efforts extending beyond this relatively narrow band. 3 segment of ocean space and the resources regime established by the Submerged Lands Act, this located there are principal areas of concern to time specifically including not only the waters of the negotiators at UNCLOS. It now appears that territorial sea, but also adjacent shoreland. This new at least the submerged lands portion of this regime involves a combination of Federal and state zone may eventually be established as a for- authority. mal international management zone. Ocean management regimes can be comprehensive d. Foreign ocean zone. This refers to those por- or narrowly defined, constructed with ' considerable tions of ocean space and resources under the detail and specificity or vaguely drawn. In the United jurisdictional control of some other nation, States since 1945, the tendency has been to establish either as a "territorial sea" or through some single purpose or narrowly defined regimes in what other assertion of authority. Historically, the has often been referred to as a "functional" ap- United States has had economic, transporta- proach, although there are exceptions. Also, these tion, defense, research, and in recent years, 64regimes" were at first not constructed in great environmental interests in these foreign ocean detail. But as the number of regimes, programs, areas and has attempted to influence through policies, and interest groups increased, early regimes various means how they are managed. such as that for the Outer Continental Shelf have While this study focuses upon the first two zones, been modified and given more detail, either ad- and the emergence of Federal efforts within them ministratively or by Congress, or in some instances consideration will also be given to the importance oi by the courts. More recent management regimes, linking management activities within each of these such as the coastal zone and deepwater port'systems, zones. have been constructed with a considerable amount of detail, indicating the linkages or methods of C. The Concept of a Management Regime establishing linkages with other control efforts. Ocean management involves the extention of con- Importance of regime concept. The term "regime" is trol over ocean space, resources, and/or activities, as not normally used in discussions of domestic Federal well as over the individual governmental efforts to ocean-related programs and policies, and the concept exert that control. To be considered are the degree of which it represents in this study is one more co'ntrol needed, the objective(s) of government inter- frequently discussed with reference to the law of the vention, the number and type of functions which sea. Much of the present UNCLOS discussion could should be undertaken, the area of ocean space and be characterized as a consideration of the establish- type of resources or activities over which control is to ment of new ocean management regimes and the be applied, and how multiple control efforts should codification and adjustment of presently recognized regimes. While the concept of regime is not usually be structured in relation to each other. used today in the context of domestic ocean In several instances, the United States has for- programs, it has been used in the past in conjunction malized its ocean "management" efforts, establishing with U.S. domestic ocean program formulation '. specific management boundaries, indicating the type Depending upon the outcome of the UNCLOS and degree of control to be applied over specified negotiations and future national interests, this con- portions of ocean space, resources or activities, and cept may well become a major issue again. In fact it how a particular control or management effort will may already be re-emerging through assertions of the interface with other programs and policies. While need for some new type of ocean management these efforts are most often referred to as programs programs and policies. These assertions will be dis- and/or policies, this report uses the term regime. cussed in Chapter Five. Regime. Regime generally refers to a manner, 11. Structure of Study method, or system of rule of government, and in this report will be used to refer to the systems devised by A brief discussion of the contents of each chapter is the Federal Government to undertake ocean control included here as an indication of the structure of this f analysis. This first chapter has attempted to establish efforts. In this usage, the Submerged Lands Act o 1953 can be said to have established a management some basic terms and concepts and to indicate the ap- regime for the submerged lands and resources of a proach of the report. three-mile wide ocean zone. This regime is managed primarily by coastal states. It does not specifically A. Chapter Two: Evolution of Federal Efforts to Con- include the living resources of this zone and is clearly trol Ocean Space and Ocean Resources differentiated from a separate management regime established for the submerged lands beyond three This chapter traces the evolution of Federal efforts miles through the Outer Continental Shelf Lands Act to control ocean space and resources from the 1930's of 1953. That regime is under Federal rather than until the present time. The analysis is divided into state authority. Using this concept of "regime," the several parts, moving from an initial assertion of Coastal Zone Management Act of 1972 can be seen as Federal authority over both the territorial sea and a Congressional revision of the earlier territorial some distance beyond, through legislative resolution 4 of conflicts which resulted from those assertions, to relevance as future ocean management problems the present consideration being given to new national while others present new opportunities. Using the and international jurisdiction regimes in the late material in Chapters One, Two, and Three as back- 1970's. ground, Chapter Four describes the issues associated with: (a) the role of state and local government in B. Chapter Three: An Analysis of Selected Ocean Federal ocean management; (b) national security Control Programs aspects of ocean management; (c) the national in- In Chapter Three, attention is directed to the terest; and (d) the role of private industry. Deepwater Ports Act, the Marine Sanctuaries Provi- D. Chapter Five: Some Management Aspects of sions of the Marine Protection, Research, and Ocean Control Sanctuaries Act, the Coastal Zone Management Act, and the Fisheries Conservation and Management Act. Chapter Five discusses Federal ocean control ef- Discussion focuses upon the type and degree of con- forts in terms of degree and type of control, problems trol being attempted, the role of the Federal and state of coordination, principles for management, the governments, the relationship with other ocean variety of possible government actions, and programs, and various issues or problems which alternative management "regimes." these particular programs raise. E. Chapter Six: Future Considerations C. Chapter Four: Issues of Ocean Management This final chapter briefly considers the need for The efforts of the United States to exert control ocean management. It also discusses the concern over over the ocean have involved several basic national "creeping jurisdiction" and lists some issues that issues. Some of these issues continue to have need further work. CHAPTER TWO EVOLUTION OF FEDERAL EFFORTS TO CONTROL OCEAN SPACE AND OCEAN RESOURCES 1. Introduction E. R. Bartley, in The Tidelands Oil Controversy', From the early days of the Republic, the United provides clear evidence that until the 1930's both States had established ocean-related Federal state and Federal Governments assumed that the territorial sea was state, rather than a Federal do- programs and activities concerning commerce, main; that the nature of authority was proprietary, navigation, and defense. Early ocean/coastal water (that is, the states owned the submerged lands and concepts contained no Federal claims of national natural resources of the territorial sea). Typical of authority, beyond a three-mile territorial sea, other this attitude was the finding of the U.S. Supreme than for customs purposes and perhaps for defense. Court in the case of Mum Within that territorial sea, it was commonly held by late 1860's: ford v. Wardell during the Federal and state government, and supported by the courts, that the submerged lands and resources were California was admitted into the Union Sep- "owned" by the coastal states, and that most regula- tember 9, 1850, and the Act of Congress admit- tion or management was a state rather than a Federal ting her declares she is also admitted on an equal function. footing, in all respects, with the original By the late 1930's, several factors led to a signifi- states .... Settled rule of law in this court is cant change in way in which responsibility was that the shores of navigable waters and the soils viewed. Those factors included the growing economic under the same in the original states were not importance of oil and gas; the ability to recover granted by the Constitution to the United States, offshore oil and gas resources; a perception of serious but were reserved to the several states.' overfishing in waters near our shores by foreign na- Offshore Oil and Gas as a National Ocean Resource tions; and concern over the ability to detect and con- trol hostile submarines near U.S. coasts. These dis- Issue parate factors, combined with the personal interests By 1920 offshore deposits of oil and gas in and views of Secretary of the Interior Harold Ickes California were being commercially developed, and and President Franklin Roosevelt, resulted in the first in 1921 California enacted legislation' which reserved major public statement of United States Federal to the state all oil, gas, and other mineral resources in ocean jurisdiction, and the first formal and signifi- prescribed areas of offshore waters, and established cant articulation of state and Federal rights and rules for leasing those mineral resources. The right of authorities over ocean space and ocean resources. the state to exert such control was challeged in state This chapter discusses the various assertions and courts .4 The U.S. Supreme Court refused to hear the events that characterized the emerging Federal con- case on the grounds that no substantial Federal issue trol over ocean space and ocean resources and was involved.' This serves as further indication of the provides a historical perspective and background for degree to which state ownership and authority were present Federal efforts to "manage" ocean space, accepted by both Federal and state authorities. resources, and activities. The first challenges to state authority over ocean resources were by private interests hoping for more 11. National Jurisdictional Claims Prior to 1937 favorable access to offshore oil under Federal Prior to 1937, the Federal Government had not authority rather than under the existing state system. made any significant efforts to control or regulate the In California a few majoir oil companies had living or non-living natural resources of the ocean managed to create what amounted to a monopoly through the state leasing system. These companies Federal ocean-related policies and programs seemed to focus upon the use of the water surface as a means Ernest R. Bartley, The Tidelands Oil Controversy (Austin: Un- of conveyance rather than upon problems of ocean iversity of Texas Press, 1953). systems. Control was over commerce, revenue collec- Mumford v. Wardell, 6 Wall 423, 435-36 (1867). Calif. Stats. 1921, 003, p. 404. tion, harbor and port development, and preventing 4 Boone v. Kingsbury, 206 Calif 148 (1928). obstacles to navigation. 5 Workman v. Boone, 280 U.S. 517 (1929). 7 opposed Federal control, since it represented a threat proposed structures in the ocean outside the to their favorable position within the state leasing three-mile limit of the jurisdiction of the state of system.' Throughout the 1920's and 1930's, the California, nor am I advised that any other Department of the Interior continued to receive branch of the Federal Government has such requests for Federal mineral prospecting permits in authority.' waters off the California coast under authority of the Federal Mineral Leasing Act of 1920. Each of these III. Federal Assertions of Authority (1937-1942) requests was denied by the Department of the In- terior on the grounds that the Federal Government A. Within the Territorial Sea had no jurisdiction over offshore oil, either within or beyond the territorial sea. The Proctor letter of 1933 indicates that at that time Harold Ickes believed that the Federal Government Proctor Letter had no authority over mineral resources or sub- merged lands within or beyond the three-mile When the Federal Government attempted to gain territorial sea. By 1937 he had changed his opinion,' control over ocean resources and submerged lands in and using his considerable influence both as the 1930's and 1940's, its previous policy of Secretary of the Interior and as a key official within recognizing state authority was to cause a certain the Roosevelt Administration, initiated a campaign amount of embarrassment. One particular matter to replace state authority with Federal authority over that became an issue in the subsequent debate was a submerged lands and offshore oil and gas. letter written on December 22, 1933, by Harold Ickes as Secretary of the Interior to an applicant, Mr. Olin His first major action was to convince Senator S. Proctor, for a Federal offshore exploration permit: Gerald P. Nye of North Dakota9 to introduce legisla- As to the jurisdiction of the Federal Govern-- tion declaring the submerged lands of the territorial ment over lands bordering on tidewater, the sea to be the property of the Federal Government Supreme Court of the United States has held in (Senate Bill 2964, April 15, 1937). In Nye's original the case of Hardin v. Jordon as follows: measure, Federal title to the submerged lands was claimed. However, in House amendments and later @With regard to grants of the government Senate bills, a different approach was taken. Rather for lands bordering on tidewater, it has been than claiming ownership, subsequent bills claimed distinctly settled that they only extend to high- paramount Federal interests, especially national water mark, and that the title to the shore and defense and protection of interstate commerce as a lands under water in front of lands so granted necessary justification for Federal rather than state inures to the state within which they are control of the submerged lands and associated situated, if a state has been organized and resources. established there. Such title to the shore and While Congress was debating what came to be lands under water is regarded as incidental to known as the "tidelands" issue, Secretary Ickes used the sovereignty of the state, a portion of the the authority of his office to adopt a new Department royalties belonging thereto and held in trust of the Interior policy regarding applications for for the public purposes of navigation and Federal permits for offshore mineral exploration. Af- fishery and cannot be retained or granted out ter June 9, 1937, all such requests (such as that to individuals by the United States.' associated with the Proctor letter) were held in The foregoing is a statement of the settled law, abeyance, rather than denied, as had previously been and therefore no rights can be granted you either done. under the Leasing Act of February 25, 1920 (41 This action severely retarded offshore oil and gas Stat. 437), or under any other public-land law to development; it had the effect of clouding title to the the bed of the Pacific Ocean either within or submerged lands, and its impact was not confined to without the three-mile limit. Title to the soil un- the offshore oil industry. As an example, the General der the ocean within the three-mile limit is in the Counsel of the Port of New York Authority testified state of California, and the land may not be ap- before Congress in 1946 that the New York Port propriated except by authority of the state. A Authority was unwilling during this period to under- permit would be necessary from the War Depart- take any improvements in its port facilities, fearing ment as a prerequisite to the maintenance of that they might be taken over by the national govern- structures in the navigable waters of the United ment. States, but such a permit would not confer any rights in the ocean bed. Bartley, pp. 128-29. The reasons for this change remain unclear and warrant ad- I find no authority of law under which any ditional research. right can be granted to you to establish your Bartley indicates that Senator Nye was chosen because he came See Robert Xgler, The Politics of Oil (Chicago: University of from a state in which oil was not a major economic or political Chicago Press, 1961), pp. 86-95; Carl Solberg, Oil Power (New force. Apparently Ickes felt that opposition from major oil com- York: New American Library), Chapter Six, and Bartley, op. panies to Federal control of offshore oil required this type of cit. strategy. 8 State Response to the Federal Challenge states were eventually to suffer significant jurisdic- tional losses. As the Federal Government attempted to assert full jurisdiction over offshore resources, the states This political and legal contest between state and responded with a counterattack that grew in intensity Federal authority over ocean resources and sub- as both sides became more sophisticated regarding merged lands diminished with the onset of the Second the potential implications of a shift from state to World War and did not fully resume until 1945. But Federal control. Very quickly the issue extended between 1937 and 1945, other major national ocean beyond control over oil and gas, although that issues were being debated, and these issues were to remained a principal interest. A wide variety of have great impact upon the eventual form of United groups with interests that might be affected by States "ocean management" programs. Federal rather than state control became involved, including: port authorities, ship owners, fishermen, B. Beyond the Territorial Sea the Department of the Navy, as well as various seg- Offshore oil and state control of submerged lands ments of the oil industry. A basic tactic of the states were not the only ocean-related concerns of the was to expand the debate from a narrow considera- Federal Government in 1937. By the mid-1930's, the tion of submerged lands jurisdiction into a basic con- United States was experiencing growing pressures on stitutional question of state versus Federal rights in its offshore fishing stocks, especially from the the oceans, or at least in "coastal waters." Japanese who were involved in intensive salmon The states' primary argument was that they always fishing in the Bristol Bay area off Alaska. had owned the submerged lands of the territorial sea, In what remains a little known series of events, in and that any effort on the part of the Federal 1937 the United States, on the direct initiation of Government to claim control of these areas would be President Roosevelt, gave serious consideration to a unconstitutional. Second, the states argued that the significant extension of the United States jurisdiction legal position of the national government consisted of and authority over ocean resources and ocean space delegated powers only, and that there had been no beyond the three-mile territorial sea. delegation of jurisdiction or title in the submerged lands of the territorial sea.10 In a memorandum issued November 21,1937, Presi- The coastal states, for the most part, did not argue dent Roosevelt wrote: that state ownership precluded all Federal interest or ... I suggest . . . the study of the possibility of authority. Many states were willing to recognize cer- adopting a new policy relating to offshore fishing tain Federal powers, especially within the waters of in Alaska. The policy would be based on the fact the territorial sea, for purposes of commerce, naviga- that every nation has the right to protect its own tion, and national defense. The states did argue that food supply in waters adjacent to its coast in these legitimate constitutional concerns of the which its fish, crabs, etc., leave at certain times of Federal Government did not carry with them the the year on their way to and from the actual tenet of ownership. This type of argument had been shoreline or rivers. generally recognized in the courts, as reflected in a 1921 decision of the U.S. Supreme Court written by it occurs to me that a Presidential Justice Brandeis: proclamation closing the sea area along the Alaskan coast to all fishing - Japanese, Cana- In the navigable waters within the several dian, and American - might be a way out - in states [the right of the United States] is limited to other words a kind of marine refuge where one is the control thereof for purposes of naviga- essential to end depletion. I do not know what tion .... The character of the state's ownership Japan could well say in the event of such a in the land and in the waters is the full proclamation and I am reasonably certain that proprietary right." the Canadian government would approve and probably do the same thing along their British Bartley has developed a convincing case that the Columbia coastline. 12 states failed to understand fully the Federal strategy, which had quickly shifted from a claim of Federal President Roosevelt indicated directly to Under ownership to an assertion of paramount con- Secretary of State Sumner Welles that what he had in stitutional rights, which according to the Federal mind was claims, overshadowed any state interests, be they ... an based upon ownership or otherwise. By failing to Executive proclamation by the Presi- refute vigorously the paramount rights concept, the dent, declaring that on account of the peculiar scientific conditions which exist with regard to Memorandum in Opposition to S.J. Res. 208 of the American the habits of salmon and which consequently af- Association of Port Authorities, Hearings before the House fect the salmon fisheries industry, the waters of Judiciary Committee on S.J. 208, 75th Congress, 3rd session, 12 The Right of the United States with respect to Fisheries in which 1938, pp. 84-85. Port ofSeattle v. Oregon and Washington R. Co., 255 U.S. 55, 63 its Nationals have Participation Off the Coasts of the United (1921). States, undated. State Department file #811.0445/11-2844. 9 the Pacific Ocean between the three-mile limit below indicates, that the study consider the relative and that point of the ocean bed where the water role of Federal and state governments in dealing with reaches a depth of 100 fathoms, must be con- domestic territorial sea resources and also consider sidered as territorial waters indispensable to the the possible extension seaward of Federal jurisdiction proper safeguarding of this important portion of over ocean waters, submerged lands, and resources to the food supply of the American people. He a distance of from 100 to 150 miles. It is possible that stated that he had under consideration the he even contemplated a retention of the national proclamation of these waters as territorial waters ocean defense zone which at that time was still in ef- of the United States, and as a national game fect, combining it in some fashion with natural preserve within which no fishing, whether resources management. American or of any other nationality, could be The war has impressed us with the necessity for undertaken, except under the prior issuance of a @an augmented supply of natural resources. In this license permitting such fishing, to be issued by connection I draw your attention to the impor- the government of the United States." (Emphasis tance of the continental shelf not only to the added). defense of our country, but more particularly as a Thus, in 1937 President Roosevelt had considered storehouse of natural resources. The extent of issuing a Presidential Proclamation asserting United these resources can only be guessed at and needs States jurisdiction over ocean space and resources careful investigating. beyond the three-mile territorial sea to a water depth The continental shelf extending some 100 to 150 of 100 fathoms. In 1937, Roosevelt also had a rather miles from our shores forms a fine breeding place fully developed concept of establishing a national for fish of all kinds; it is an excellent hiding place marine fisheries management program, apparently for submarines; and since it is a continuation of quite similar to the one established through the our continent, it probably contains oil and other Fishery Conservation and Management Act of 1976, resources similar to those found in our states. almost forty years later. For some reason, such action was not taken. 14 1 suggest the advisability of laying the Instead the United States made a strong diplomatic groundwork now for availing ourselves fully of protest which declared a United States interest in the the riches of this submerged land and in the Alaskan salmon fisheries and, in essence, asserted waters over them. The legal and policy problems jurisdiction over this particular resource. involved, both international and domestic, are many and complex. In the international field, it It must be taken as a sound principle of justice may be necessary to evolve new concepts of that an industry such as described which has been maritime territorial limits beyond three miles, built up by the nationals of one country cannot in and of rights to occupy and exploit the surface all fairness be left to be destroyed by the and subsoil of the open sea. It may, therefore, be nationals of other countries. The American important to consider the matter in the negotia- government believes that the right or obligation tion of any treaties of peace which follow the to protect the Alaska salmon fisheries is not only war. In the domestic field, one of the perplexing overwhelmingly sustained by conditions of their questions would be that of the respective development and perpetuation, but that it is a sovereign and proprietary roles of the Federal matter which must be regarded as important in Government and of the several coastal states. the comity of the nations concerned." I recommend, therefore, that this Department, These issues diminished in importance as the threat in collaboration with the National Resources of war increased and did not again receive serious at- Planning Board, and the Department of State, tention until 1943. However, in 1939 President and Justice now study the many aspects of such Roosevelt did use Presidential authority to assert a an undertaking and submit their findings and degree of national jurisdiction over a large portion of conclusions to you as expeditiously as possible. If ocean space by creating a 200-mile wide national you should agree, I would undertake to have ocean defense zone, which was not removed until af- these Departments and agencies designate ter the Second World War. representatives to undertake this joint study." (Emphasis added.) IV. A National Marine Resources Policy Study (1943- On June 9, 1943, President Roosevelt responded by 1945) sending a memorandum to the Secretary of State: In June of 1943, Harold Ickes proposed to Presi- I think Harold Ickes has the right slant on this. dent Roosevelt that a national marine resources For many years, I have felt that the old three- policy study be carried out. He proposed, as the text mile limit or twenty-mile limit should be super- 13 Ibid. , ceded by a rule of common sense. For instance, 14 This is another area in which additional research is needed, the Gulf of Mexico is bounded on the south by especially within State Department files. 11 Department of State, op. cit. 16 Ibid. 10 Mexico and on the north by the United States. In B. State Department Concept parts of the Gulf, shallow water extends very The Department of State strongly disagreed with many miles offshore. It seems to me that the the Department of the Interior concept. In Ocean Mexican government should be entitled to drill Space Rights" the author, Lawrence Juda, suggests for oil in the southern half of the Gulf and we in that the conflict which emerged at this time between the northern half of the Gulf. That would be far Interior and State may have, to some degree, been a more sensible than allowing some European na- "turf" fight over which Department would have con- tion, for example, to come in there and drill. trol of this new national marine program. It is dif- Another case which we have all talked about ficult to sort out such dynamics after the fact, and it is relates to the shelf in the bend of Alaska. unwise to place too much emphasis upon such fac- Japanese fishing vessels netted habitually for tors. But it would appear that this was a significant salmon and crabs twenty-five, thirty or forty element in the policy formation process and should miles offshore, catching them on their way to the be considered when evaluating the management ap- shores and rivers of Alaska for the purpose of proach that was finally adopted. Thus part of the spawning. conflict was about, even if not explicitly stated, which Would you agree to setting up a Board as he department of the Federal Government would have suggests, with representatives of the State authority over and responsibility for national marine Department, Interior Department, National resources programs and policies. Resources Planning Board, and the Department The other part of the conflict involved a clash bet- of Justice?" ween domestic management concepts and needs and As a result of this memo, a national marine policy foreign policy factors, although at times it is difficult study commenced, and the two principal participants to fully separate conceptual differences from "turf" were the Department of the Interior and the Depart- posturings. The Department of State urged that the ment of State. During the next eighteen months, this United States not create a unified ocean management study group attempted to develop proposals for a regime, and not extend its territorial sea outward national marine policy, and by December of 1944, In- beyond its present three-mile limit. The Department terior and State had reached an agreement, which of State claimed that other nations might not accept a was subsequently approved by Roosevelt on March unilateral extension of national jurisdiction over 31, 1945. The decisions reached during this policy ocean space or resources, that other nations might formulation process were, at the least, major determi- retaliate by blocking the United States from ocean nants of the basic structure of United States ocean areas adjacent to their coasts, and that resource programs and policies up to the present time and thus management could be accomplished without the need are of particular importance in understanding the for a unified ocean regime. direction and character of government activity in the One month prior to Ickes' memo to President ocean. Roosevelt, the Department of State had established a The policy study was marked by a series of major Departmental Committee on Marine Resources. This committee had been established in recognition of disagreements and even confrontations between the 'pending bills in Congress (territorial sea), interest in Department of the Interior and the Department of the Interior Department, and increasing pressure of State, each of which had its own ideas about how to public opinion that something be done about such construct a national maritime or ocean management resources."" It appears to have operated as a policy program. committee. A. Interior Department Concept The Department of State and the Department of the Interior had widely different perspectives on Harold Ickes conceived of a national marine national marine resources interests and appropriate resources management system that would include policies, and the issue was resolved by dividing the ocean resources, water, and submerged lands from jurisdiction between Interior and State and using ele- the shoreline to the outer edge of the continental ments of the philosophy of each. shelf. Using the terminology developed in Chapter One, he seems to have been supporting the equivalent C. Segmenting the Ocean and its Resources of a single Federal management regime that would deal with oil and gas, fisheries, perhaps national By December of 1944, the Departments of Interior defense (see his June memo above), and all other and State had worked out a mutually agreeable ap- marine resource management issues. Although he proach. The essence of this agreement follows: may not have openly advocated it, one can assume 1. Ocean space. For purposes of United States that Ickes at least considered the possibility of policy and management programs, ocean space placing this marine resources management program within the Department of the Interior. Lawrence Juda, Ocean Space Rights (New York: Praeger, 1975). Summary Report on Department Fisheries Committee and Infor- 17 Ibid. mal Discussions with Canada and New Foundland, September 9, 1944, Department of State file #811.0145/11-2844. would be divided into two components: submerged expressed some concern that the proclamation on lands and ocean water. submerged lands might prejudice the claims of the The submerged lands of the continental shelf would states regarding the territorial sea. Whether Ickes had be incorporated into what shall be referred to in this intended such an effect or not, he agreed to the inser- report as a single management "regime." It was tion of language which explicitly declared that the question of state/Federal ownership of the territorial agreed that the United States would declare authority sea would not be affected. to manage these submerged lands and the resources through the mechanism of Presidential Proclamation. Finally, on September 28, 1945, Presidential Proclamations on the Continental Shelf (No. 2667) Ocean waters above these submerged lands would and on Fisheries (No. 2668) were issued. They con- be explicitly isolated from this submerged lands stitute a unilateral claim to the resources of the con- regime and would not be structured as a management tinental shelf and the right to establish a fishery con- unit or regime. Instead, the unit of management for servation zone in waters above those submerged this portion of ocean space would be the individual lands. resources or activities taking place within ocean The Truman Proclamation I on the Continental waters. The waters themselves would be considered Shelf, September 28, 1945, stated in part: as "high seas" with no assertion of national interest or aIppropriation. Having concern for the urgency of conserving 2. Ocean resources. and prudently utilizing its natural resources, the government of the United States regards the � Oil and gas and other resources on, in, or un- natural resources of the subsoil and seabed of the der the submerged lands were to be claimed as continental shelf beneath the high seas but con- being under the sovereign control (in contrast tiguous to the coasts of the United States as ap- with ownership) out to a depth of 600 feet and pertaining to the United States, subject to its would be managed through the submerged jurisdiction and control .... The character as lands "regime." high seas of the waters above the continental � Fisheries would be managed separately from shelf and the right to their free and unimpeded the submerged lands program and would not navigation are in no way thus affected. be controlled within the context of an ocean The Truman Proclamation on Fisheries, Septem- water management effort. This aspect of the ber 28, 1945, said: agreement did not deal explicitly with manage- ment of the water component of ocean space. In view of the pressing need for conservation and protection of fishery resources, the govern- In keeping with these two different approaches, it ment of the United States regards it as proper to was agreed that the Department of the Interior would establish conservation zones in those areas of the prepare a draft proclamation on the submerged lands high seas contiguous to the coasts of the United management regime, and the Department of State States wherein fishing activities have been or in would prepare a draft proclamation on marine the future may be developed and maintained on a fisheries management.10 On March 31,1945, President substantial scale. Where such activities have been Roosevelt approved both proclarnations. or shall hereafter be developed and maintained It should be remembered that the concept Of by its nationals alone, the United States regards "management of ocean space" and/or ocean it as proper to establish explicitly bounded con- resources for purposes other than national defense servation zones in which fishing activities shall be beyond a three-mile territorial sea was, at this time, a subject to the regulation and control of the Un- new idea. It is therefore understandable that aside ited States .... The right of any state@ [nation] to establish conservation zones off its shores in ac- from any interdepartmental maneuvers, the Depart- ment of State insisted upon consulting with Great cordance with the above principles is conceded, Britain, U.S.S.R., Mexico, France, Denmark, provided that corresponding recognition is given Canada, and Norway to see what their reaction to any fishing interests of nationals of the United would be to such an action before actually issuing the States which may exist in such areas. The charac- proclamation. This caused delay, and then on April ter as high seas of the areas in which such conser- 12, 1945, President Roosevelt died. By early May, vation zones are established and the right to their President Truman had agreed -to the two proclama- free and unimpeded navigation are in no way tions, but their issuance was further delayed by ad- thus affected. ditional international consultations and the appoint- The full text of each Proclamation is in the Appendix. ment of a new Secretary of State. A final delay occurred when the U.S. Senate V. Achieving a Legislative Basis for Governmental Foreign Relations and Public Lands Committees Control in the Oceans: 1946-1953 Memorandum on the Meeting in Assistant Secretary of Stale Long's Office, July 25, 1944, State Department file #811.0145/7- It had taken approximately eight years for the 2644. initial concepts and efforts of Ickes and Roosevelt to 12 be translated into a national statement of authority interests, and they were strongly opposed to the over some portions of ocean space and ocean establishment of Federal authority. resources beyond the three-mile territorial sea. It was In January of 1946, Truman proposed Edwin to take another eight years to resolve the issue of state Pauley as Under Secretary of the Navy. According to and Federal jurisdictional interests within the Robert Donovan in Conflict and Crisis," Truman territorial sea and to obtain legislative support for the wanted to assert more Presidential control over the continental shelf management regime which Truman Navy and other military departments and thought had proclaimed by Executive Order. that Pauley was strong enough to assist him in these efforts. However, it would appear that Truman mis- A. Congressional Action calculated how vulnerable Pauley would be, Many coastal states perceived the Truman especially in light of Navy opposition to his nomina- Proclamation as evidence of a new, major effort on tion, for Pauley was well known to have significant the part of the Truman administration to wrest con- business connections with the California oil industry. trol of the submerged lands of the territorial sea from The Teapot Dome scandal, in which naval oil the states. The "tidelands oil" issue had escalated to a reserves had been diverted to private industry, was basic confrontation over state versus Federal still a sensitive national issue, and Pauley was soon authority, and by 1945 many states were demanding opposed by those who thought that someone with Congressional action, declaring the submerged lands major oil interests should not be given administrative within three miles of shore to be the property of the authority over national naval oil reserves. states. During the 79th session of Congress, 19 bills In February of 1946, Harold Ickes was called to were introduced attempting to block what many testify regarding Pauley's nomination, and Ickes ac- states saw as a Federal attempt to steal state lands. By cused Pauley of having asked him shortly after the 1946 both the House and Senate had passed legisla- death of Roosevelt to quash the Federal court action tion which removed any Federal claim, interest, right against California. According to Ickes, Pauley had or title to the submerged lands of the territorial sea. promised major campaign contributions from California oil companies to the Democratic Party, if B. Executive Branch Action the Federal attempt to gain control of offshore oil President Truman appears to have been personally would be dropped. Such accusations were politically interested in the issue of territorial sea jurisdiction, embarrassing to Truman, but he continued to sup- and during his administration, efforts to assert port Pauley's nomination. Ickes resigned on Federal authority were intensified. As indicated February 13, 1946, contributing to a growing Senate previously, there had been, until the 1930's, a un- concern over Pauley's possible conflict of interest, iform assumption of state control over submerged and Pauley finally removed his name from considera- lands. In the late 1920's, the U.S. Supreme Court had tion. This incident emphasizes the intensity of the found no reason to challenge the California offshore debate over the tidelands issue and may have served leasing program. However, on May 29, 1945, the to strengthen Truman's resolve to gain Federal con- U.S. Department of Justice filed a suit in the U.S. dis- trol over this portion of ocean space and ocean trict court in Los Angeles challenging ownership of resources. the mineral deposits in the tidelands of the territorial sea. In September of that same year, Truman issued C. The United States Supreme Court the proclamations on the continental shelf and The Federal challenge of California's ownership of filieries, and in August of 1946 he vetoed the offshore oil, which Ickes accused Pauley of having at- territorial sea "quitclaim" legislation which had been tempted to stop, eventually reached the U.S. passed by both the House and Senate. Supreme Court. In 1947 the Supreme Court ruled in United States v. California that flie- states did not Resignation of Harold Ickes own submerged lands of the territorial sea and that There were many individuals and interest groups, the Federal Government had full authority over these both within government and the private sector, who resources. were concerned about the outcome of this dispute We decide for the reasons we have stated that over territorial sea jurisdiction. As will be discussed California is not the owner of the three-mile in Chapter Four, the Navy was concerned because it marginal belt along its coast, and that the saw offshore oil as a national resource, as an impor- Federal Government rather than the state has tant supply of Naval fuel, and wanted it under paramount rights in and power over that belt, an Federal, and specifically Navy, control. Another incident to which is full dominion over the group with an obvious and strong interest was the oil resources of the soil under that water area, industry, especially in California which at this time including oil." remained the principle location of offshore oil 21 Robert J. Donovan, Conflict and Crisis (New York: W. W. Nor- production. The major companies felt that the state ton and Co., 1977), pp. 177-184. leasing system was workable and favorable to their 22 332 U.S. 19, 38-39 (1947). 13 Ownership versus Authority to Control gas, and the Gulf of Mexico had become a "frontier" area for offshore exploration and production. On Although the Supreme Court determined that December 21, 1948, the United States filed motions California did not own these submerged lands, and for leave to file complaints against Texas and that the Federal Government had full authority to Louisiana, challenging their ownership of offshore control them, it did not say that the Federal Govern- minerals, and the cases were argued before the U.S. ment owned these lands or resources. Justice Supreme Court in March of 1950 (United States v. Frankfurter in a minority dissent, observed that Louisiana and United States v. Texas). In both cases finding California did not own the tidelands was a the Court again held that because of Federal long way from saying that the United States actually authority over foreign affairs, interstate commerce, did own them, and Justice Reed felt that California the waging of war, treaties, and defense of the shore, did own these resources, but that state ownership need it was necessary that the Federal Government have not prevent necessary Federal control or regulation. physical control of the submerged lands of the Ownership in California would not interfere in territorial sea, precluding state ownership. Thus any way with the needs or rights of the United Justice Douglas, writing the majority opinion in States in war or peace. The power of the United Louisiana stated that: States is plenary over these undersea lands ... protection and control of the area precisely@ as it is over every river, farm, mine and [territorial sea] are indeed functions of national factory of the nation." external sovereignty .... The marginal sea is a In an effort to obtain a clear statement of Federal national, not a state concern. National interests, ownership from the court, the United States submit- national responsibilities, national concerns are ted a proposed decree to the Supreme Court on Sep- involved. The problems of commerce, national tember 13, 1947, which read in part: defense, relations with other powers, war and The United States of America is now, and has peace focus here. National rights must therefore been at all times pertinent thereto, possessed of be paramount in that area." paramount rights of proprietorship in, and full However, as Bartley suggests, the Court never dominion and power over, the lands, minerals, clearly demonstrated why these constitutional and other things underlying the Pacific Ocean authorities warranted or allowed the removal of state lying seaward of the ordinary low-water mark on ownership. Justice Reed stated this opinion in a dis- the coast of California, and outside of the inland sent to the majority decision in the Texas case: waters, extending seaward three nautical The needs of defense and foreign affairs alone miles . . . ."' (Emphasis added.) cannot transfer ownership of an ocean bed from When the final order and decree were handed a state to the Federal Government any more than down on October 27, 1947, the words "of they could transfer iron ore under uplands from proprietorship" had been removed, thus emphasizing state to Federal ownership .21 that the Court was specifically not declaring title to Rather than having resolved the issues involved, be held by the Federal Government, perhaps "in- these three Supreme Court decisions served to inten- viting" Congressional action on the issue. sify both the debate and Congressional resolve to 0 Congress/White House Deadlock secure control by the coastal states through national After the United States v. California case, the At- legislation. In his dissenting comments upon the torney General of the United States held that the United States v. Texas decision, Justice Frankfurter Federal Mineral Leasing Act of 1920 was not a suf- echoed the feelings of those who supported control ficient basis for the Department of the Interior to by the states, apparently including the majority of assert administrative authority over oil production in Congress. the territorial sea. Thus, new legislation would be ... the submerged lands now in controversy needed. However, Congress supported state control were part of the domain of Texas when she was of the submerged lands and would not pass such on her own. The Court now decided that when legislation unless Truman would accept state control Texas entered the Union she lost what she had of the territorial sea. Unable to gain legislative and the United States acquired it. How that shift authority, the Department of the Interior claimed came to pass remains for me a puzzle." authority to control the resources of the outer con- tinental shelf under direction of an Executive Order D. Increased Pressure for Resolution issued for that purpose by Truman." By the early 1950's the debate over the submerged 0 Texas and Louisiana lands of the territorial sea was a major national By the 1940's California was no longer the only problem. President Truman refused to accept state state with recoverable deposits of offshore oil and/or ownership or control. Legislation assigning full con- 23 332 U.S. 19, 42 (1947). 26 339 U.S. 699, 704 (1950). 24 Bartley, p. 190. 21 339 U.S. 707, 721 (1950). 21 Executive Order 9633 (10 Fed. Reg. 12305), 1945. 2- 339 U.S. 707, 724 (1950). 14 trol to the Federal Government could not get out of However, for the first time in history, the United committee. The Korean conflict had begun, Iranian States claimed full control and authority over the oil became scarce, and the United States had major resources and lands of the outer continental shelf. energy commitments to Europe and Japan. Because Although the United States had previously of the uncertainties caused by the continuance of this established ocean defense zones during time of war debate, offshore production in California was down and had claimed revenue collection authority as far and also declined in the Gulf of Mexico. as 60 miles to sea, this new claim over submerged Submerged lands legislation became entangled in lands was the equivalent of a unilateral extension of debates as to whether or not to admit Hawaii and national territory into a portion of ocean space that Alaska as states, but by May of 1952 both the House had theretofore been considered as international and Senate had again passed legislation which "high seas." The Federal Government was also now declared that the states had full authority over the involved in a major natural resources management submerged lands of the territorial sea. In a change effort, through its assumption of authority over oil from previous legislaion, Congress now gave recogni- and gas resources of continental shelf lands." tion to the authority of the Federal Government over outer continental shelf (OCS) lands beyond the The Submerged Lands Act territorial sea. Characterizing this legislation as The provisions of the Submerged Lands Act reflect "corruption" and 6'robbery in broad daylight - and the debate which had preceeded its passage and on a colossal scale,"" Truman vetoed the measure on emphasized that the primary concern of the coastal May 29, 1952. states at that time was in control of offshore minerals and fisheries. The Submerged Lands Act is quitclaim E. Resolution of the Dispute legislation to the extent that any Federal claim to ow- The issue of state versus Federal control of nership or to the authority to manage or lease offshore-lands and resources was an important issue resources or submerged lands is removed. Clear title in the 1952 Presidential campaign, although the is assigned to the states. However, the Federal degree to which it influenced the outcome is difficult Government retains authority over commerce, to determine. Adlai Stevenson was stroongly opposed navigation, international agreements, and national to state ownership, and Dwight D. Eisenhower was defense. These "paramount" authorities are exten- strongly in support of it. In some of the oil states such sive, and to a certain degree, constitute a pervasive as Texas, this issue may have been a decisive factor. control over the waters of the territorial sea, conflic- ting with or overshadowing state authority to manage President Truman had strongly opposed state natural resources or the submerged lands. jurisdiction over ocean resources and was annoyed by The distribution of authority between Federal and Congress' refusal to provide his administration with a state government contained in the Submerged Lands legislative mechanism for OCS mineral leasing. After Act is shown in Table 1. The complete text of the Act Eisenhower was elected, and it became clear that is contained in the Appendix. The OCS Lands Act is Congress would soon be able to get Presidential a major element of the existing U.S. domestic ocean agreement for a tidelands quitclaim law, Truman management regime and the reader is encouraged to used his Presidential authority, but it only added review it in its entirety. more confusion to the issue. On January 16, 1953, as one of his last Presidential actions, Truman issued Executive Order 10426, which transferred authority VI. Trying Out the System: The Intervening Years and control over OCS lands and resources from the (1954 to the 1970's) Department of the Interior to the Department of the Once the Submerged Lands Act and the Outer Navy." It was to take many months and legislative Continental Shelf Lands Act were enacted, the action by Congress to undo that action. jurisdictional systems they created remained basically Soon after taking office, Eisenhower signed the unchanged for twenty years. The only major events Submerged Lands Act of 1953 and by the fall of 1953 involving national authority to control ocean space had signed the Outer Continental Shelf Lands Act and resources were the conclusion of the Geneva which represented a legislative implementation of the Convention on the Law of the Sea in 1958 and the Truman Proclamation of 1945, the legislation which establishment of a 9-mile U.S. fisheries management Truman had unsuccessfully attempted to obtain for zone beyond the territorial sea in 1966. But it was not eight years. Thus after fifteen years of debate, public really until the 1970's that this system was authority over ocean space and ocean resources was significantly modified. detailed for the first time in national legislation. The By the 1950's, general international support had coastal states retained most, if not all, of the emerged for an international agreement on a regime authority they had exercised prior to the debate. for the high seas, and this support was to lead to the " "President Assails Offshore Oil Bill," The New kork Times, Vol. CI No. 34,448, p. 1. " Lawrence Juda, in Ocean Space Rights (supra, 18) provides a " See Chapter Four for further discussion of role of Navy in this good description of how these conflicting interests interacted debate. during this period. 15 Table I The Submerged Lands Act of 1953 Distribution of Authority between State and Federal Government State Federal � Ownership of submerged lands of territorial During time of war, or when necessary for sea. national defense Federal Government has first � Ownership of natural resources of both waters refusal to purchase any or all of the natural and submerged lands of territorial sea, resources of the territorial sea, or to acquire including, but not limited to; and use any portion of the submerged lands. - oil,' The Federal Government retains control of the - gas, waters and lands of the territorial sea for pur- - all other minerals, poses of navigation, flood control, and the - fish, , production of power. - shrimp, "The United States retains all its navigational - oysters, servitude and rights in and powers of regula- - clams, tion and control of said lands and navigable - crabs, waters for the constitutional purposes of - lobsters, commerce, navigation, national defense, and - sponges, international affairs, all of which shall be - kelp, paramount to, but shall not be deemed to - other marine animal and plant life. include, proprietary rights of ownership or the � The right and power to manage, administer, rights or management, administration, leasing, lease, develop, and use the submerged lands use, and development of the lands and natural and natural resources of the territorial sea. resources which are specifically recognized, confirmed, established, and vested in and assigned to the respective states ...... (Sec. 6 (a)). Emphasis added. 1958 Geneva Conference on the Law of the Sea. The territorial seas outward in a similar fashion, the Un- need to define national interests and strategies for ited States laid full jurisdictional claim only to the this conference helped to add more detail to United resources of the submerged land and not to ocean States ocean-related programs and policies, and the waters. This pattern of jurisdictional authority, or basic result of the Geneva Conference was to gain ocean regime, is depicted in Figures 3, 4 and 5. temporary international acceptance (although it was far from unanimous) of the ocean "regime" which A. Seeking International Acceptance had evolved in the United States between 1937 and 1953. It should be noted that the 1958 Geneva Con- Although the distinction between jurisdiction over ference was marked by a failure to agree on three im- submerged lands and that over the ocean water might portant ocean matters: serve the interests of a major maritime power, such as the United States, there were many nations which (1) exclusive coastal state jurisdiction over had no large navy, no large deepwater fishing fleet, fisheries; no advanced offshore drilling technology. For these nations, national ocean interest was in the collection (2) an outer boundary of the continental shelf; of revenues, the development of offshore resources, and and the military protection of national territory. For (3) the extent of the territorial sea. these nations, particularly those in South America, there was little reason to treat ocean waters By means of the Truman Proclamation of 1945 and separately from ocean submerged lands. The the Outer Continental Shelf Lands Act of 1953, the "territorial seas" proclaimed by some Latin United States had greatly extended the amount of American States during this era did not conform to ocean space and resources over which it claimed traditional territorial sea claims, but were more, in ef- territorial rights. However, as described above, in an fect, economic zones. Also, many of these claims effort to minimize the adverse impacts upon United were made for negotiating leverage in international States interests if other nations should extend their forums and had little practical effect. 16 ZY Figure 3: Until the 1930's there was general international recognition of two types of ocean space. First, there was a territorial sea (1) which included submerged lands, waters, and resources out to a distance of three miles. Beyond these national territorial seas was the International "high seas" (2). This portion of the ocean was controlled by customary use and certain provisions of international law and multinational agreements or treaties. 100 TO 150 MILES OOOOF @Z, oo Figure 4: /`6_ In 1937 the Roosevelt Administration considered the creation of a national ocean management "regime" which would incorporate but extend beyond the three-mile territorial sea to include the submerged lands, waters, and resources of the ocean out to a distance of 100 to 150 miles from shore. Roosevelt contemplated the use of an Executive Order to es- tablish this zone, one of the primary purposes of which would be the regulation of fisheries. 17 N ...................... .............................. 2 ----------- . . . . . . . .. . . . . . . . . ............... . . . . . . . . ... . . X-X-X-X-X-X-: . . . . . . . . . . . . . . . . . . . . . . . :::-X.X-X-:-X X-X . . . . . . :X-X-X-X-:-X X.: .. . . . ... . X. X X. Figure 5: In 1945 the United States established two ocean management systems or regimes, both by Presidential proclamation. These included a continental shelf regime (4) extending from beyond the territorial sea to a water depth of 100 fathoms, and a fisheries management zone (3) extending the same distance. In 1953 jurisdiction over the submerged lands and resources of the territorial sea was legislatively assigned to coastal states (2), although control over the water of the territorial sea was not specified. (1) The Outer Continental Shelf Lands Act followed the earlier 1945 Truman OCS proclamation. Legislation was not established for a fisheries management zone or for ocean waters above the continental shelf. 1. Southern Hemisphere Conflicts system developed for the ocean space and resources During the early 1950's, the Organization of adjacent to its shores:" American States and the Inter-American Council of a. A three-mile territorial sea over which a Jurists initiated a series of conferences and meetings coastal nation had sovereign rights but would on the subject of territorial waters and related mat- allow innocent passage of ships; ters. The issue was highly controversial." Typical of the debate was a resolution adopted by the Inter- b. A nine-mile contiguous zone in which coastal American Council of Jurists in January of 1956, nations were recognized as having certain which stated in part: authorities. to exercise national control, especially over customs, fiscal, immigration, The distance of three miles as the limit of and sanitation matters; territorial waters is insufficient and does not con- stitute a general rule of international law. c. A high sea which included the surface waters Therefore, the enlargement of the zone of the sea and water column extending beyond the traditionally called 'territorial waters' is territorial sea over which no country could justifiable." claim jurisdiction and all nations were free to 2. 1958 Geneva Conventions utilize; The Geneva Conference on the Law of the Sea led d. A convention on fishing and conservation of to the adoption of four conventions regarding ocean living resources on the high seas which use and national extensions of jurisdiction. While not recognized both national and multinational all nations agreed to or signed the conventions, they authorities and responsibilities; and represented a degree of international consensus and e. A continental shelf over which a coastal na- constitute the basis of the international ocean regime tion could exert exclusive resource jurisdic- in force in 1978, although the UNCLOS negotiations tion extending from shore to a depth of 200 underway could in-time lead to significant shifts. The meters or beyond that limit to where the approach at Geneva reflected the United States depth of the superjacent water admits of Ibid., p. 34. Also note that the word nation has been substituted for the word state to avoid confusion between individual states Juda, pp. 2-36. of the United States and foreign nations which are often referred Ibid., P. 3. to as states. 18 exploitation of the natural resources of the seabed resources" beyond areas of national control. said area. The regime should provide for the collection of B. The Beginnings of a New Direction substantial mineral royalties to be used for in- ternational community purposes, particularly The Geneva Conventions were by no means a final economic assistance to developing countries. It solution to the problems of national efforts to control should also establish general rules to prevent un- ocean space and resources. As an example, by the reasonable interference with other users of the 1960's several nations were exerting heavy fishing ocean, to protect the ocean from pollution, to pressure upon fisheries near U.S. shores. Reflecting assure the integrity of the investment necessary the concept developed by Roosevelt in 1937 and for such exploitation, and to provide for peaceful proclaimed by Truman in 1945, the U.S. Congress in and compulsory settlement of disputes." 1966 established a 12-mile contiguous fishery zone (P.L. 89 - 658) within which the United States asser- Many nations were surprised by this proposal. The ted the right to control all fishing activities. This was surprise resulted not so much from the concepts in accord with the actions of other nations which presented, since these had been developing for several likewise had established 12-mile fishery zones and in years, but from the fact that the United States would some instances 12-mile territorial seas as well. Such so strongly support them, at the Presidential level. As actions could be seen as a shift away from the spirit of Juda related, this national ocean policy did not have the 1958 Geneva Conventions. unanimous national support, with several interest groups objecting to the United States giving up all During the 1960's several other nations also began claims over ocean space and resources beyond the to exert increased control over ocean space and 200-meter depth. resources, and it became increasingly clear that the The concept supported by President Nixon in 1970 provisions of the Geneva Convention pertaining to is, with some modifications, currently being con- living resources were not being adhered to. During sidered by the United States and approximately 150 this period, ocean use greatly increased, with more other nations at the Third International Conference fishing, more offshore oil and gas production, more on the Law of the Sea (UNCLOS). While it is not vessel traffic, and more military activities and possible to determine what the outcome of those facilities. By the late 1960's interest developed within negotiations will be, it would seem possible that cer- the United States to take some new action in order to tain changes in how the United States structures its keep some portion of the ocean free of national claims and to insure an orderly and workable in- ocean policies and programs could result. For exam- ternational ocean regime, one that would regulate the ple: exploitation of seabed resources beyond areas of 0 The territorial sea may be extended from three national control for the benefit of developing nations, to twelve miles, immediately raising the issue as a "common heritage"" of mankind. of what shall be the role of state and Federal Government within this expanded zone. C. The Nixon Proposal 0 The 9-mile contiguous zone concept could be extended to form a 200-mile wide "economic In May of 1970, President Nixon proposed to the zone" which might include submerged lands, United Nations that: water, and resources in a management regime . . . all nations adopt as soon as possible a subject to national control but partially treaty under which they would renounce all responsible to an international set of rules, national claims over the natural resources of the thus not being under complete national con- seabed beyond [a depth of 200 meters] and would trol. agree to regard these resources as the common At present, Article 33 of the Informal Composite heritage of mankind .16 Negotiating Text (ICNT), provides that the con- Under the Nixon proposal, the idea was not that tiguous zone may be extended up to a maximum dis- coastal states would renounce "control" per se, but tance of 24 nautical miles from the baselines from rather that they would act as a "trustee" for the in- which the territorial*sea is measured. The concept of ternational community over the non-living resources the economic zone would mean in terms of present of the continental shelf beyond a 200-meter depth, negotiation that the coastal state has sovereign rights and would contribute substantial resources to the in- over resources out to a distance 200 miles from its shore, with residual rights reserved for international ternational community resulting from exploitation in users. In addition, the continental shelf or 66 sub- that area. Nixon also proposed the establishment of merged lands" would be recognized as extending an "international regime for the exploitation o beyond 200 miles in cases where this applies. There is also a provision (Article 2 of the ICNT) for revenue It is believed that this term was coined in the Johnson Ad- sharing to the international community with respect ministration which was quite active in ocean matters, to the exploitation of the shelf beyond 200 miles. emphasizing particularly the importance of ocean resources to the U.S. and the need for international cooperation. Juda, pp. 202-4. 37 Ibid. 19 But perhaps most important, no matter what the policies, not only by the attitudes and actions of in- outcome of the UNCLOS negotiations, it appears dividual foreign nations, but also by an increasingly that the United States will be increasingly con- organized international community of ocean users. strained in the future in its ocean programs and 20 CHAPTER THREE AN ANALYSIS OF SELECTED OCEAN CONTROL PROGRAMS I. Introduction a result, programs were established, dealing with air quality, water quality, endangered species, flooding, Federal Ocean Activities in the 1970's wetland protection, marine mammals, fisheries, ocean dumping, deepwater ports, vessel traffic con- We have seen that early efforts of the Federal trol, and coordinated planning of coastal areas. And Government from the late 1930's until the early as the number of Federal programs increased, so did 1950's were to assert its authority over the territorial the difficulty of fitting them together in some sea and the submerged lands of the outer continental reasonable way, both in terms of national policy and shelf. After 1953 the issue of jurisdiction was, at least of operation. Thus the management process, the temporarily, resolved, and the actual Federal ocean, designing and administering of multiple public "management" efforts which ensued were almost en- policies, goals, regulations and procedures, to the ex- tirely confined to outer continental shelf oil and gas tent that they are individually effective and collec- leasing. There were some ongoing programs related tively compatible, has become an important part of to expansions of navigation, the merchant marine, federal "ocean management" discussion and effort. and national security. Considerable amounts of Federal money were also spent in ocean-related For the purposes of this study, the major Federal research. However, it was not until the 1970's that ocean-related management programs established Federal Government programs began to have the since 1970 are for: variety and degree of control or regulation of ocean - de Iepwater ports, space, resources, and activities which now exists. - marine sanctuaries, During the 1960's several studies had attempted to - fisheries conservation and management, and define the national interest in the ocean and the role - coastal zone management, of the Federal Government in carrying out that in- Collectively these programs typify the kind of terest. Several are summarized in the National In- degree of action that the Federal Government is terest section of Chapter Four. These studies ad- presently attempting to exercise upon ocean vocated in various ways an increase in Federal ocean- resources, activities, and space within 200 miles of related activities, and this effort accounted in part for shore. In the discussion which follows, an effort is the increased Federal ocean involvement of the made to identify the following elements in each of the 1970's. In addition, the decade of the 1960's was a programs considered. period of new and increased ocean and coastal use: 0 Why action is being attempted. the amount of oil transported by tanker into the Un- ited States increased significantly; several foreign na- 0 What specifically is being managed. tions developed modern fishing fleets which by the * How the control effort is structured. mid-1960's were exerting heavy fishing pressure upon 0 What mechanisms exist for coordinating ocean, waters near the United States; major public policies and programs. and private recreational developments modified the shore, removing wetlands and increasing human 0 How the particular program fits within the pressure upon the coastal environment; more power ocean management "regimes" established by plants, roads, and homes were constructed .near the the United States in 1945 and 1953. shore, changing the amount and quality of runoff and further reducing the number of beaches and 11. Deepwater Ports wetlands; a growing amount of dredge spoil, sewage sludge and other material was dumped offshore. A. Background Storm and erosion became public management issues During the late 1960's and early 1970's, the United as more shoreline property was threatened by these States became increasingly dependent upon tanker developments. shipments of oil. During this same period of time, a Extensive ocean research undertaken in the 1960's new class of "super-tankers" with a capacity of from combined with several national studies and a growing 100,000 to 500,000 deadweight tons became the public concern to create a demand for new Federal prevalent means of long distance oil transport. management programs dealing with these matters. As However, most United States ports and waterways 21 are too shallow to accommodate these deepdraft approach, as exemplified by the following 1975 vessels. By the early 1970's, U.S. ports had become declaration by Secretary of State Henry Kissinger: inaccessible to more than 55% of world tanker capacity, due to the increasing size of these vessels. Within two hundred miles of the shore are some of the world's more important fishing By the 1970's, there was strong commercial interest grounds as well as substantial deposits of within the United States in the construction of petroleum, natural gas, and minerals. This has deepwater ports, which, as their name implies, would led some coastal [nations] to seek full sovereignty provide tanker mooring and off-loading facilities in over this zone. These claims ... are unacceptable deep water, to accommodate the modern class of to the United States. To accept them would bring large tankers. Both industry and the Federal govern- 30 precent of the oceans under national ment believed that some form of regulation or con- territorial control - the very areas which most of trol over deepwater ports would be needed. The the world's shipping travels.' primary objectives in establishing federal manage- ment of deepwater ports beyond the territorial sea While the United States wanted other nations to were, as stated in the Deepwater Port Act of 1974 refrain from claiming national ownership or full (P.L. 93-627) to: sovereign control over ocean waters beyond a narrow territorial sea, the United States has itself found it 1. Authorize and regulate the location, ownership, desirable or necessary to establish selective manage- construction, and operation of deepwater ports ment functions over ocean activities beyond its own in waters beyond the territorial limits of the Un- territorial sea. ited States; The problem faced by the United States in the 2. Provide for the protection of the marine and 1940's and in the 1970's when the Deepwater Port coastal environment to prevent or minimize any Act (DPA) was enacted, was how to establish some adverse impact which might occur as a con- degree of control over ocean waters without under- sequence of the development of such ports; mining its insistence that other nations not exert full sovereign control over ocean waters adjacent to their 3. Protect the interests of the United States and coasts. The solution for the United States has been, those of adjacent coastal states in the location, since 1945 and as mentioned in Chapter Two of this construction, and operation of deepwater ports; report, to treat ocean waters and ocean submerged and lands as two separate entities, and to assert authority 4. Protect the rights and responsibilities of states and undertake management in two different ways for and communities to regulate growth, determine each of these entities. land use, and otherwise protect the environment During the period from 1937 until 1944, Ickes had in accordance with law. (Sec. 2(4)). advocated establishment of a 150 mile wide national However, the United States faced a basic problem ocean control concept that combined ocean waters, in attempting to establish formal governmental resources, and submerged lands in a single regime.' management options for deepwater ports because Instead, the submerged lands beyond the territorial most ocean locations of sufficient depth to accom- sea were established as a national resource manage- modate supertankers are beyond the three-mile ment zone through the Outer Continential Shelf territorial sea. Lands Act of 1953, but the superjacent waters were deliberately not treated as a management unit. This approach has not proven to be fully effective in discouraging other nations from extending B. National Control of Ocean Waters national jurisdictional claims over both water and Since the mid-1940's, the United States has submerged lands to distances ranging from I@ to 200 refrained from claiming the authority to manage miles,' and several observers have criticized what they ocean waters beyond the territorial sea and has also perceived to be "visible hypocrasies" in American attempted to discourage other nations from doing so. ocean policy.' Nonetheless, the United States has per- This policy in particular reflects the concerns of the sisted in this approach, and it is within this conteit Department of the Navy and the American distant- that the Deepwater Port Act and the other programs water fishing industry; its objective is to retain the to be discussed were established. maximum amount of ship and aircraft access to ocean space and superjacent air space in international Cited in Lawrence W. Kaye, "The innocent Passage of and foreign ocean areas. Warships in Foreign Territorial Seas: A Threatened Freedom," San Diego Law Review, Vol. 15, No. 3, p. 587. Durin'g the 1970's when national deepwater port See Chapter I for the use of "regime." legislation was being considered, the United States As of April, 1978, 67 nations claimed a 12 nautical mile territorial sea and 14 claimed a territorial sea of 200 nautical still advocated restraint in extending national con- miles. National Maritime Claims, office of the Geographer, trols beyond the three-mile limit and attempted to Department of State. April 19, 1978. make a strong case for international adoption of that Kaye, p. 594. 22 C. Single Purpose Programs and Multi-Program minimize adverse impact on the marine en- Coordination vironment; Reflecting the foreign policy mentioned above, that the Administrator of the Environmental Congress treated the deepwater port regulatory Protection Agency has found that the project system in legislation as a single purpose ocean control will be consistent with the Clean Air Act, the effort. The Deepwater Ports Act seems to have been Federal Water Pollution Control Act, and the established as a narrowly defined exercise of national Marine Protection, Research and Sanctuaries jurisdiction, and an effort was made to avoid having Act; this assertion of control over ocean waters beyond that the Federal Trade Commission and the the territorial sea appear to be a violation of the Un- Attorney General judge that the project will ited State's own foreign policy. Thus the Act contains not adversely affect competition, restrain a specific disvowal of territorial claims. trade, promote monopolization, or otherwise The Congress declares that nothing in this Act contravene the antitrust laws; shall be construed to affect the legal status of the 0 that he has consulted with the Secretary of the high seas, the superjacent airspace, or the seabed Army, the Secretary of Defense, and the and subsoil, including the continental shelf (Sec. Secretary of State; and 2(b)). 0 that the governor of the adjacent coastal state or states has approved. D. Fitting Mechanisms Additional coordination is achieved through For the reasons explained above, the Deepwater requirements that an environmental impact state- Port Act is legislatively isolated from other ocean- ment be prepared, with the Secretary of Transporta- related programs, including the Outer Continental tion acting as lead agency, and that prior to the Shelf Lands Act. Yet deepwater ports, in their loca- establishment of any safety zones, the Secretary of tion, construction and/or operation have the poten- the Interior, the Secretary of Commerce, the tial for affecting a variety of ocean resources, ocean Secretary of State and the Secretary of Defense must activities, and interest groups. A deepwater port be consulted. represents the long-range commitment of a fairly large portion of ocean space to a single activity with a E. Coastal State Interests need for ancillary shore facilities. A deepwater port could affect fishing activities, merchant shipping, The Deepwater Port Act acknowledges that a migration patterns of marine life, submerged lands deepwater port will require the utilization of the mineral leasing, or shoreside patterns of growth. As territorial sea including, not only surface movement the Act recognizes, there is a need to link, coordinate, but pipelines as well, and may have significant land- or "fit" deepwater ports into the growing web of based impacts upon traditional ports, local com- national coastal and ocean programs, policies and in- munities and coastal regions, especially if ancillary terests. Yet as a matter of long-standing national facilities are constructed. policy, the United States has avoided treating the Coastal states are recognized as having a legitimate ocean waters themselves as an element of manage- interest in activities taking place beyond their coastal ment. zone and are included at several points in the Given these constraints, necessary coordination is deepwater port decision process. All interested states to be achieved through the Secretary of Transporta- are allowed to comment upon any deepwater port tion. In fact, the coordination requirements con- proposal. In addition, the governor of an "adjacent" tained in the Act are rather extensive, certainly far coastal state can prevent the issuance of a Federal more so than in earlier legislation such as the Outer licenk (Sec. 9(b)(1)). As defined in the DPA, Continental Shelf Lands Act of 1953. Several avenues "adjacency" results from being directly connected by for coordination are part of the Act. pipeline with the port, or by being within 15 miles of the proposed port. States can also petition the Prior to issuing a license for a deepwater port, the Secretary of Transportation for an adjacency Secretary of Transportation must determine: designation, which can be granted if "there is a risk of � that its construction and operation will be in damage to the environment of such state equal to or the national interest and consistent with greater than the risk posed to a state directly connec- national security and other national policy ted by pipeline to the proposed deepwater port." goals and objectives, including energy suf- (Sec. 9(a)(2)). ficiency and environmental quality; In 1976, Florida requested designation as an adja- � that i 1t will not unreasonably interfere with in- cent state with regard to proposed deepwater ports ternational navigation or other reasonable use off the coasts of Texas and Louisiana (SEADOCK of the high seas; and LOOP). Florida expressed concern that, if either � that it will be constructed and operated using of these deepwater ports were approved, significant best available technology so as to prevent or additional tanker traffic would be drawn through the 23 straits of Flordia increasing the chance for oil spills. from the operation of the deepwater port. (Sec. Therefore, Florida wished to participate in the 18(f)) Federal licensing process to a degree which only an adjacency designation would allow. The Federal Of- G. International Considerations fice of Coastal Zone Management felt that Florida's The Deepwater Port Act in effect declares U.S. claim had merit, but the U.S. Coast Guard deter- authority to establish ocean water regulatory zones mined that it was not a valid request, and the over which the United States will assert full jurisdic- Secretary of Transportation denied the petition. In tion for the specific purpose of regulating and protec- response, Florida initiated litigation but withdrew it ting deepwater ports. However, since the United after formal assurances were made that in granting States does not consider these ocean waters to be un- deepwater port licenses all or most of Florida's con- der the territorial control of the United States, these cerns would be accounted for. extensive regulations have no force under in- ternational law. In recognition of this, the Act F. Degree and Form of Control requires that the Secretary of State be consulted with Although the United States has avoided com- reference to regulations and specific license regula- prehensive controls over ocean waters, it has tions and specific license requests. The Act authorizes established extensive controls over specific individual the Secretary of State to seek international action and activities or resources located within ocean waters. cooperation in matters such as the acceptance of and The Deepwater Port Act establishes Federal control adherence to safety zones. over the location, ownership, construction and However, the Act does not rely entirely upon operation of deepwater ports beyond the territorial voluntary compliance by ships of foreign nations sea, and upon vessels operating in connection with or with the controls established under the authority of in the vicinity of such deepwater ports: the Act. Section 19(c) specifies that a vessel registered � Construction, operation, or transfer of oil in or flying the flag of a foreign nation will not be through a deepwater port must be licensed un- allowed to call at or utilize a deepwater port unless der authority of the Deepwater Port Act. the foreign nation involved has agreed to recognize � Vessel movement, loading and unloading the concurrent jurisdiction of the United States over procedures, designation and marking of the vessel and its personnel while the vessel is within anchorage areas, maintenance, law enforce- the safety zone. ment, and the equipment, training, and main- tenance required to (a) prevent pollution of the H. Summary marine environment, (b) to clean up any pollu- The Deepwater Port Act establishes control over tants which may be discharged, and (c) to otherwise prevent or minimize any adverse im- an ocean activity (deepwater ports) and also asserts pact from the construction and operation of a the right of the United States to impose jurisdictional deepwater port, are all subject to federal control over a portion of ocean space within the regulation. (Sec. 10(a)) vicinity of deepwater ports. � Regulations for lights and other warning Since the construction and operation of a devices, safety equipment, and other matters deepwater port requires the dedication of some por- relating to the promotion of safety of life and tion of ocean space to a single primary use, the deci- property are required. (Sec. 10(b)) sion process by which a proposed deepwater port is � A safety zone around and including any approved involves a large number of consultations deepwater port must be designated. Within with agencies, programs, and interest groups that this safety zone all installations, structures and might be affected. uses will be regulated for compatibility with Coastal states whether directly connected to the the operation of the deepwater port. (Sec. deepwater port by pipeline, within 15 miles of the 10(d)(1)) port site, or significantly impacted by the port, can � The United States claims the right to inspect specify conditions which must be met. These states records, files, papers, processes, controls and have then the ability to block granting of a license. facilities. (Sec. 13(b)) While the Act is limited to a single activity and to � The discharge of oil into the marine environ-, rather small portions of ocean space (at least at this ment from vessels within the safety zone or time), it nevertheless constitutes a major exertion of from the deepwater port is prohibited. Federal control or management over the ownership, � The Federal Government requires the collec- location, construction, and operation of a deepwater tion of two cents per barrel of oil handled by port and over all ocean activities taking place within the deepwater port for the maintenance of a the vicinity of such ports. It is interesting to compare $100,000,000 deepwater port liability fund this management program with the Marine which will pay for administrative costs and for Sanctuaries Program, both in terms of similarities cleanup costs and damages which may result and differences. 24 III. Marine Sanctuaries no unified set of objectives or purposes emerged in Congress, and there seems to be no detailed state- A. Background ment of objectives, purpose or need contained in the authorizing legislation. Several reports of the late 1960's and early 1970's called attention to growing problems of wetland The idea of setting aside a portion of the ocean for destruction and ocean dumping.' These reports and special protection is not new, having been considered strong public reaction to the Santa Barbara oil spill by President Franklin Roosevelt in 1937 for the of 1969 gave impetus for new Federal programs for Bristol Bay area of Alaska and by President protection and management of certain ocean Theodore Roosevelt in 1908 in the N.W. Hawaiian resource systems. Islands Reserve area.' Wilderness areas and game preserves have been a part of public lands manage- During this time, the concept of establishing ocean ment at both the state and Federal level for many or marine preserves or sanctuaries re-emerged. The years. However, setting aside a portion of ocean basic concept was to set aside certain portions of water as a preserve or sanctuary involves some dif- ocean space as preserves, protected from the ferent or additional considerations from those on pressures and impacts of increased ocean use. Several land. reasons were advanced as justification for such Conceptually, it is difficult to determine which por- sanctuaries.' Supporters of the sanctuaries concept wanted to establish ocean areas in which offshore oil tions of ocean waters can be preserved or restored by and gas production would be prohibited, reflecting designation as a sanctuary. Unlike similar areas on concern over the Santa Barbara spill. Another pur- land, any given volume of ocean water is not fixed in pose suggested was to assure the preservation of some time or space. Impacts from thermal change, as well natural ocean areas for continued scientific research as noise and chemical pollutants tend to migrate and monitoring. In addition, there was some concern across boundaries and through food chains. If the on the part of Congress as to the potential ocean im- purpose of a marine sanctuary is to maintain some pacts of pending federal clean water legislation. This segment of the ocean in its present form, it is difficult new national program would require major increases to determine with precision what activities and in sewage treatment, producing large amounts of parameters need to be controlled. There is much that sewage sludge. There was concern that this sludge remains unknown about how the ocean reacts to might be dumped into the ocean, in effect, human activities. In fact, Title 11 of the Marine transferring water quality problems from nearshore Protection, Research, and Sanctuaries Act directs the to offshore areas. Secretary of Commerce to initiate: After considerable discussion and debate, ... a comprehensive and continuing program authorization for the establishment of estuarine of research with respect to the possible long- sanctuaries was provided in Section 312 (now 315) of range effects of pollution, overfishing, and man- the Coastal Zone Management Act of 1972, and induced changes of ocean ecosystems. (Emphasis provisions for the establishment of marine added.) sanctuaries was included as Title III of the Marine Until more research is completed on this topic, it is Protection, Research, and Sanctuaries Act of 1972 not clear that portions of marine ecosystems can be (MPRSA). successfully protected or restored or that regulations for such purposes can withstand challenges of being B. Ocean Waters as Wilderness arbitrary or capricious. Title III of the Marine Protection, Research, and Another potential management difficulty of the Sanctuaries Act authorizes the Secretary of Com- marine sanctuary concept is that in many instances a merce with the approval of the President, to designate fixed zone will not provide a significant degree of areas of ocean waters as marine sanctuaries for the management control over ocean dynamics, natural purpose of: systems and human activities, each of which have Preserving or restoring such areas for their complex spatial and temporal dimensions. There conservation, recreational, ecological, or esthetic may be some clear value to protecting a special values. (Sec. 302(a)) breeding ground or gathering site for marine mam- mals. But habitat within the ocean tends to include Aside from this provision, there is no indication as large portions of ocean space. Thus to protect baleen to the purpose or objective of a national marine whales, there would be a need to protect not only sanctuaries program. As discussed previously, several specific breeding sites, but also a need to protect the reasons were given for creating such sanctuaries, but quality of water through which they pass, over thou- sands of miles each year. There would also be a need Our Nation and the Sea; National Estuarine Pollution Study; to insure the quality and amount of plankton National Estuary Study; Ocean Dumping - A National Policy. available as food. These requirements imply the need See Virginia Institute of Marine Sciences, Marine and Estaurine Sanctuaries, Report No. 70, 1973, for additional background in- formation. ' See Chapter 2 for additional discussion of this issue. 25 to control oil spills, land based discharge and surface C. Foreign Policy Considerations runoff, ocean dumping, atmospheric sources of water pollution, as well as other factors. The kind of protec- As discussed in the preceding section on deepwater tion implicit in the marine sanctuaries program may ports, any effort to establish national control over require major restrictions over most, if not all, ocean ocean space, resources, or activities beyond the three- activities over a fairly large portion of ocean waters. mile territorial sea raises a special series of issues or From this perspective, marine sanctuaries might be problems. Since 1945 the United States has attempted most effective as a tool to help implement objectives to persuade other coastal nations to refrain from established in some larger system-wide context. extending national jurisdiction beyond a narrow territorial sea. And, although the United States has Another problem not unique to marine sanctuaries not only established management actions but also is that in the absence of some type of specific national asserted full sovereign authority over the resources of ocean development plan, it is impossible to evaluate the outer continental shelf, it has not claimed a the long-range consequences of dedicating a par- similar degree of authority over ocean waters beyond ticular segment of ocean space to a single use. The the three-mile territorial sea. various objections raised by wilderness designations on public lands throughout the United States would Each time a national management program has certainly apply as well to ocean matters. Those been proposed which involves ocean waters beyond wishing to avoid marine sanctuary restrictions can be the territorial sea, a debate has ensued as to whether expected to argue that the nation cannot afford to such controls should be attempted, and if so, what preclude development and use of any portion of the kind or how. As discussed previously, the primary ocean, and/or that specific ocean uses will not impart concern has been that by establishing ocean water any significant damage and are compatible with the management programs, the United States might sensitivities of the ocean environment, thus not weaken its ability to prevent other nations from extending jurisdiction beyond a narrow territorial warranting a sanctuary program. sea. Perhaps to a greater degree than with most Federal The above OCS rights are balanced however by the ocean management efforts, the Marine Sanctuaries provision in Article 5(l) of the 1958 Convention on Program raises basic questions of what the national the Continental Shelf. This Article states that interest in the ocean is, and to what degree the exploration and exploitation activities on the shelf Federal Government can or should attempt to con- 'must not result in any unjustifiable interference with trol how the ocean is used. By the very act of setting navigation, fishing or the conservation of the living aside a portion of ocean space for protection, every resources of the sea, nor result in any interference other Federal ocean program and all ocean activities with fundamental oceanographic or other scientific are affected. In at least a limited sense, the Marine research carried out with intention of publication." Sanctuaries Program is perhaps a portent of the In turn, freedom of the sea activities must be conduc- future in ocean management. In this new program we ted with reasonable regard for other legitimate uses are trying to set aside a volume of ocean space and of the seas, i.e., resource exploration and exploita- manage it when we really don't have a management tion. process yet established that is able to transcend the various physical, political and economic factors that When a marine sanctuaries program was proposed strongly affect ocean management. in the U.S. Senate, this topic, as might have been predicted, was actively debated. The principal objec- The Marine Sanctuaries Program is also an exam- tion raised by Senator Hollings and the Commerce ple of'seeking a unified approach to ocean resource Committee was that such sanctuaries would con- management without obtaining absolute control over stitute the kind of "creeping jursdiction"' which the resource development and/or preservation decisions. State Department has resisted since Harold Ickes It is seeking to carry out a rather broad scale mandate proposed the establishment of a comprehensive in the absence of any unified policy on ocean ocean management regime in the 1930's and 1940's. management. In this sense, it may prove to be a As Hollings observed: microcosm example of how ocean space and resource The issue is not the usefulness or desirability of management approaches must be evolved in order to achieve a degree of comprehensiveness that, at least marine sanctuaries ... the issues are how to some groups feel, is needed in building an ocean establish them, to whom they will apply, and management process. How good an example it is re- with what ramifications on other interests of the mains to be seen. United States." Senator Hollings labeled as a "fatal flaw" the fact As shall be discussed further in considering the that these sanctuaries would be located in high seas specific provisions of the Marine Sanctuaries waters beyond the territorial limits of three miles. He Program, there is not yet a clear articulation of where marine sanctuaries fit within the broad range i of a See discussion in Chapter 6 on creeping jurisdiction. possible ocean activities, or among the growing num- ' Vol. No. 17 Part 33, Cong. Rec. 72 (November 24, 1971), p. ber of Federal ocean management programs. 43057. 26 suggested that, if the purpose of these sanctuaries was over all other programs and activities, once it is to protect certain areas from offshore oil and gas established. There is no provision for mitigating cir- drilling, that this objective could be accomplished cumstances, or for compliance "to the maximum ex- through the Outer Continental Shelf Lands Act, and tent practicable" as is the case in other legislation. that for other purposes international agreements should be sought, but that unilateral legislation E. Coordination would compromise our position at the UNCLOS Since all other Federal ocean programs are negotiations. Supporters of the marine sanctuaries required to be consistent with marine sanctuary program declared that the Outer Continental Shelf regulations, and since marine sanctuaries can be Lands Act could not be used to establish sanctuaries established within large portions of ocean space both and that the proposed legislation would apply only to within and beyond the territorial sea, the process by Americans and would not impair the freedom of which specific sanctuaries are established and regula- navigation of vessels of other nations. Eventually, the tions for them formulated becomes one of the most advocates of this program prevailed, and language important administrative mechanisms in the Federal was included in the legislation declaring that the ocean management effort. regulations for marine sanctuaries would apply primarily to United States citizens and that any Title III of the MPRSA requires that any sanctuary regulations affecting ocean waters beyond the must be approved by the President prior to designa- territorial sea would be negotiated with other nations tion. Furthermore, the Secretary of Commerce is as necessary or appropriate by the Secretary of State. required to: The final marine sanctuaries provisions of the Consult with the Secretaries of State, Defense, MPRSA are quite different from the Deepwater Port Interior and Transportation, the Ad- Act, with respect to the assertion of United States ministrator of the Environmental Protection control over vessels or citizens of other nations. As Agency, and the heads of "other interested discussed previously, in the Deepwater Port Act Con- agencies" on regulations for, as well as gress declared that the regulations established for the establishment of, sanctuaries. Section 302(a) Deepwater Port facility and for the safety zone indicates that "consultation" shall include an surrounding it would apply to any vessl wishing to opportunity to review and comment upon land at the Deepwater Port. If some vessels were specific proposed designations. subjected to strict regulations and others were not, 0 Work through the Secretary of State to obtain the potential for collision or other accident in the agreements with other nations as necessary or vicinity of a deepwater port would be immense, and it appropriate. is thus patently necessary to extend control over all 0 Consult with and give consideration to the vessels. Given the lack of specificity as to what views of any state whose waters are to be marine sanctuaries will be and what regulations will included in the sanctuary. The governor of any be applied, it is not clear as to whether marine such state has sixty days after notice of ecosystems can be protected or restored within in- designation to certify any or all of the ternational high seas if protective regulations apply proposed sanctuary within the territorial only to American citizens and vessels. It is a curious waters of his state as being unacceptable. situation which will undoubtedly require and receive Thus, coastal states have veto authority over additional attention by Congress. the establishment of that portion of a marine sanctuary within coastal waters under their D. Degree of Control authority. Unlike the Deepwater Port Act, Federal control of A public hearing is to be held in the coastal areas most likely to be directly affected by a marine sanctuaries is not limited to ocean waters sanctuary designation. beyond the territorial sea. The MPRSA authorizes the Secretary of Commerce, with the approval of the F. Utilization of the Act President, to designate marine sanctuaries as far seaward as the outer edge of the continental shelf, For reasons that are not fully clear, the Marine within the territorial sea, and in the Great Lakes and Sanctuaries Act has not really been used, although their connecting waters. subsequent to its passage two sanctuaries were established through Presidential Executive Orders. In Once a sanctuary has been approved, no permit, 1977, however, it was decided to take a new initiative license, or other authorization issued pursuant to any in establishing sanctuaries in association with ac- other authority shall be valid unless the Secretary of celerated OCS leasing. In his May 23, 1977, Environ@ Commerce certifies that the activity is consistent with mental Message to Congress, President Carter stated: the purposes of Title III of the MPRSA and the specific regulations for that sanctuary. I have . . . asked [the Secretary of Interior] to work closely with the Secretary of Commerce as This is an extraordinary provision, in that it she identifies potential marine sanctuaries in declares that a marine sanctuary shall have priority areas where leasing appears imminent. 27 ... existing legislation allows the Secretary of programs and activities within a specified geographic Commerce to protect certain estuarine and ocean portion of ocean space. Subsequent testimony by resources from the ill effects of development by representatives of NOAA before Congress confirmed designating marine sanctuaries. Yet only two that there was some tendency on the part of NOAA sanctuaries have been established since 1972, to see the Title III provisions of the MPRSA as a when the program began. mandate to establish comprehensive ocean manage- I am, therefore, instructing the Secretary of ment programs over selected portions of the oceans, Commerce to identify possible sanctuaries in through the process of sanctuary designation. areas where development appears imminent, and By the fall of 1978, two marine sanctuaries were in to begin collecting the data necessary to existence and a third was officially proposed. It is designate them as such under the law.10 reported by NOAA officials that none of the three Since that time more than 160 nominations have marine sanctuary efforts constitute a comprehensive been submitted to the Secretary of Commerce for ocean management scheme. Further, it was indicated that the activities regulated within the sanctuaries are consideration as possible marine sanctuaries. Certain limited to those necessary to protect resources and issues have emerged subsequently as the Department the process of designation and development of of Commerce began to implement some of these regulations has involved extensive consultation with suggestions. affected Federal and state agencies, public interest A proposal was made to declare all of Georges groups and industry. Bank as a marine sanctuary. This proposal was not well received, and in part stimulated Congressional G. Modifications of the Marine Sanctuaries Program efforts to amend the basic legislation. The issues which emerged from the Georges Bank proposal In May of 1978 the Senate Committee on Com- emphasize some of the difficulties of establishing merce, Science and Transportation submitted com- marine sanctuaries that have been discussed mittee report S. 95-886 to accompany S. 2767, a bill previously in this section. to extend authorization of the Marine Sanctuaries First, Georges Bank is already being administered Program and other portions of the Marine Protec- as a special management area under the Fishery Con- tion, Research and Sanctuaries Act. In this commit- servation and Management Act of 1976, through the tee report several important changes to the Marine New England Regional Fishery Management Coun- Sanctuaries Program are suggested. Although the law cil and the National Marine Fisheries Service. has not been amended, as of this writing, many of the Georges Bank is also a "frontier" area of new oil and suggested changes have, in effect, been accepted by gas leasing under the Outer Continental Shelf Lands incorporating them into regulations or agency prac- Act, and it is an area of heavy merchant vessel traffic. tice and policy. Because of the heavy use of this area, there is an 1. Purpose. The Committee emphasized that the inherent difficulty in attempting to establish a intention of the Marine Sanctuaries Program is not to preserve or sanctuary for the purposes of conserva- establish comprehensive ocean management tion, recreation, esthetic values or ecological protec- programs, but rather to preserve, protect, and restore tion. There is a very real danger that such efforts specific ecologically important ocean areas. One might disrupt intensive fishing efforts and complex recommended amendment was to delete "esthetic fisheries management programs, commercial naviga- values" as a reason for sanctuaries designation and tion, or OCS minerals leasing. It would also be ad- the Committee emphasized that, while recreation is ministratively difficult to structure a marine important, it is a secondary concern and should not sanctuaries program that would satisfactorily link all be construed as a primary purpose of sanctuary of the existing private and public activities and designation. management efforts for the Georges Bank area. 2. Coordination. The Committee suggested that, Second, this proposed marine sanctuary seemed to for marine sanctuaries of more than 1,000 square reveal a certain interpretation of the Marine Protec- miles, both the House and Senate must give their ap- tion Research and Sanctuaries Act which caused con- proval, along with that of the President. Congress cern both within Congress and in various Federal would, under these amendments, also be informed of agencies with ocean programs. There is a suggestion any proposed sanctuary designation, no matter what through the Georges Bank proposal that the "con- its size. Furthermore, the, Secretary of Commerce sistency" authority provided in Section 302(f) might would be directed to consult with the chairman and be used by the government to attempt to establish a members of any regional fishery management council comprehensive ocean management regime within the having jurisdiction over livirg resources in the waters boundaries of a marine sanctuary, using Title III included in a proposed sanctuary. The se propos ed authority to assert control over all Federal ocean amendments appear to indicate a growing apprecia- tion of the potentially widespread impacts of a Office of the White House Press Secretary, Presidential Message marine sanctuary designation, and the need for to the Congress of the United States, May 23, 1977, pp. 9 and 14. special consideration of its administrative design if 28 such designations are not going to disrupt a number Outer Continental Shelf Lands Act. However, if the of national interests and programs. features or conditions to be preserved or protected 3. Degree of control. Ever since the Georges require control over additional activities, as seems to Bank marine sanctuary proposal, there has been con- be the case, then the marine sanctuary becomes, in ef- cern that the original language of Title III of the fect, a national designation of key values within some MPRSA might require modification. In the original portion of ocean space and a national dedication of legislation the Secretary of Commerce was given, an area to that key value." what appeared to be, total authority over all activities If the area to be protected is of little value for other and programs within the sanctuary, once it had been purposes such as mineral production, commercial approved by the President. Although the Senate fishing, vessel transit, offshore facilities siting, ocean Committee report may actually say that "all other energy production, or national security purposes, statutes may be superceded," marine sanctuary then preservation should be relatively simple. But as regulations cannot legally supercede a Federal law or pressures for access to ocean space and ocean statute; they may only supercede the "permits, resources build, the administrative difficulties of licenses, or other authorizations" issued under con- monitoring and regulating a preservation or flicting regulations. As the Senate Committee report sanctuary area of any size may become serious, and further observes: the basic concept of setting aside a portion of ocean One problem with the original Title III is that space as a preserve may come under serious in designating a sanctuary the Secretary of Com- challenge. merce automatically and perhaps inadvertently There is one other major ocean management may assume authority to regulate all activities program of the United States which involves a con- within a sanctuary; all other statutes may be cept of ocean control even greater in type and degree superceded within the designated site .... than that of the Marine Sanctuaries Program. In con- All permits, licenses, and other authorizations trast to the Marine Sanctuaries Program, in which issued pursuant to any other law or other there was some initial confusion as to Congressional authority shall remain valid unless these intent, the Coastal Zone Management Act explicitly sanctuary regulations provide otherwise .... If calls for the comprehensive coordination of all the terms of the designation and the regulations Federal, state and local activities and programs implementing them do not provide for the within the territorial sea. regulation of a given activity, that activity within IV. Coastal Zone Management the sanctuary continues to be regulated under other applicable law." A. Introduction An additional modification proposed by the Senate Committee would be that, at the time of proposing a The three-mile territorial sea, as part of the marine sanctuary, the Secretary of Commerce would sovereign territory of the United States, is not encum- be required to list the proposed regulations, so that bered with the degree of foreign policy constraints en- the implications of designation would be clear to all countered in ocean space beyond the three-mile interested parties. The Secretary would be required to limit."' For this reason, the United States could com- list bine water, submerged lands, and resources into a single management unit without extensive concerns ... not only the geographic area to be included over subsequent international consequences which and the characteristics of the site which give it have so strongly influenced the structure of U.S. conservation, ecological or recreational value, ocean programs beyond three miles. Nevertheless, but also those specific activities which the the territorial sea has been divided into two parts for Secretary proposes to regulate in order to protect purposes of management, reminiscent of ocean space those characteristics." beyond the territorial sea, but for quite different The Marine Sanctuaries Program is particularly reasons. important because of the degree of control over In 1937, Secretary of the Interior Ickes attempted ocean activities implicit in the concept of a sanctuary. to remove traditional state control of the submerged If the primary objective of a particular sanctuary is to lands of the territorial sea and to replace their preserve a specific submerged lands formation from authority with a Federal ocean management regime the possible disruption of offshore oil and gas drilling that would include not only the waters and sub- activities, the necessary type and degree of control merged lands of the territorial sea, but also a signifi- may not be major, and the Marine Sanctuaries cant portion of ocean space beyond. As recounted in Program could be viewed as a supplement to the Chapter 11, it was not until 1953 that this domestic Senate Committee on Commerce, Science and Transportation, debate was at least temporarily resolved, through the Marine Protection, Research and Sanctuaries Act Amendments of 1978. May 15, 1978, 95th Cong. 2nd sess., S. Report No. 95-886, '3 SeeChapter 5 for additional discussion of key value concept. p. 5. 14 It is assumed, however, that no portion of ocean space is totally 12 Ibid. devoid of foreign policy ramifications. 29 ;age of the Submerged Lands Act of 1953. Figure A Territorial Sea Management Program r1hapter 2, displays the mangement r i @lished in 1953. egimes Even though the Submerged Lands Act of 1953 had attempted to establish a legislative mechanism B. Waters versus Submerged Lands and Resources that would allow the "use and control" of the territorial sea, few states had est#ished many con- Coastal states were recognized as having ow- trols. The Coastal Zone Management Act is based on nership of and authority over the submerged lands the conclusion of Congress that "present state and and the living and non-living resources of the local institutional arrangements for planning and territorial sea. However, the Submerged Lands Act regulating land and water uses [in the territorial sea] (SLA) is not as specific regarding the waters of the are inadequate." 16 territorial sea. The purpose of the SLA was in part to "provide for the use and control of said lands and Because the Submerged Lands Act recognizes that resources." States were not recognized as having coastal states own the submerged lands and resources either ownership or management authority over the of the territorial sea, it would be both politically and waters of the territorial sea, and most, if not all, of legally difficult to force states to establish some new the then-conceivable governmental management in- type of territorial sea management. Congress chose terests in territorial waters were explicitly reserved for instead to attempt to encourage states to undertake a the Federal Government. Table 1, page 16, indicates new level of management and planning, by providing the division of authority between Federal and state legislative authorization, through offtfs- of financial governments over the waters, resources and sub- assistance, and with promises of some new degree of merged lands of the territorial sea which resulted influence or control over Federal activities within the from the Submerged Lands Act. territorial sea. Thus the Submerged Lands Act did two things: (1) 1. Objective: The concept of coastal zone manage- it split authority, or sustained an existing division of, ment. In Section 302(c), the Coastal Zone Manage- authority, over the territorial sea between Federal; ment Act (CZMA) identifies the major issues of con- and state governments, and (2) it recognized: cern: resources and submerged lands as a management The increasing and competing demands upon unit, without explicitly assigning authority over the lands and waters of our coastal zone oc- territorial waters. It focussed instead upon water- casioned by population growth and economic related activities such as commerce, water power, development, including requirements of industry, navigation, and national defense. It is significant that commerce, residential development, recreation, this distribution of authority and lack of specificity extraction of mineral resources and fossil fuels, over waters of the territorial sea were, for the most transportation and navigation, waste disposal, part, left unchanged by the Congress when it passed and harvesting of fish, shellfish and other living the Coastal Zone Management Act in 1972, marine resources, have resulted in the loss of establishing a new Federal - state territorial sea living marine resources, wildlife, nutrient-rich management effort. - areas, permanent and adverse changes to C. The Coastal Zone Management Act of 1972 ecological systems, decreasing open space for public use, and shoreline erosion. During the late 1960's, there emerged growing con- The objective of the CZMA is to encourage coastal cern over the loss of wetlands and estuaries, over- states in cooperation with Federal and local govern- fishing, oil spills, erosion, major new proposals for ments and private interest groups to develop land and large facilities located in coastal areas, water quality water use programs for the territorial sea and adja- problems, crowded navigational fairways, and other cent shoreland, which would include issues described in studies and reports of that period such as Our Nation and the Sea." unified policies, criteria, standards, methods, In 1967, Vice President Humphrey advanced the and processes for dealing with land and water use concept of "coastal zone management," and in 1969 decisions of more than local significance. (Sec. the Stratton Commission suggested the formation of 302(h)) a comprehensive management regime for the The CZMA could be viewed as an evolutionary territorial sea and adjacent coastline under state step in the formation of American ocean programs leadership, with an associated Federal coordinate 'd and policies, and it represents the most ambitious and effort directed by a single national ocean agency comprehensive effort to exert public control over (NOAA). In 1972 Congress enacted several important some portion of the ocean. However, it is essential to environmental protection and resource management remember that while the concept is ambitious, it is programs, including the Coastal Zone Management Act of 1972 (P.L. 92-583). Sec. N2(g). "In light of competing demands and the urgent need to protect and give high priority to natural systems in. the coastal Commission on Marine Science, Engineering and Resources zone, present state and local institutional arrangements for plan- (Stratton Commission), Our Nation and the Sea: A Plan for ning and regulating land and water uses in such,lareas are National Action (Washington, D.C., January 1969). inadequate . . . 30 also based upon voluntary participation by coastal process by (the Office of Coastal Zone Manage- states, and in terms of Federal authority, the Act ment, NOAA), mostly silent on its criteria for must be placed at the low end of the management deciding the merits of the claims." spectrum discussed in Chapter One; it is a program of 2. Authority to manage the coastal zone. The basic encouragement rather than full control. premise of the CZMA is that: The Act calls for the formulation of management The key to more effective protection and use of programs for the territorial sea and adjacent shore the land and water resources of the coastal zone that include: .is to encourage the states to exercise their full 0 A determination of which land and water uses authority over the lands and waters in the coastal will be permissible within this management zone .... (Sec. 302(h)) zone; This raises the question of what the "full � An identification of areas of particular authority" of the states over the waters and lands of national concern: the territorial sea is. It should be remembered that in � Broad guidelines on priority of uses in par- the late 1940's the U.S. Supreme Court ruled that on ticular areas, including uses of lower priority; Constitutional grounds the states do not have management authority over the territorial sea and � Plans and policies to protect and provide that Federal interests should have paramount access to public beaches and other coastal authority: areas of environmental, historical, esthetic, ... protection and control of the [territorial ecological or cultural value; sea) are indeed functions of national external � Programs for the anticipation and manage- sovereignty ... the marginal sea is a national, ment of impacts created by energy facilities not a state concern. National interests, national located in or which may significantly affect the responsibilities, national concerns are involved. coastal zone; The problems of commerce, national defense@ � Programs for the assessment of shoreline ero- relations with other powers, war and peace focus sion and development control strategies to here. National rights must therefore be lessen the impact of erosion and restore areas paramount in that area." adversely affected by this process; and Bartley and others have argued that such decisions � Plans and policies for the siting of major run counter to 150 years of previous legal history and facilities within this management zone. may not constitute good law," but as a result of those findings, the only clear expression of state authority In broader terms, coastal states are charged with over the territorial sea is the Submerged Lands Act. determining and achieving "wise use" of the This Act is not clear as to who might have authority territorial sea and assuring that, in both the territorial over the water itself as contrasted to activities or sea and adjacent coastal lands, the broad web of national resources contained within it. national interests is accommodated and/or recon- When the Submerged Lands Act was enacted, ciled with local and state interests, as well as with the multi-purpose, comprehensive resource management sensitivities and basic capacities of the natural ocean such as envisioned in the Coastal Zone Management environment. Act was obviously not a totally alien thought, but it Considering the scope of this mandate and the did not seem to be the primary objective of the emphasis it places upon national interests which need legislation. To the degree that Congress did address to be protected and reconciled, it is surprising to note broad planning and management authorities over how little substantive guidance the states have been territorial waters, it tended to favor Federal rather provided, either by the Executive Branch of the than state authority, specifically in the areas of- Federal Government, the Office of Coastal Zone * navigation, Management within NOAA, or by Congress through a flood control, the provisions of the Act. States are asked to balance human needs and interests against natural system 0 power production, capacities and to accommodate those needs and in- 0 national defense, terests which are diverse and sometimes conflicting, 0 commerce, and in a number of ways. Not only is minimal guidance 0 international affairs. given, as shall be discussed further, but very little explicit authority is provided to achieve such balan- Considering the encompassing and expanding nature 91 64 cing. As one observer noted: of "commerce," "navigation, national defense," What makes this essential problem of 'balan- and "foreign affairs ... .. power", and the unclear but cing' even more important is the almost total " Timothy Alexander, The Intergovernmental Balancing Act: silence of the Act as to how the substantive State-Federal Interests in Coastal Zone Management. Internal Document (1977), (available from author), p. 51. balance is to be struck. On its face, the Act places " U.S. v. Louisiana, 339 U.S. 699, 704, (1950). states in this position, with the assessment " Bartley, op. cit. 31 potentially pervasive authority over the use of ocean A fter a marine sanctuary has been designated waters "for the production of power," an argument under this section ... no permit, license, or other can be made that states have very little authority over authorization pursuant to any other authority the waters of the territorial sea. As an example, con- shall be valid unless the Secretary shall certify sider the finding in U.S. v. Wrightwood Dairy Com- that the permitted activity is consistent with the pany which concluded that purposes of this title and can be carried out within the regulations promulgated under this no form of state activity can constitutionally section. (Sec. 102(f)) thwart the power granted by the commerce clause to Congress." 3. Coastal zone consistency. Regardless of certain In those instances where states have initiated confusions or conflicts contained within the Act as to regulatory or management efforts over ocean waters, the authority of the states over the coastal zone, the they have experienced mixed receptions in the courts CZMA at first reading appears to provide the same type of control to the states as has just been cited with with Federal paramount or preemptive interests or reference to sanctuaries: authorities often cited as constraints upon state ac- tion." Each federal agency conducting or supporting Rather than resolving these areas of ambiguity or activities, directly affecting the coastal zone shall conflict, the Coastal Zone Management Act incor- conduct or support those activities in a manner porates them whole: the states are to achieve com- which is, to the maximum extent practicable, prehensive coastal management through the exercise consistent with approved state management of their full authority, whatever that may or may not programs. (Sec. 307(c)(1)) be, and in concert with an unclear degree of Federal Any federal agency which shall undertake any consistency or in compliance with other state efforts. development project in the coastal zone of a state In fact, the CZMA seems to obscure further just what shall insure that the project is, to the maximum authority coastal states can use to achieve the pur- extent practicable, consistent with approved state poses of the Act. Section 307(e) declares that no management programs. (Sec. 307(c)(2)) Federal or state rights or laws are to be diminished, superceded, modified or repealed by the Act or by These and additional provisions of the CZMA state coastal management programs. provide a rather strong and detailed directive to Nothing in this title shall be construed - (1) to Federal agencies to comply with the contents of ap- diminish either Federal or state jurisdiction proved state coastal management programs. responsibility, or rights in the field of planning However, there is a very real and significant limita- development, or control of water resources,sub- tion upon the effectiveness of these provisions in the merged lands, or navigable waters; nor to dis- phrase "to the maximum extent practicable." For- place, supercede, limit, or modify any interstate mulation of regulations to implement this section of compact or the jurisdiction or responsibility of the CZMA required approximately 18 months and any legally established joint or common agency was surrounded with controversy. Basic disputes as of two or more states . . . nor to limit the to the degree to which Federal agencies should have authority of Congress to authorize and fund to comply with state management efforts could not projects. (Sec. 307(e)) be resolved even at the Cabinet level among depart- ment heads, and intervention by the Executive Office At first glance, this rather extraordinary provision of the President was necessary to achieve some degree would seem to exempt virtually every governmental of consensus. authority, including Congress itself, from any coastal management programs which might actually attempt to exert some degree of control or management. Stratton Commission This paradox is almost the antithesis of the Marine Many of the provisions of the Coastal Zone Sanctuaries Act, which provides, as discussed Management Act follow recommendations contained previously, that once a sanctuary has been properly in the Stratton Commission's report on national designated, as prescribed in the Act, that the ocean programs, Our Nation and the Sea. One point Secretary of Commerce will have full and direct con- at which there is wide divergence between the Com- trol over all other Federal programs affecting that mission's concept of territorial sea management and area: the final CZMA is in this. specific area of degree of state control over Federal activities. n U.S. V. Wrightwood Dairy Company, 319 U.S. 110 (1941). The Commission foresaw that without some actual See for example Kossick v. United Fruit Company, 365 U.S. 731 redistribution of authority among states and the (1961); American Waterways Operators, 411 U.S. 325 (1973); and Ray v. Atlantic Richfield Company, 435 U.S. 151 (1978). Federal Government, above and beyond that For additional citations and discussion of this point, see specified in the Submerged Lands Act, the coastal Armstrong and Ryner, Coastal Waters: A Management Analysis states might not be able to function as a coordinating (Ann Arbor: Ann Arbor Science, 1978), Part 11. agent for the territorial sea. 32 ... it may be desirable to delegate to the state It is interesting that while states are urged to coor- coastal zone authorities certain regulatory func- dinate all of their state programs as well as local ones tions of Federal agencies, such as reviewing into a focussed, comprehensive state management ef- proposals for construction in navigable fort, there is no equivalent Federal effort to coor- waterways and advising Federal construction dinate Federal programs in fisheries management, agencies." navigation, national defense, water pollution, The Commission furthermore suggested that this offshore mineral leasing, and other ocean-related ac- delegation of Federal authority could be used to in- tivities. sure proper performance of state coastal programs, The Stratton Commission had envisioned a strong by withdrawing that authority if necessary. Federal management effort, complementing state The federal government should not make deci- programs in areas beyond state jurisdiction, both sions for the state authority, but it should.oversee physically and in terms of policy." The Commission the authority and withdraw funding support and wanted coordination among Federal agencies in this delegation of specific federal functions if the planning and management effort to be achieved authority performs inadequately." through the establishment of a Federal ocean agency. A partial explanation for the lack of any unified Congress chose not to delegate Federal authorities. Federal coastal water management effort may be that It relied instead upon the utilization of existing Congress thought it appropriate to avoid the many authorities and the sharing of responsibilities in a issues associated with the creation of a Federal ocean spirit of cooperation. It is too early to tell if the agency. However, through its decision to structure territorial sea can be managed under state direction the Coastal Zone Management Act to avoid any without some additional explicit authority. However, national coordination of Federal coastal programs it is also not clear that actual delegation of authority and policies, Congress has created an inherent would be constitutional, and it is certain that Federal fragmentation into 30 parts of the national territorial agencies and their constituents would in most sea management effort, instances vigorously oppose any transfer of authority. The issue of state authorities and interests D. Fragmentation of Territorial Sea Management in ocean management is considered further in Chap- ter Four. As the coastal zone management program is currently structured, each coastal state is encouraged 4. Federal role. As envisioned in the Coastal Zone to establish a coastal management program. The Management Act, states are to have the lead in for- inland boundary of each state's coastal management mulating "wise use" plans for the coastal zone, and "zone," as well as the structure for administering that Federal agencies are supposed to be supportive par- zone and the priorities of use within it, is left up to the ticipants. The relationship might be described as a discretion of each state. To gain coordination bet- ween these state management programs and Federal partnership. In terms of formulating rules, objectives, ocean programs, each state is left to negotiate with or policies for the management programs, Federal each Federal agency as to the relationships that will agencies are supposed to work with states during the or should exist. Each state establishes its own program development process and to react to and policies, and the degree of consistency between state comment upon those programs prior to final ap- and Federal interests and programs varies from seg- proval. The importance of such participation and ment to segment of the territorial sea. Because the comment follows from the facts that: Act relies upon voluntary participation by the states, there may be some segments of the territorial sea for a. Since states are not given full authority over which there are not comprehensive coordinated plan- the territorial sea, they must devise programs ning and management efforts, which are directly which rely to some extent upon Federal adjacent to segments with an approved program in authorities and which are acceptable to place, Federal agencies so that they will comply; and Obviously, fragmentation is inherent in state rather b. Once coastal management programs are ap- than Federal control, and that does not necessarily proved, Federal agencies are under a strong imply a problem. There are regional variations in directive to comply with their provisions, and current, temperature, bottom topography, historical thus each agency does well to make sure that patterns of use, political structure, and legal systems, such programs are workable and acceptable and it may be essential to allow for a wide degree of prior to approval. variation in coastal management programs if they are This idea of a joint Federal-state management effort "The Commission believes it important that the Congress assign is reflected in other management programs such as planning, coordination, and management for coastal zone (sic) clean air management and clean water management. beyond state jurisdiction to a single federal agency. The federal planning and management role would be analogous to that exer- Our Nation and the Sea, p. 59. cised within the limits of state jurisdiction by the coastal zone 23 Ibid. authorities." Our Nation and the Sea, p. 62. 33 to meet successfully the diversity of state interests and needs. STATE A The point to be made is that there is no mechanism within the Coastal Zone Management Act to achieve any greater degree of coordination within the territorial sea. While there is encouragement, there is - - - - - - - no requirement for internal consistency between state STATE B programs. Users of ocean space and ocean resources already face a variety of changing laws as they pass from the jurisdiction of one state to the next. The - - - - - - - - - Coastal Zone Management Act represents a whole new level of controls, regulations and policies, including public determinations of which activities STATE C should have priorities of access to the various seg- ments of the territorial sea and adjacent shore. In its decision to allow individual state programs in contrast to a uniform national territorial sea manage- STATE D ment system, Congress has supported a program which may possibly increase the time, cost, and con- fusion of attempting to use the territorial sea. Figure 6 portrays this situation. STATE E E. Management of Coastal Waters 'Coastal zone' means the coastal waters (including the lands therein and thereunder) .... Figure 6: The zone... extends seaward to the outer limit of the United States territorial sea. The zone ex-_ The Coastal Zone Management Act of 1972 gives each tends inland from the shorelines only to the ex- state the authority and responsibility for determing the tent necessary to control shorelands, the uses of landward boundary of its coastal management 11 zone". which have a direct and significant impact on the Permissable uses, priorities of use, areasof special con- coastal waters. (CZMA, Sec. 304(a)) cern, provisions for energy facilities, and programs for Examination of this definition of coastal zone con- coastal access as well as other management components tained in the CZMA seems to indicate that the Act for the waters, submerged lands, and shorelands of the focusses heavily upon the water and submerged lands coastal zone may differ radically from state to state. of the territorial sea. The Coastal Zone Management There is a probability that Federal ocean programs will be Act in a sense could be viewed as a territorial sea administered in a less uniform fashion than before, as a management program. Yet while a few states have done some interesting water-related planning, no result of the requirement of the CZMA that Federal ocean coastal state has achieved or even attempted the programs be administered in a fashion that is consistent degree of comprehensive planning and management with state coastal management programs as much as for coastal waters suggested by the CZMA." possible. Oregon has developed a general management goal An additional interesting feature of the CZMA is that for the ocean waters of its coastal management zone, there may be some segments of the territorial sea for which while general, provides a fairly clear statement which there is no management program, if one or more of what the priorities of ocean management use will coastal states are unwilling or unable to participate. be: Since renewable ocean resources and uses, such as food production, water quality, naviga- procedures by which territorial sea decisions will be tion, recreation, and esthetic enjoyment, will made and conflicts resolved. Most states have ap- provide greater long-term benefits than will non- proached coastal management as shorelands manage- renewable resources, such plans and activities ment and have not given detailed consideration to the shall give clear priority to the proper manage- adjacent territorial sea. ment and protection of renewable resources." There are several Federal programs, left intact by Few states have achieved conparable clarity in policy the Coastal Zone Management Act, which will have for coastal water use, nor have they established clear major impacts upon state coastal waters as well as Supra, 16. shorelands. The Ports and Waterways Safety Act, the Oregon Land Conservation and Development Commission, Fisheries Conservation and Management Act, the Statewide Planning Goals and Guidelines (Portland, 1976). Deepwater Port Act, the Outer Continental Shelf 34 Lands Act and the Marine Protection, Research and not all, governmental regulation or control was at the Sanctuaries Act represent a series of public manage- state level within the territorial sea and the United ment decisions over which coastal states could have a States claimed no authority to regulate fisheries or significant degree of influence, if not control, through other resources beyond the three-mile limit. the provisions of the Coastal Zone Management Act. President Roosevelt's idea of establishing a Without their own coastal waters management fisheries game preserve in the northern Pacific Ocean programs, states may not be able to interact effec- waters and extending U.S. jurisdiction over ocean tively with these and future Federal ocean programs. space and resources far beyond the three mile limit There are many explanations for the limited was not implemented. However, because of con- coastal water management efforts at the state level, tinued concern over foreign fishing pressures within not the least of these states are insufficient time, traditional American fishing grounds, President money, and personnel, and pressing shoreland issues Truman established by proclamation in 1945 what requiring immediate attention. Also, several states might be interpreted as a Federal ocean fisheries have become increasingly involved in offshore oil and management "regime," at the same time that an gas leasing, and the associated shore impacts within outer continental shelf lands management regime was the territorial jurisdiction of the U.S. These states formed. But as with Roosevelt's earlier idea, this have their own concepts of how the territorial sea proclamation was not translated into actual controls, should be used, at least in terms of energy transporta- and the 200-mile fisheries management idea remained tion and production. But the limited number of state no more than an assertion of Federal ability to con- coastal water management efforts, combined with an trol. ambiguous or conflicting distribution of respon- By the mid-1960's the amount of fishing being sibility and authority, leaves unsettled the issue of done by sophisticated foreign fleets near U.S. shores whether or not national management of the was so extensive as to spur Congress to enact P.L. 89- territorial sea can or will be achieved through the ap- 658, which established a 12-mile wide contiguous proach contained in the existing Coastal Zone fishing zone in which the United States declared the Management Act. right to exclude fishing activities of other nations. F. Conclusion However, this action proved insufficient to deal From the 1930's through the 1950's, much of with the issue. Foreign fishing pressure continued, Federal ocean management entailed the establish- and even expanded, beyond the new 12-mile ment of authority to manage. In the 1970's the regulatory area. U.S. fishing activities, both commer- Federal Government exercised its recently-asserted cial and recreational, were also extensive. These jurisdiction over ocean resources and activities fishing activities, as well as increased pollution and some habitat destruction, contributed to a noticeable through the enactment of a variety of separate ocean and, in some instances, sharp decline in various fish management programs. stocks. In waters beyond the territorial sea, the United Finally, in 1976, Congress enacted legislation States has continued to use caution in imposing con- which imposes Federal control over all ocean fishing trols, primarily in an effort to instill a similar degree within 200 miles of shore and beyond the territorial of caution in other coastal nations. sea. This system echoes to a considerable extent the Within the territorial sea, states continue to hold earlier concepts of Roosevelt and Truman, but marks authority over submerged lands and resources, and the first time for the U.S. that actual Federal regula- the Federal Government retains most authorities tions and controls over ocean fishing have been over the waters. In 1972 Congress began an effort to established beyond 12 miles and the first time that a establish a comprehensive management program Federal legislative basis for such control has existed. linking these two separate authorities through the enactment of the Coastal Zone Management Act. B. The Fishery Conservation and Management Act of For both the territorial sea and the ocean beyond, the 1976 (P.L. 94-265) United States has, since 1972, attempted to impart a new level of control over the ocean and activities Purpose taking place within it, which begins to approach the There are several declared purposes included in the control now commonly asserted on land. Act (Sec. 2(b)), but the two major objectives are to prevent foreign fishing within 200 miles of shore V. Fisheries Management except when there is an "excess" amount of fish that cannot be utilized by American fishermen and to A. Introduction establish a comprehensive fisheries management program that will or may regulate all recreational and Federal regulation of ocean fishing is a relatively commercial fishing within this 200-mile management new concept, which appears to have been first stated zone. It is noteworthy that the Fishery Conservation nationally in the late 1930's. Before that time most, if and Management Act (FCMA) is concerned not only 35 with the protection and conservation of fish stocks, (Sec. 302(b)). The actual degree of control over this but also, to some degree, with the protection and con- program by the Regional Councils is not clear from servation of commercial and recreational fishing as the language of the Act, because final regulations are major ocean activities. pending approval by the Secretary of Commerce. 1. Type of control. However, the Councils do have clear responsibility for preparing and updating comprehensive fishery Access by nationality. The Act declares that management plans for their regions, subject to American fishermen will be given preferential access departmental approval. to all fish stocks within 200 miles of American shores and that fishing by other nations will be allowed only 3. Federal/State linkages. The FCMA contains if there is a surplus. several provisions to insure that state interests are considered, including the requirement that state The total allowable level of foreign fishing, if governors determine or recommend most of the any, with respect to any fishery subject to the members of the Councils. Also, Section 306 of the exclusive fishery management authority of the Act declares that state jurisdiction over fisheries in United States, shall be that portion of the op- coastal or territorial waters is not to be diminished by timum yield of such fishery which will not be har- the Act. vested by vessels of the United States, as deter- mined in accordance with the provisions of this Section 306(b) stipulates, however, that the Act. (Sec. 201(d)) Secretary of Commerce can, under certain condi- tions, assume management responsibilities of a Securing preferential access to American fishermen specific fishery within the boundaries of a state if and and extending controls over foreign vessels were as long as that state's management program fails to perhaps the principal reasons why United States meet with Department of Commerce approval. commercial fishing interests supported the enactment 4. Coastal zone management. While the Act assures of this legislation, but as shall be discussed below, at- state par tempting to do so raises certain basic issues and ticipation in the Federal fishery management various administrative problems. program, it does not discuss or require linkages bet- ween regional Federal fishery management plans and Amount of catch. Management plans are to be state coastal fishery management plans. While state established for each fishery existing within the 200- fishery personnel are to be included on the Regional mile management zone. These plans may include: Councils, state coastal zone management personnel � Designation of zones and time periods when are not required to be included; and while there are fishing shall be limited or shall not be permit- opportunities for coordination and cooperative ted or shall be permitted only by specified management, there is no requirement or assurance of types of fishing vessels or with specified types it. As a result, there are two separate national fishery and quantities of fishing gear; management systems: one for a 200-mile zone, ad- � Limitations on the catch of fish (based upon ministered by the eight Regional Councils and the area, species, size, number, weight, sex, in- other within the territorial sea, administered by each cidental catch, total biomass, or other factors). coastal state. As a result of this program, individual commercial Coastal states and local communities could be af- fishermen are or may be told how many fish, of what fected by Regional Councils' plans if they induce in- size, and what type they can catch during a given creased fishery pressure or supress a local fishing in- year; in effect each species of fish now may be dustry; and state or local actions could destroy im- allocated, with the Federal Government determining, portant fish habitats, hamper the construction of for example, how many yellowtail flounder will be necessary fish processing facilities, or fail to provide caught, and to some degree, by whom. While this necessary commercial fishing vessel access. type of allocation, as well as restrictions upon num- On the other hand, there is a considerable oppor- ber of vessels or type of equipment used, has in the tunity for mutual support, if the plans of the past been used at the state level, this approach con- Regional Councils were coordinated in a positive stitutes significant extention in the exercise of Federal fashion with the coastal management efforts of the power. states. The Office of Coastal Zone Management has 2. Regional Fishery Management Councils. The established a Fisheries Assistance Program to address FCMA calls for the establishment of eight Regional these opportunities. Fishery Management Councils (Regional Councils) which comprise a unique institutional arrangement C. Foreign Fishing within the Management Zone for a Federal ocean management effort. The Councils represent a partnership of Federal, state and private As described in Chapter Two, the main reason this interests, requiring membership by the principal state kind of national control over ocean fishing had not official with marine fishery management respon- been established until 1976 was the concern that such sibility and expertise in each member state, as well as action on the part of the United States would lead to the Regional Director of the National Fishery Service an exclusion of American fishermen from foreign 36 waters or result in other limitations upon public and several ways other than excluding or restricting private American interests in foreign ocean space and American fishermen from their coastal waters. For ocean resources. In fact, some commercial fishermen this reason, this aspect of fisheries management, the within the United States had resisted Federal fishery control of foreign fishing, cannot be treated as an management programs until the 1970's, because of isolated resource management issue and may involve commercial interest in foreign water fisheries and major national strategic and economic considera- because of a widespread dislike among commercial tions. fishermen of governmental control in general ' Co-Ventures However, the opposition to Federal control by distant-water fishermen was increasingly matched by An additional complication in attempting to deal demands for protection from foreign fishing activities with the foreign policy aspects of fisheries manage- by coastal fishermen. ment is a growing practice of many nations, including The FCMA contains an elaborate mechanism for Japan, of gaining access to United States fish stocks the regulation of foreign fishing within the new Un- through partnership with American commercial ited States ocean fisheries management zone. Title 11, fishermen, either by contracting for their catches, or Foreign Fishing and International Fishery Agree- through co-ownership of vessels and/or processing facilities. Basic questions arise about the long-range ments, begins with a declaration that after February implications of foreign ownership of U.S. vessels or 28, 1977, no foreign fishing will be allowed within the 200-mile fishery conservation zone without a permit facilities, and these issues are only now being con- from the United States. sidered. Foreign Registration Problems with Foreign Exclusion When U.S. fishermen find themselves restricted Mexico and other nations have in recent years in- either under the provisions of the FCMA or other ish creasingly restricted United States access to f Federal ocean programs such as the Marine Mam- resources adjacent to their coasts, just as the United mals Protection Act, they have in some instances States has done in this Act. In some instances the shown an inclination to avoid those restrictions by restrictions may have been an effort to increase removing themselves from U.S. jurisdiction or chang- revenue collections from use of their ocean resources ing their regulatory status by registering their vessels by foreign nations, and in others they represent an ef- under the flags of other nations. This is of particular fort to protect and develop a strong domestic com- importance with the American deepwater tuna fleet mercial fishery. One of the problems that has resulted subjected to increasing restrictions upon incidental from United States restrictions upon foreign fishing catches of porpoise. Under present U.S. law, they can is that foreign nations have also restricted Am i avoid those restrictions by registering their vessels erican fishermen. Since other nations face many of the same under the flag of Mexico or other nations not subject domestic aspirations and concerns as the United to American control, but they cannot sell the catch to States regarding ocean fisheries, it is difficult to per- the U.S. if porpoise kills are involved. ceive how such actions could be prevented. Non- While these are major complexities in Federal ef- etheless, Federal fishery management actions may forts to establish and maintain a national fishery have accelerated or intensified the trend by other na- management program, they are in some ways secon- tions toward nationalizing offshore fisheries. dary to the central purpose of the Act, which is to The United States has a complex series of interests limit the total amount of fishing allowed, not to and relationships with other nations, beyond the con- determine which fishermen have access to fish stocks. cerns of fisheries or the ocean. Japan is a particularly appropriate example. Since the 1930's the United D. Management of Fishing Versus Management of States has been attempting to control Japanese Ecological Systems: What Needs to be Controlled? fishing near U.S. shores. Yet Japan is dependent as a nation upon ocean fishing for a significant portion of A basic premise of the FCMA is: its national food supply and views with concern the If placed under sound management before increasing exclusion of its vessels from various fishing overfishing has caused irreversible effects, the grounds. The United States has strong military, fisheries can be conserved and maintained so as economic and political ties wth Japan and during the to provide optimum yields on a continuing basis. late 1970's has been attempting to establish a major (Emphasis added.) (Sec. 2(a)(5)) shift in the pattern of trade between the two nations. If the United States restricts the amount of fish pro- Starting with this premise, the major thrust of tein which Japan can obtain from important fishing "management" efforts is to control fishing pressure grounds such as the Bristol Bay area in Alaska and exerted by both American and foreign fishermen. Georges Bank in the Atlantic Ocean, major problems However, there is growing evidence that shellfish and may result in other vital areas of national interest. finfish are being seriously affected by other factors. Other nations can "retaliate" for being excluded In 1973, swordfish were found to contain sufficient from the 200-mile fishery conservation zone in amounts of mercury to warrant concern for public 37 health, and human consumption of swordfish was ac- These effects include the elimination of fish tively discouraged. In a growing number of cases populations inhabiting acidified waters and the fishermen have had areas of shellfish production decline of populations of aquatic invertebrates." closed to them because of the presence of contami- The sulfate pollutants may be transported hun- nants in the water. dreds or even thousands of kilometers from the Such problems suggest that the ability to maintain original source of emission, and with increased use of sustained yields of various fish populations may fossil fuels and possibly nitrate-containing fertilizers, require water and atmopheric water quality control the acidic conditions "will probably increase."" Thus as much as control over the amount of fishing air quality emission standards set by state and pressure exerted by fishermen. Federal Government in areas as far away as the Midwest may seriously affect finfish or shellfish stocks in the Atlantic Ocean. The nation's choices 1. Chlorine. Chlorine was introduced in the early regarding alternative energy policies may likewise 1900's for the disinfection of water supplies and has determine available fish stocks in the ocean, depen- remained an important part of water quality manage- ding upon the amount of fossil fuel used. ment. However, until recently little consideration was given to possible effects that chlorine might have 3. Impingement and entrainment. Intake pipes upon fish and other aquatic organisms, and many in- placed in ocean or freshwater areas to obtain water dustrial and municipal treatment plants have for power plant cooling or other purposes not only proceeded on the assumption that the more chlorine, draw in water, but also fish, invertebrates, larvae, and the better. Some Federal and state standards require juvenile fish. This aquatic life can either be impinged or encourage the use of large amounts of this against screen covering the mouth of the intake pipe substance, and it is estimated that more than 5,000 or entrained' in the water drawn through the pipe. tons are released into coastal and inland waters each The amount of aquatic life lost is now a subject of year. concern at both the state and Federal level. There are some who suggest that the problem is so severe that Chlorination of water for drinking and of new technologies for cooling must be developed to wastewater prior to discharge from treatment plants replace those requiring constant water intake. can result in the formation of halogenated organic compounds which may be toxic to man, and chlorine For problems such as aquatic damage to the can be displaced by bromine in salt water, forming northeastern United States induced by the burning of harmful brominated hydrocarbons. Research noted coal to produce power in the Midwest, the tradeoffs by the Environmental Protection Agency reported involved are technically, politically, and legally dif- the following: ficult to deal with. Given that these are real problems with very real effects upon fisheries, it must be poin- Available data, though limited, indicates that ted out that they are not presently being considered chlorine at concentrations in excess of 0 * 01 as part of fisheries management. Under the present mg/liter poses a serious hazard to marine and policy and institutional arrangements, it may be that estuarine life." optimum yield will, in effect, be determined by the Chlorine at levels commonly contained in treated Environmental Protection Agency or the Department effluent from power plants, vessels, and sewage out- of Energy, rather than the Department of Commerce falls can lead to reproductive failures and respiratory or the Regional Councils. or filtering failures in fish, phytoplankton destruc- tion, and perhaps is in part responsible for a growing E. The Purpose of Fisheries Management number of neoplasms on oysters, clams, and mussels. The Fishery Conservation and Management Act An EPA task force recently recommended that approaches various species of finfish and shellfish as alternatives to chlorine treatment be vigorously en- "resources" that are to be harvested and consumed; a couraged. marketable commodity that should be extracted at such a rate so as to allow a sustained "yield." 2. Air pollution. Research indicates that in the However, the United States has other management Great Lakes PCB contamination of fish results to a programs which treat various forms of ocean life dif- significant degree from atmospheric transport of that ferently. The Marine Mammals Protection Act compound from the land into the water. In a similar assumes that it is in the national interest to protect fashion, sulfate pollutants released into the at- certain species of ocean life. The Endangered Species mosphere are increasingly leading to the formation of Act contains as a,basic premise that no species of life "acid rain" with a pH as low as 2.1 and 3.0. The En- should be destroyed. There is also an emerging con- vironmental Protection Agency reports that the ef- cept of "natural diversity" which would seek to in ain- fects of this acidic precipitation upon aquatic and tain the present diversity of plants and animals, at terrestrial ecosystems are numerous and complex: 29 Environmental Protection Agency, Research Highlights (June, 2' Environmental Protection Agency, Disinfection of Wastewater: 1978), p. 23. Task Force Report. EPA-430/9-75-012. March, 1976, p. 3. 29 Ibid. 38 least for some special protected areas. In combina- shorelands, and the atmosphere as well. If interest in tion with the Marine Sanctuaries Program, these the ocean is limited to its use as a source for food or national management efforts suggest a concept of products, air quality, water quality, land use and living resources management in which the population ocean dumping will have to be administered as part size and types of ocean life-forms are determined by of living resources management, if the supply of these or strongly influenced by national policy. living resources is to be maintained or increased. Systems versus Species - F. Conclusion At the present time each species or "fishery" tends to be treated separately. However, in some instances The Deepwater Port Act, the Marine Sanctuaries these individual species are interlinked biologically. Act and the Coastal Zone Management Act each And for each target species, there is a complex web of recognize the need to exert some type or degree of food chains and environmental conditions which will control over activities that might affect the purpose influence how many fish exist at any one time. of that particular management effort. Activities taking place within the safety zone of a deepwater If it is, or were to become, national policy to main- port are to come under the deepwater port regula- tain certain species of ocean life, not so that they tions. However, vessels simply transiting these zones, would be caught and consumed, but to maintain for example, are not subject to the regulations of the natural ocean systems, fisheries management might DWPA. All programs and activities by American require different types of control. For example, in- citizens within the area of a designated marine ternational consideration is now being given to An- sanctuary are to comply with the various regulations tarctic krill populations in developing a new commer- for that sanctuary. All Federal, state, and local cial fishery for that form of ocean life. However, the programs and activities taking place within. the present abundance of krill is in part the direct result coastal zone are to be consistent with the manage- of the destruction or severe diminution of several ment plan formulated for that zone. marine mammal species, including baleen whales and seals. If krill is harvested for human Use, it may result The Fishery Conservation and Management Act in the permanent suppression of the maximum does not attempt to control power plants, wetland population levels of various forms of ocean life development, or water quality, all of which can affect directly or indirectly linked to krill consumption. in a finfish or shellfish populations. What it really at- similar fashion, anchovies in California can be har- tempts to control is the activity of fishing, through vested and used for both food and nonfood purposes, regulation of who can fish, how often they can fish, or anchovies can be managed as forage for various what equipment can be used, and how much can be species of fish which function as predators upon harvested. This is really "fishing" management. If it anchovies. were fish management or living resources manage- ment, then the uses of ocean space, the quality of air In one sense, man is in direct competition with and water, and policies regarding marine mammal various forms of ocean life, not only for krill and protection and diversity of life forms would become a anchovies but also for water, wetlands, migratory direct part of the control system. This review of routes, or offshore reefs. If the nation decides to existing efforts would seem then to indicate that we protect some forms of ocean life, it will almost cer- are still not viewing the ocean and its resource system tainly require major constraints upon the United as a complete problem. States' use of fish stocks, the oceans, adjacent 39 CHAPTER FOUR ISSUES OF OCEAN MANAGEMENT 1. Introduction B. The Scope of State Interests Since the 1930's, a variety of ocean-related national The interest of states in the ocean does not stop at issues have emerged which might be appropriately the outer edge of the territorial sea, any more than discussed in a study of national ocean management. the interests of the Federal government stop at the This chapter focusses upon four of those issues. They outer edge of the continental shelf. have been chosen because collectively they illustrate the complexities of ocean management and because States are responsible for the health', safety and they appear to be central to any future efforts at general welfare of their citizens. In addition, coastal ocean control. states are held by Act of Congress to own the sub- merged lands and resources of the territorial sea. As The issues discussed include: public trustees of these resources, they have ad- � The role of state and local government, ditional responsibilities which grow apace with the � Considerations of national security, increasing value and importance of the ocean. Not � The role of private industry, and only do states have extensive interests in the ocean, but they also have responsibilities over a variety of � The national interest. programs and activities which can have a direct and Within the context of this study, discussions of significant impact upon the ocean. States, in most these issues are, of necessity, brief. An effort is made instances, are administering clean air and water to indicate why these issues are important to manage- quality programs, park development, licensing of ment of the ocean, how they have been dealt with in major facilities, approval of sewer and water projects, the past, and what their present and/or future transportation planning, and environmental review. relevance to national ocean programs appears to be. The state government is the principal entity through which these programs can be linked with ocean 11. The Role of State and Local Government in Ocean programs, and it is a link that has begun to receive in- Management creased attention. 1. Outer continental shelf oil and gas development. A. The Role of the States In the OCS Lands Act of 1953, the interest and im- The first debate over the tole of state governments portance of coastal states in offshore oil and gas in the management of ocean space and ocean development were not acknowledged. Given the bitter resources arose over the control of offshore oil in the antagonism between state and Federal government, late 1930's. Just as the Department of State was to which developed prior to the enactment of the argue during that time that Federal declarations of Submerged Lands Act and the OCS Lands Act, and jurisdiction beyond the three-mile territorial sea the pressing interest at that time in obtaining a should intrude on the high seas only in certain cases, legislative framework for OCS leasing, it is so the states argued that Federal interests within the understandable that little attention was given to the territorial sea should only be expressed on a limited, broader questions of how offshore oil would be single-purpose basis, and without an impairment of brought to land or what effects outer continental the basic ownership interests and management shelf development might have upon the submerged authorities of the states. lands and resources of the territorial sea. With the passage of the Submerged Lands Act of In the 1970's, however, when the Federal govern- 1953 an initial resolution of this issue was achieved, ment attempted to accelerate offshore oil and gas but that legislation is both ambiguous and in- development through increased leasing in "frontier" complete in its assignment of rights and authorities. OCS areas, these questions could no longer be Now, with greatly expanded ocean activity taking avoided. State governments, in cooperation with place in the context of a new governmental regulation local units of government, effectively demonstrated an and interest in the oceans, the weaknesses of this ability to influence, delay, and in some instances pre- earlier resolution become more apparent and more vent, oil and gas development. Of great significance is important. that in 1978 Congress modified the Outer Continen- 41 tal Shelf Lands Act to acknowledge the interests of degree to which states have or should have authority the states in the Federal leasing program and to allow over the regulation of navigation and marine states a considerable degree of participation in the transportation. The Submerged Lands Act and many Federal decision process. As early as 1976, when U.S. Supreme Court decisions clearly favor Federal Congress amended the Coastal Zone Management control. Perhaps the most recent major case is Ray v. Act, the problems and interests of states in OCS Atlantic Richfield Company. Effort by the State of development were being more fully considered. As Washington to establish construction, size, the result of administrative changes made by the operational, and equipment standards for tankers in Department of the Interior and legislative changes Puget Sound were in large measure rejected by the made in the Coastal Zone Management Act and the Supreme Court, with the additional suggestion that Outer Continental Shelf Lands Act, coastal states state authority may in the future be further now have a considerable degree of access to the OCS diminished if Congress should enact additional leasing process. However, there are other areas of Federal legislation. Federal ocean activity where the role of the states is The Port and Waterways Safety Act of 1972 (P.L. either disputed or ill-defined. 92-340) authorizes the establishment of quite com- 2. Dredge spoil disposal. Most coastal states have prehensive vessel traffic control systems by the U.S. some form of regulation over the water disposal of Coast Guard. While local or state regulations can be dredge spoil. An example is legislation enacted by utilized as part of these control efforts, the Act con- Massachusetts in 1976' in an effort to prevent the tains little recognition of state ocean management in- U.S. Army Corps of Engineers from establishing a terests and programs which might be affected by regional dredge spoil disposal site within vessel control programs, nor is there provision for the Massachusetts waters.' This law declares that the level of participation by coastal states in the Massachusetts Department of Environmental designing of port and waterway management plans as Quality Engineering has exclusive authority to issue is provided in the Marine Sanctuaries and Deepwater permits for waste disposal in Massachusetts waters. Port Programs. Conflicts have arisen, not only about However, Federal legislation affecting this activity the degree to which states should be able to par- contains certain language which brings into question ticipate in such ocean management efforts, but also whether states can legally regulate ocean disposal of about the states' ability to establish regulations over dredge spoil, even within the territorial sea. The the transportation of liquefied natural gas or other Marine Protection, Research and Sanctuaries Act of hazardous substances. 1972 assigns permitting authority to the Corps of In many instances there is cooperation in the area Engineers, using criteria developed by the Federal of marine transportation, but as a rule the degree to Environmental Protection Agency. Sec. 106(d) of the which state and local government can participate in -Act states that: such programs is a matter of choice on the part of the After the effective date of this title, no State Federal government, and there is no clear national shall adopt or enforce any rule or regulation acknowledgement of, or provisions for, an expression relating to any activity regulated by this title .... of state needs and concerns. As states have attempted States could certainly argue that they must have to formulate coastal management programs, they authority to regulate such activities in order to have often encountered the attitude that navigation is protect the resources and submerged lands which clearly a Federal concern and that it is up to the state Congress has agreed are in state ownership. Further- to accommodate Federal interests. An example of more, the Coastal Zone Management Act would this attitude which emerged during the formulation seem to encourage state consideration for all coastal of the Culebra, P 'uerto Rico, coastal management water activities and does not specify dredge spoil dis- program, is found when the Coast Guard indicated posal as- something that is not to be considered. its interests in Culebra's coastal zone. . However, the CZMA also declares that States must . . . for all existing and future Coast Guard operations, navigation aids, and communica- use their existing authority, and the Submerged tions, we would like to reserve the same rights to Lands Act is silent on the regulation of dredge spoil uncontrolled, non-monitored ingress and egress, disposal. If Congress did intend to preempt state by whatever means we deem practical .... The regulation of this activity, then how does that affect [coastal] management plan should not attempt to state efforts to undertake comprehensive coastal zone regulate the legitimate exercise of interstate or in- management? The location and n@anner of disposal of ternational maritime activity, an authority dredge spoil could affect a number of activities within specifically reserved for the national government. state waters and would seem to be necessary part of (Emphasis added.)' coordinated management of the territorial sea. When such attitudes prevail on the part of either 3. Navigation. There has been a continuing debate state or Federal government, it is difficult to conceive between state and Federal governments regarding the of a workable management by partnership of the Massachusetts General Laws, Chapter 347, Acts of 1976. See Armstrong and Ryner, pp. 90-81. 1 Supra., Chapter Three Footnote 18. 42 territorial sea. At issue is not whether the Federal obstruct it in the exercise of any of the powers Government has primary responsibility or authority, which the states have relinquished to the United but how legiffrimfe an& necessary interests of both States under the Constitution. One of the powers Federal and state government on the same issue can expressly surrendered by the States under the be accommodated. At the present time, there are Constitution is the power to provide and main- many areas of Federal ocean activity from which the tain a Navy. It follows that enforcement of a state is virtually excluded. state law may not be permitted to interfere with 4. National security. National security is an ad- any authorized naval functions.' (Emphasis ad- ditional area in which the Federal Government has ded.) clear responsibility and authority, but it is one in which important interests and concerns of states have C. The Role of Local Government in Ocean often gone unrecognized. On the other hand, national Management security has not always been understood or suppor- If the authority of states is unclear and con- ted by the states. strained, the authority and opportunity for local The discussion of national security included in this units of government in national ocean management chapter details some of the legislative provisions programs is almost non-existent. With the important which attempt to ensure that national security in- exception of the Coastal Zone Management Act terests have priority over all other ocean concerns. amendments of 1976, most ocean programs and Traditionally, military use of the oceans has been the policies pay little attention to local government. largest element of Federal ocean activity, in terms of "Local" government includes a wide variety of organization, research, and expenditures, and it re- governmental structures, from that of villages with mains a critical national interest. Yet many coastal 100 people to that of San Bernardino County, states have been largely unfamiliar with national California, which is larger than several foreign na- security interest in their coastal management zones; tions. Every citizen lives with a local unit of govern- and, in what must be deemed a failure on the part of ment, and major ports, offshore pipeline landfalls, both the Navy and the State of Washington, the first naval bases, power plants, and coastal access sites are coastal program for that State was strongly objected located in the jurisdiction of local governments. to by the Navy, because U.S. Navy interests had not Local government is particularly important as the really been considered. focal point of most land management; the respon- ... the Navy has interests in 32 separate sibilities for zoning and planning and the provision of geographical areas in Washington's coastal zone. basic public service are most often at this level of These areas include installations, government. For offshore management to be suc- shipyards ... mooring piers ... combat cessful and to protect local units of government from maneuver and general operating areas, [and] undue impacts, there must be better coordination gunnery ranges and testing areas .... Some between local and offshore planning and manage- prominent installations [include] the Trident ment. Submarine Base, where $75 million of new con- As an example of the problem, the Coast Guard is struction is taking place. Further, the headquar- in the process of upgrading its vessel traffic control ters of the 13th Naval District is in Seattle. Yet system for the New York Harbor area. Part of this Washington [state] did not contact the Navy un- control system involves the installation of large til after the State submitted its [coastal manage- ment] program to NOAA .4 microwave towers. In the spring of 1978, the City of New York, at least temporarily, blocked their If states have been insensitive to national security installation over fears that the microwave radiation needs, the same lack of sensitivity seems to exist at emanating from these towers might constitute a the Federal level where it often is perceived that the health hazard to city residents. Similarly, local and role of state governments in national security use of state governments were able to obtain an initial order the ocean is to accommodate whatever the national against offshore leasing in the Baltimore Canyon area government claims to be necessary. Consider the in 1977 when they declared that they would refuse to following Navy document excerpt: allow pipelines to enter into their areas of jurisdic- Regardless of the legislative jurisdictional tion, and a Federal judge declared the OCS leasing status of the property involved, the United States environmental im Fact statement inadequate because may exercise in all places whatever jurisdiction is it had failed to c hsider that possibility. essential to the performance of its constitutional functions without interference from any sources. 1. Coastal zone management. When the Nation adopted a national goal of energy independence Thus no state may exercise any authority (Project Independence), it became increasingly which would in any way interfere with or restrict the United States in the use of its property or Naval Facilities Engineering Command, Department of General Accounting Office, The Coastal Zone Management Defense, Naval District Washington Coastal Land use Study, Program(Washington, D.C., 1976), p. 58. Part I(July, 1976). 43 evident that local units of government should receive This is a somewhat unusual provision for any attention in relation to ocean management programs. Federal legislation and reflects as much a pragmatic In 1976, Congress amended the Coastal Zone recognition of the political and legal power of local Management Act to recognize a strong role for local government as any philosophical support for their in- units of government in national ocean programs: terests. In fact, there is often a Federal distrust, if not hostility, towards local government, and the Coastal Section 306(c)(2)(B), CZMA, 1976 Amendments Zone Management Act is premised in large part upon the alleged inadequacies of local institution a*l (i) [The State] management agency is arrangements for planning and regulation, (Section required, before implementing any management 302(g)), and a belief that local government has a ten- program decision which would conflict with any dency to advance parochial interests over those of the local zoning ordinance, decision, or other action, nation (Section 306(c)(8)). to send a notice of such management program decision to any local government whose zoning Few states have yet to develop a workable system authority is affected thereby. for achieving the objectives established in the 1976 CMZA amendments, and many local units of govern- (ii) Any such notice shall provide that such ment remain unaware either of the degree to which local government may, within the 30-day period state coastal planning may impact their interests or of commencing the date of receipt of such notice, the opportunity which the 1976 amendments provide submit to the management agency written com- them. But the measure of the effect of these provi- ments on such management program decision, sions will come after several states have actual and any recommendation for alternatives experience in administering coastal management thereto, if no action is taken during such perio programs. In the meantime, local government re- which would conflict or interfere with such mains largely apart from other national ocean management program decision, unless such local management programs and is either opposed or in- government waives its right to comment. sensitive to state or national projects. (iii) Such management agency, if any such D. Cooperative Management comments are submitted to it, with such 30-day period, by any local government- Given the fact that the shore and various compo- nents of the ocean are under the control of multiple (1) is required to consider any such com- authorities, this is very reasonable. In the Coastal ments, Zone Management Act and in the 1978 amendments (11) is authorized, in its discretion, to hold to the Outer Continental Shelf Lands Act, 'a a public hearing on such comment, cooperative approach to ocean management is and suggested. There seems to be a move in this direction, and legislation, such as the Deepwater Port Act, (111) may not take any action within such provides additional evidence that both state and 30-day period to implement the Federal Government are more aware of the need for management program decision, coordination and cooperation. whether or not modified on the basis of such comments. However, many times this cooperation does not take place, and it is even resisted. There remains a" These provisions augment what are already fairly tendency to resort to assertions of jurisdictional extensive requirements contained in Section 306(c)(1) authority, which in most instances are not relevant. and 306(c)(2)(A) and (B). For example, the latter While the presumption within the Federal courts may requires that prior to approval a state program must be in favor of the Federal government, there comes a be found to have point at which the most basic of local and State rights coordinated its programs with local, area- and authorities require some degree of, recognition wide, and interstate plans applicable to areas and accommodation by the Federal government, no matter what the determined distribution of within the coastal zone ... which plans have been "authority." developed by a local government, an areawide agency designated pursuant to regulations E. Limits to Development established under Section 204 of the Demonstra- tion Cities and Metropolitan Development Act As more coastal areas become extensively, of 1966, a regional agency, or an interstate developed and subject to comprehensive planning, agency; and such as under the Coastal Zone Management Act and the Clean Air Act, there are going to be increasing dif- established an effective mechanism for con- ficulties in finding any acceptable coastal site for tinuing consultation and coordination between large-scale development, particularly energy develop- the management agency designated pursuant to ment. At times, project sponsors, faced with opposi- paragraph (5) of this subsection and with local tion at the state or local level, have charged these governments ... and agencies in carrying out the units' of government with being selfish or failing to purpose of this chapter; .... understand that a national interest is involved. In the 44 growing frustration, proposals appear from time to And what should be the authority and responsibility time for making the accommodation of major of states beyond the coastal zone; inland states may facilities mandatory, although it is not clear how that wish to benefit from offshore revenues and may, could be done. directly or indirectly, generate pollution or be respon- In some instances, local or state resistance may e sible for other negative impact upon the ocean en- based upon the lack of sensitivity to regional or vironment. Will inland states seeking Federal funds for solar energy development oppose federal support national interests. But often at issue, instead, is the r future of the local community or the state. It is at the Jor offshore ocean energy systems in territorial local level where the "costs" of accommodating waters9 coastal development must be absorbed, and in a Clarification of existing statutes is also needed. Are growing number of instances, as coastal and ocean states prohibited from regulating the disposal of areas have become more developed and water and air dredge spoil? If so, why? To what degree will state quality standards more stringent, these costs are per- coastal management programs be able to control, or ceived as being too high to be acceptable. Programs not control, this and other Federal programs, such as such as the Coastal Energy Impact Program, devised navigation? What is the intent and significance of by Congress in 1976, may make some states or local Sections 2(e) and 3(d) of the Submerged Lands Act units of government more interested in accom- regarding "water power"; or "the use of water for the modating energy-related development. But quality of producton of power?" Does this mean that state life is sometimes a non-negotiable commodity. If coastal management programs or other state wetlands and water quality are to be protected, if management efforts will not be able to manage ocean recreation, fishing, aquaculture and residential energy systems such as Ocean Thermal Energy Con- development are to take place in coastal areas, and if version (OTEC). national standards for air and water quality are to be Chapter Two of this report presented in some attained, then, in time, there will be no room for large power plants, refineries, chemical plants, or other detail the difficult process, lasting at least 15 years, by major facilities in coastal areas. This is already a which the United States established its first legislative national problem, and, unless some resolution can be articulation of the distribution of authority over the achieved, it will eventually become a crisis. But a ocean and its resources. As was pointed out in that solution, if there is one, will require moving beyond a section, the focus of debate was upon oil' and gas. historical conflict among all three levels of govern- Concepts of large scale ocean thermal energy conver- ment. sion (OTEC), microwave harbor traffic control systems, massive supertanker oil spills, mariculture, F. Conclusions weather modification, missile test ranges, marine sanctuaries, and floating nuclear power plants With the passage of the Submerged Lands Act the offshore were not foremost in the mind of those who role of state and local government in ocean manage- resolved the issue of who should control what. ment may have been considered resolved. Yet It is not clear now how authority and responsibility problems remain. Local and state governments among Federal, state and local government should be receive literally billions of dollars in federal assistance allocated. Resolution of this issue requires, in part, a each year, and, in many instances, the expenditure of better understanding of how the ocean, as well as the those funds can have major impact upon shore and adjacent land, will be used in the future, followed by ocean resources and activities. And other billions of a determination of the kinds of linkage or fit that will dollars are spent each year directly by the Federal be needed between the two areas. This need for government in ocean programs and activities, often cooperation in this matter by all levels of government uncoordinated with, often unaware of, the programs is relatively new. The Coastal Zone Management Act of local and state government that might complement concept of a cooperative management effort based or conflict with Federal ocean management efforts. upon existing authorities may not work, but it is too Federal agencies have found some programs often soon to really know. Nonetheless, the present obstructed by proposed state coastal management problems and pending decisions alluded to in this dis- programs, and states have encountered resistance to cussion suggest that it is both appropriate and coordination in coastal management. Local govern- necessary to specify the role of state and local govern- ment units, as of 1978, remain largely unrecognized ment in much greater detail. and uninvolved in ocean programs, while being affec- ted by and affecting them. The role of local and state government requires in- III. National Security and Ocean Management creased attention. International Law of the Sea negotiations are considering the concept of a 12-mile A. Introduction territorial sea and of a 200-mile national ocean economic zone. What responsibilities, interests, and At least until the 1970's, United States ocean authorities will or should coastal states and local programs have been associated largely with national governments have within this larger territorial sea? security, whether measured by annual expenditures 45 or by sea power capabilities.' The U.S. Department offshore oil and gas resources during the 1930's, so of the Navy, Department of Defense, and associated that the Navy might obtain additional fuel supplies intelligence organizations are vitally interested in for its vessels. Measures introduced in Congress in worldwide ocean use for purposes of national defense 1938 and 1939 reflected this: and intelligence. This includes a major worldwide network of satellites, underwater detection systems, the conservation of petroleum deposits un- planes, vessels, weapons, communication networks, derlying submerged lands adjacent to and along command systems, personnel, advanced research, the coast of the state of California, below low- strategies and policies. We would think that struc- water mark and under the territorial waters of tures and activities taking place above, on, or beneath the United States of America is hereby declared the ocean within several hundred miles of the United to be essential for national defense, maintenance States coast are monitored, as part of a worldwide of the Navy, and regulation and protection of in- ocean information effort. terstate and foreign commerce, and that in the exercise of the paramount and exclusive powers For many years such efforts have probably of the United States for these purposes, there are operated unhampered by competing domestic or in- hereby reserved and set aside as a naval petroleum ternational policies or programs and by the absence reserve any and all such deposits. (Emphasis ad- of competing activities, When coordination has been ded.)' necessary with other nations, private industry, or various units of government, it has been done infor- Thus, the Navy attempted to gain control of all oil mally, and most conflicts were quietly resolved and gas in and beyond the territorial sea as a fuel through appropriate negotiations. reserve. At Senate hearings on this legislation, the Navy Judge Advocate General's Office went so far as But times are rapidly changing. The seabed to suggest that the President, using certain war beneath the high seas may come under the manage- powers,' could establish a defense sea.area including ment control of a formal international seabed regime. all submerged oil fields and then issue regulations How ocean space and ocean resources are used, both which would stop commercial drilling- operations.9 in U,S. coastal waters and elsewhere, is being deter- Throughout the 1940's and 1950's, there was an mined more and more through complex and formal ongoing dispute between the Department of the In- national and international management programs. terior and the Department of the Navy regarding The ability to locate national security facilities or national ocean management. The Navy supported operations within the relative obscurity of ocean the Department of State in opposing Interior's at- space is rapidly diminishing, and the ability to tempts to establish a 150-mile Federal ocean manage- navigate at high speeds on or beneath the ocean's sur- ment regime and continued to argue for Naval rather face is becoming more difficult as ocean development increases. Further, those developments may become than commercial utilization of offshore oil deposits. an additional defense burden, requiring physical As related in Chapter Two, the Navy did briefly protection and defense strategies. gain control of offshore oil from the Department of At the present time there is a tacitly accepted policy the Interior in 1953. Motivated by strong feelings that U.S. security interests will have priority over all about Federal versus State rights and perhaps by other national ocean interests and programs. If this political animosity towards newly elected Dwight policy is to be maintained in the presence of growing Eisenhower, President Truman issued 'Executive Or- numbers of state and Federal ocean management der No. 10426 four days before leaving-office. In this programs and policies, it will require complex and order, all submerged lands of the continental shelf, formal conflict resolution and siting procedures. The including those of the territorial sea, were declared to substantive context of "national security" interests be administered by the Secretary of the Navy." may also be subjected to increasing scrutiny as other --I. Outer Continental Shelf Lands Act. When public and private interests are displaced in its name. Congress enacted the OCS Lands Act,of 1953, a The basic premise that national security interests -special section was added to tescind Truman's should have priority over ocean space and resources action. may also be subject to increased challenges. Thus, it Executive Order Number 10426, dated is important that this subject be included as an in- January 16, 1952, entitled 'Setting Aside Sub- tegral element of any discussion on ocean manage- merged Lands of the Continental Shelf as a ment. Naval Petroleum Reserve' is hereby revoked. B. Legislative Considerations for National Security But Congress recognized that important national Interests security interests were associated with management _@@artley, pp. 109-4 10. The Department of the Navy was a strong ad- 40 Stat. 250, Section 8 (August 8, 1917). vocate for Federal imposition of authority over Bartley, p. 119. Nossaman, Waters, et al., Study of Outer Continental Shelf 6 Edward Wenk, The Politics of the Ocean (Seattle: University of Lands of the United States, Volume 11 (Los Angeles: Public Land Washington Press, 1972). Law Review Commission, 1969), pp. 171-173. 46 of the outer continental shelf, and certain provisions to conservation, utilization, and development of were included in the OCS Lands Act to protect those mineral resources .... (Sec.3(7)) interests: Section 12(a) The President has the authority a. Problems. The Department of Defense and other to withdraw any unleased lands from the leasing national security organizations have and do use the process. domestic and international oceans for a variety of purposes, some of which are highly classified and Section 12(b) During time of war or when the politically sensitive. It has been claimed by some that President prescribes, the Federal Government there is a need to provide evaluation of such activities has first claim at market prices to any minerals and to have substantive review of the military uses. produced from the outer continental shelf. Yet the Engle formulation appears on its face to be Section 12(c) During war or national unsatisfactory. If there is a highly sensitive national emergency any leases can be suspended. security interest, a public declaration to that effect Section 12(d) The United States reserves and will probably compromise it, even if the exact nature retains the right to designate by and through the of the interest is not specified. So, it is not a workable Secretary of Defense, with the approval of the system. Furthermore, in those instances when the President, as areas restricted from exploration Department of Defense has submitted legislative and operation parts of the outer continental shelf proposals for withdrawal, Congress has been reluc- needed for nation defense; and so long as such tant to act upon them. As of 1969, none had been ap- designation remains in effect, no exploration or proved." operations may be conducted on any part of the surface of such area except with the concurrence b. Policy change. In 1965, the Senate Committee on of the Secretary of Defense .... Interior and Insular Affairs considered several bills Section 12(e) All uranium, thorium and other submitted under the Engle Act and received a sugges- materials which are peculiarly essential to the tion from Interior that the Secretary should have a production of fissionable material contained in greater consultative role in the withdrawal process. the subsoil or seabed of the outer continental The Senate Committee requests that DOD confer shelf are reserved for the use of the United States. with the non-military interests involved in the Section 12 (f) The United States reserves and proposed area and attempt to work out an agreement retains ownership of and the right to extract all that would be mutually satisfactory to the govern- helium contained in gas obtained from the outer ment and private industry. Subsequent to that direc- continental shelf. tive DOD withdrew its legislative proposals and These provisions allow the President and the worked out an informal process with the Department Secretary of Defense to determine which areas of the of the Interior". outer continental shelf shall be available for commer- cial oil leasing, and which areas will be reserved for c. Present situation. There is still no formal national defense activities and interests. It also mechanism for sorting out DOD interests in the OCS assures Federal access to and control over all leasing process, and the Engle Act is, more often than materials which might be useful for nuclear weapons not, ignored with the knowledge of Congress. The and atomic power. process is informal, not subject to formal public 2. Engle Act. By 1958, Congress felt compelled to scrutiny. Ad hoc negotiations between the Depart- diminish the national security provisions of the Outer ment of Defense and the Bureau of Land Manage- Continental Shelf Lands Act and enacted the Engle ment (BLM) can result in the withdrawal of hundred Act." This law requires an act of Congress for the of thousands of acres from lease sales. The criteria withdrawal of more than 5,000 acres in the aggregate used in such decisions are not visible, nor have they for any one defense project or facility of the Depart- been developed through any kind of formal public ment of Defense. The Act also requires that, in policy process. Significant tradeoffs are involved, and requesting approval for a withdrawal of more than BLM is placed in the position of evaluating national 5,000 acres, the Department of Defense state the pur- security claims and the national interests involved in pose or purposes for which the area is proposed to be acceding to or rejecting DOD requests. withdrawn, reserved or restricted, or, if the purpose or purposes are classified for national security 3. The Coastal Zone Management Act. Virtually all reasons, a statement that is an indication major Federal ocean programs contain a provision whether, and if so to what extent, the proposed which insures a consideration of national security in- use will affect continuing full operation of the terests. While these provisions may normally be. of lit- public land laws and federal regulations relating tle public interest or concern, they constitute a Study of Outer Continental Shelf Lands, p. 254. 72 Stat. 27 (1958), P.L. 85-337. Ibid., pp. 326-327. 47 national policy of giving priority to national security D. Security Classification interests over all others. The Coastal Zone Manage- A serious difficulty in evaluating or coordinating ment Act is quite explicit on this point. Section 307 national ocean programs is the continued classifica- (c)(3)(A) stipulates that Federal licenses or permits tion of both present and historic documents, policies, can be issued by a Federal agency, even if it would be activities, and decisions procedures. Beyond that dif- inconsistent with a state's management program, ficulty is a basic conflict between the need to restrict provided the Secretary of Commerce finds that the access to activity is "necessary in the interest of national national security information and the need security." Section 307 (c)(3)(B) and Section 307(d) for public understanding of and participation in contain similar override provisions, allowing the national programs affecting the ocean. Secretary of Commerce to bypass state coastal 1. Ocean management information. United States management programs for certain purposes, if it is military and intelligence agencies may have an exten- determined to be "necessary in the interest of sive inventory' of information on the ocean and its national security." resources, and a multi-billion dollar system for the One of the potential issues associated with this type collection and evaluation of additional information. of provision is that "national security" is not clearly Domestic ocean management programs are now defined and could conceivably be applied to a variety being established, such as the regulation of ocean of activities or proposals. dumping; control of commercial fishing activities; and vessel traffic control systems; new, expensive, and relatively sophisticated inventory, monitoring and communications systems, which will not begin to C. National Security Policy Formulation duplicate the systems which the nation may have already established for national security purposes. National security involves more than strictly This situation -gives rise to the following two military interests. Depending upon how one defines problems. 66national security" it involves intelligence functions, military functions, and perhaps several more areas a. Avoidance of duplication. It may be asked with of national interest such as: growing frequency whether or not the information � Sufficient merchant marine capacity to insure and equipment developed for national security pur- transport of goods into the United States and poses cannot be made available, at least partially, for from the United States to allies; domestic ocean mangement purposes. The Depart- � A secure supply of all materials upon which we ment of Defense will, of course, argue that its systems are dependent, such as various minerals; must remain classified and must be dedicated to � A secure supply of fuel in the form of oil, coal, military use at all times, if military missions are to be nuclear material, etc., fulfilled. In many instances, the defense and in- � Anti-terrorist capabilities. telligence agencies have provided compelling argu- Much of the present structure of national security ments for the necessity of separate domestic and management is classified. In fact, one can assume national security systems. But if domestic ocean that various procedures related to national security management efforts continue to expand, and the cost uses of the ocean are covered by classified executive of necessary information and control systems in- orders or other means. But it is clear that this process creases, this issue may receive additional attention. is complex and not totally unified. There does appear to be conflict, overlap, and problems with com- b. Protection of necessary security. Systems munication and coordination. Even within the developed to discover submerged deposits of oil or Department of Defense there occasionally appear in- terservice rivalries over the use of ocean space and minerals can also be used to locate submarines. other ocean-related matters. As a result when Interior Satellites used to monitor sea conditions and is "informally" requested to withdraw lands for merchant vessel traffic would also be used for the national security purposes, those purposes may be identification of military targets and the gathering of withheld from other members of the "national intelligence information. Extensive biological, security" community. In theory the Department of geological, and chemical information on coastal Defense structure and the National: Security Council, waters could be used by hostile forces. Detailed in- along with the newly reorganized intelligence ventories of ocean activities could identify military or network, can achieve a rational process for policy intelligence installations or activities. formation and program coordination, but it is not clear that this has yet been achieved. A structured The United States has often suppressed or delayed ocean policy and program which identifies national the utilization of advanced optics and sensors in its security interests and then coordinates these with domestic remote sensing satellites as one means of domestic programs would help achieve some degree dealing with this problem, and the sale of certain of consistency and long-range cooperation. computers and oil exploration equipment to par- 48 ticular nations has likewise been discouraged. But the communication networks may be disrupted problem is likely to become increasingly difficult, either electronically or physically. Dedication especially in ocean management, as domestic control of special ocean-related frequencies may be programs begin to require sophisticated information important. DOD is investigating new com- in order to achieve their goals. munications technologies which will expose ocean systems and ocean users to new forms of 2. National ocean policy and decision procedure. electromagnetic radiation. What are the Security classification of Department of State and biological and political implications? Department of Defense programs, policies, and ac- Facilities: National security projects will in- tivities makes it difficult to achieve coordination of creasingly face the same problem as oil com- national programs and objectives. Because so much panies, electric utilities, and others who wish of this type of information is classified, there is a to place large facilities within the coastal zone possibility that much of the usual public decision or the oceans beyond. The Coast Guard has process will be consistently bypassed. While many experienced opposition to the placement of members of Congress and administrators within microwave towers in New York City as part of Federal agencies have security clearances, that by no its New York Harbor vessel traffic control means assures that they have access to classified in- system. The Navy has experienced strong op- formation. It creates a situation in which the general position in the Midwest to the construction of public is asked to accept the good judgement of the an extremely low frequency (ELF) antenna National Security Council and other decision groups system. DOD must find locations to bring without having any means of fully understanding the ashore connections to its underwater detection decisions that are being made and the tradeoffs in- networks. Local governments and coastal volved. states are in many instances questioning Once it may have been relatively easy to establish a traditional national security uses of coastal clear distinction between domestic and national lands and waters, as well as the authority of security interests. But as both public and private DOD to utilize special operation areas in ocean activities increase, this distinction will be more ocean space. And yet in many instances the ac- and more difficult to sustain. Some method for commodation of facilities is vital to the opera- allowing an interface of domestic and national tion of various national security programs. security interests in ocean management programs will Military ocean dumping: In many parts of the become increasingly important, and it may require ocean, there are unexploded shells, mines and something more workable than the Engle Act, and bombs, radioactive wastes and probably other something more accessible than the National Security hazardous materials resulting from military Council and associated decision groups. Such a activities. They represent a hazard and mechanism will be necessary, not only to provide in- obstacle to increased use. Yet they are not ac- creased information and assistance to domestic ocean curately mapped or inventoried, and the cost management programs, but also to insure the con- of proper mapping or removal is unknown; it tinued protection of necessary national security probably would cost millions of dollars. Aside secrecy. from costs, removal may not be technically possible or environmentally acceptable. Given E. Additional National Security Considerations the wide variety of materials and systems with Terrorism, vandalism and criminal extortion: which the military has been involved at various As ocean development occurs, problems of times, it is not even clear just what has been this type will probably emerge. Who should dumped. have authority and responsibility to deal with Given hazardous materials such as nerve gas them? Private ocean users? The Coast Guard? and agent orange, as well as nuclear waste and State police? The Navy? Some special force or biological weapons, there remains the issue of group? how to dispose of them. Special incinerating � Military capabilities: The Navy and other ships at sea may be one answer, but as ocean national security organizations have use and management increases, alternatives equipment, research results, technical skills, may be required. management networks, and considerable ex- perience in a wide variety of ocean-related F. Conflict Resolution areas.Is it possible to transfer some of this An issue which may require additional considera- information to coastal states, private industry, tion is how to resolve conflicts between specific other Federal agencies,or other nations? Can national security activities and other national in- military equipment be used for non-military terests in the utilization of ocean space and ocean purposes? Can military personnel be used on resources. The Marine Protection, Research and U.S. soil for enforcement? Sanctuaries Act, the Deepwater Port Act, The Sub- � Communications: As private and public use of merged Lands Act and The Coastal Zone Manage- oceans increases, important national security ment Act each contain language regarding national 49 security or defense considerations Yet there is no should not be so extensively involved in the regula- clear conflict resolution mechanism should a major tion of fishing, telling fishermen how often they can disagreement arise. One can assume that the Presi- fish, what gear they can use, or what they can catch. dent and/or National Security Council would in- There are two aspects to this issue: one is the degree tevene, but it is not clear that this should always be to which 'government should attempt to control the process, nor is the criteria by which final decisions private use of the ocean, and the other is how private should be made. enterprise should be granted access to the public resources of the ocean as well as the extent of that G. The Establishment of a National Ocean Manage- access. An associated matter, although having less to ment Program do with control or management, i 's whether Federal assistance should be provided to private enterprise in Since the 1930's the Navy has argued that it is its use of ocean space and resources, and if assistance counter to the national interest to have a national is provided, who should pay for it. management program that extends beyond the territorial sea. This position is promoted by concern A. Industry's View about departmental turf and by serious concerns that such programs might encourage other Nations to When the Stratton Commission considered these establish similar programs, thereby constraining U.S. questions as part of its study of national ocean pro- national security operations. Is the Navy correct?. If grams and interests it determined from industrial it is correct, then any new national ocean management sources that private industry desired certain types of effort must consider how various national ocean government assistance, primarily in form 'of basic related interests can be met within the context of in- services, clarification of legal regimes, the provision ternational constraints. This subject is discussed in of pre-investment reconnaissance surveys and supp- later sections. ort and financial support or development of basic technology.". The Commission went so far as to .H. Conclusions dev 'elop a list of the appropriate actions of the Federal Government relative to the ocean, from the National security interests have played a key role private sector point of view: in the formation of national ocean policies and pro- 0 establish and enunciate national policies and grams, and national security ocean activities still objectives concerning U.S. marine interests; represent the single largest national ocean-related expenditure. Yet these interests change dramatically 0 assist in planning for optimum use of limited over time. The national security structure has been public resources, including the resolution of reorganized, most recently the intelligence com- conflicts among users of the sea which cannot munity. The future role of the Navy in national otherwise be adjudicated; - security is being debated, and the resolution of this 0 adopt regulatory policies which will not dis- debate could have profound effect upon the role of courage private investment; the Navy in national ocean management programs 0 provide special incentives to encourage certain and policies. embryonic marine industries, if it is in the Military and intelligence uses of ocean space and national i 'nterest; resources and their impacts on national ocean 0 undertake and improve the description and programs and policies are significant and may prediction of the marine environment and become more important in the future. It appears an assess possibilities of modifying it beneficially; appropriate time to evaluate fully present needs, con- 0 initiate, support, and encourage marine educa- flicts, mechanisms, and opportunities involving the tion and training programs; role of national security in national ocean manage- ment. This brief discussion has only touched upon 0 protect life and property at sea; some of the many important issues involved. Such an 0 sponsor programs to obtain basic information evaluation may, of necessity, have to take place for industry's subsequent delineation and beyond the context of ocean management, but any development of marine resources." national ocean management formulation should Those proposals appeaIr to be consistent with many include a national security component, somehow of the interests or opinions of the ocean industry dealing with these and additional-, issues. today, and they also reflect the content of many pre- IV. Private Industry and Federal Ocean Control sent Federal ocean programs. 1. Establishing management regimes. Large-scale During the 1930's and 1940's, The Department Of development or major financial investment requires the Navy argued that offshore deposits of oil should well thought out objectives, policies and regulatory be held in reserve for naval use and not be made framework within which investment decisions can be available for private commercial purposes. During the 1970's many commercial fishermen have Our Nation and the Sea, p. 158. expressed the view that the Federal Government 15 Ibid. 50 made. During the the mid- and late-1970's, the ocean tempts to exert control over how these resources are mining industry has argued that national ocean developed. Although the situation has greatly im- mining legislation is necessary, if the development of proved, it would appear that the Federal Govern- new technologies and mineral resources is to take ment still must rely to a very great extent upon place. There is a reluctance to invest money or equip- private industry to know what areas are promising ment in the deep seabeds without some clear un- for oil development. Therefore, since the public does derstanding of what rules and regulations will apply. not know what resources it has, it cannot properly This was the reason, in part, for the Deepwater Port manage them or know what its best interests are. Act and was, to a large extent, behind the passage of Furthermore, because this type of information is the Submerged Lands Act and the Outer Continental privately developed, it is often kept, quite understan- Shelf Lands Act in 1953. It was not until after the dably, by the private sector to protect patent rights territorial sea and OCS lands jurisdictional dispute and to maintain a competitive advantage. The had been resolved that full-scale offshore oil develop- problem is not dissimilar to that of classified infor- ment and other coastal activities could take place mation discussed previously. with any sense of investment security. In addition, if Federal ocean control programs in- Industry at times appears to have supported crease in number and scope as they have during the government regulation in an effort to overcome last ten years, we can expect demands for more infor- resistance to private projects. At the present time, the mation and proposals to establish complex and oil industry is arguing that there is a national interest expensive public ocean information systems. A ques- in both onshore and offshore energy development tion which warrants careful consideration relative to and that state coastal management programs should such systems is the degree to which the private sector to some degree accommodate necessary energy- could provide it, without the need for major public related facilities and activities." (Also see the discus- expenditures sion of national interest in this Chapter.) If private in- 1. Who pays? The Federal Government maintains dustry can get its interests equated with those of the extensive and expensive ocean services, including nation, then formidable Federal or state governmen- vessel traffic control systems for major harbors, tal authorities can assist. However, while industry in search and rescue, and dredging of navigational some instances desires governmental regulation or channels. There is Federally-provided weather irifor- assistance, there is also frequently opposition to mation, considerable financial and technical government constraint of private activities or active assistance, and other services to ocean users. Some of government development of public resources. these program are at least nominally self-supporting, 2. Federal development of resources. Industry has such as some financial assistance program for the often supported financial assistance for the develop- fishing industry. But there are many others services ment of new technology which would allow increased which clearly are not paid for by those members of development of ocean resources. But private industry the private sector who benefit directly from them. tends to oppose direct government development of The rationale for public programs which are not paid those resources. At various times proposals have for by a user group is usually that the benefits of the been made to have the Federal Government under- program are so widespread as to be considered to take either exploratory drilling for or actual produc- benefit the general public, and thus warrant public tion of offshore oil supplies. The petroleum industry financial support. In other instances there is a has argued against this, declaring that, while the cooperative agreement in which the Federal Govern- Federal government has a right to control how ment provides certain services but receives informa- offshore oil and gas are developed through a tion from ocean users in return. This presently leasing/regulatory process, the actual development of applies in some degree to national security, weather, those resources should be left to the private sector. charts, other information programs. And that is the system which has prevailed, with government tending to supply support, protection, C. Financial Assistance policy and regulation, and the private sector under- During the 1960's, there was a particularly strong taking the actual development. push by industry for major Federal expenditures for new research and development. There was con- B. Information siderable discussion of a "wet NASA" approach to A major problem relating to goverment/industry the ocean, with industry providing equipment and the participation in ocean development is that for Federal Government providing research and resources such as offshore oil and gas, private in- development money. However, it was argued then, dustry holds most of the available information as to and still is, that domestic industry, to be competitive resource supply and techniques for development. The with foreign industries, should do most of its own problem develops when the Federal Government at- research and development and not rely on govern- ment. Interviews with staff of American Petroleum Institute, June 1978, plus API letter to William Harsch, Executive Office of the Yet, other nations provide financial assistance, President, dated February 16, 1978. especially to the fishing industry and the opposing 51 argument is that, unless the United States provides a E. Regulation and Delay similar level of financial support, U.S. industry will The time, expense, and complexity of Federal not be able to remain competitive. It remains a regulations are of growing concern to industry. As complex issue involving not only the appropriate relationship between the public and private sector, with most of the issues mentioned, these problems are but also political and economic considerations not confined to ocean management programs. But related to the balance of trade. coastal and ocean rules, procedures, standards, and regulations are expanding, and they are, in many D. A Merging of Public and Private Interests instances, complex. Within the territorial sea, basic procedures or standards may radically differ from For the fishing industry, the Federal Government one state to the next. Federal programs are ad- provides a variety of financial and other types of ministered quite differently from region to region. assistance, including the funding of research, Partially in response to state and Federal require- technical assistance and regulatory protection from ments, local government is also increasingly involved the U.S Fish and Wildlife Service and the National in various regulatory programs, adding further Marine Fisheries Service; vessel construction complexity. assistance; hatchery research and production; regula- As Federal control of ocean space, resources, and tion of foreign vessels (thus creating a monopoly); activities expands, it can be increasingly difficult to marketing assistance from market surveys of work through the control process. The permit process customer preference to the development and testing for obtaining government approval to construct a of new seafood products; and operation of the Sea liquefied natural gas terminal at Cove Point, Grant marine advisory services. Maryland, extended over a period of 49 months. The These forms of assistance blur the distinction bet- details of this example can be seen in a report on ween private and public market economics and again liquefied natural gas by the Office of Technology raise the question as to the appropriate relationship Assessment and provide an interesting insight into between the public and private sector. Through the complexity of at least one marine development several legislative statements of policy, Congress has problem of the type mentioned here." At issue in declared that ocean fishing (and many other ocean some instances is whether the public interest is really activities) are in the national interest, as a material being served by imposing such long delays upon both contribution to our economy, as an important source public and private projects. However, as more con- of employment, and as the source of essential trols are applied, as more public interests are iden- materials. tified, it is difficult to avoid this situation. One of the results of public assistance is sometimes F. Conclusion a higher public cost for goods and services. i *. when government programs serve to Both Federal and state governments are charged enhance demand on established fish products, the with a public trust to ensure that the ocean is programs have the effect ... of typically in- managed in the public interest. This public trust creasing prices and profits. Thus, it is the con- would appear at times to come into conflict with sumer that pays, through taxes, for a program private industry interests in using coastal or ocean that raises consumer prices." resources for private purposes, even though the private activities are often aimed at satisfying a public But when it works properly, financial assistance demand. The number of controls imposed upon can also assure a broader supply base leading to a ocean users can be expected to increase. To the stabilizing effect on prices; it can lead to a more degree that the nation still desires to allow or en- secure supply, and may encourage greater efficiency courage ocean development, it will probably be and conservation leading perhaps to a lowering of legally, economically, politically, and technically prices. The interest and capabilities of individual necessary to rely upon the private sector to undertake ocean users may not match public needs or interests, that development. If this is the case, then the Federal and government assistance can be used as a form of efforts to control and direct ocean space and ac- management, as a method of public intervention in tivities in the public interest will have to somehow be the private market to influence industry towards reconciled with the needs, objectives, and capabilities areas of public interest. It is estimated that at the pre- of private industry. sent time the United States spends in excess of $2 The greatest immediate challenge seems to lie in billion per year on ocean programs. Whether those the area of coastal accommodation of private programs are in the form of assistance or prohibitive projects such as power plants, refineries, and regulation, the question of where the money will pipelines, and in other questions of access, such as come from to pay for these programs will continue to limited entrance for all fishing interests including grow in importance. private fishermen. It will be interesting and valuable B.J. Rothchild, A Policy Framework for Fishery Management Offi.cc of Tcchnology Assessment, Transportation of Liquefied (unpublished manuscript. Department of Commerce, 1978), p- 131. Natural Gas (September 1977), Appendix A. 52 to follow these developments closely with respect to interest. The fishing industry, the shipping in- the question of industry /government interactions in dustry, mining and oil industries, and in a sense, longer term ocean management issues. the scientific community are among the groups in our society for whom the oceans have a special V. The National Interest significance .... . . . Nevertheless, the national goals are not A. Background merely the sum of the special interest goals. They are rather those goals like the preservation of Efforts by coastal states to gain approval for peace, the extension of the rule of law and justice, coastal management programs developed under the the maintenance of a strong economy, and the authority of the Coastal Zone Management Act of safeguarding of health, property, and resources 1972 have revealed that there are certain basic dif- held in common which must be achieved to per- ficulties in thinking about and defining the concept of mit the full realization of the goals held by in- "national interest." The CZMA requires that states dividuals and special groups which constitute our give "adequate consideration of the national in- society. A centralized plan is therefore needed terest" involved in the planning for and siting of because of the size, complexity, and importance facilities. More broadly, states are charged with of the field and the fact that its growth recognizing national interests in the process of (oceanography, being so sensitive to decisions coastal management programs formulation and with made at the Federal level) introduces considera- implementing coastal programs that reflect local, tions of national interest." state, Federal, and private industry interests. B. Some National Studies The problems that have arisen for the coastal management planning program as it attempts to deal As early as the 1940's, the United States was faced with the question of national interest are similar to, with a need to identify what its ocean interests might although not always synonymous with, problems that be, and, as described in Chapter Two, a major have been encountered in attempting to undertake national study was undertaken in 1943 and 1944. Ad- management efforts for ocean space and ocean ditional studies were undertaken in preparation for resources beyond the territorial sea. The issue in- the 1958 Law of the Sea meetings. volves both procedural and substantive elements. By the late 1950's and early 1960's several domestic 1. Deflning the "National Interest." As a political groups began to consider what the Nation's interest concept, it appears that almost all interest groups in the ocean were, and what, if any, ocean programs equate their own concerns with those of the nation. If should be established. During that time, the usual a group's interests can be enshrouded with "national" conclusion was that the national interests in the importance, there is a probability of higher priority, ocean could best be served by establishing major new improved access, and increased funding. This makes efforts in marine research and development. The the process of defining or attempting to accom- Navy, in a study entitled, "Ten Years in modate and reconcile a variety of interests more dif- Oceanography" (1959), and the National Academy ficult, since there may be no objective test of what is of Sciences in "Oceanography 1960-1970" (1959) and what is not a "national" interest. both came to the conclusion that the Federal Govern- ment needed to upgrade and coordinate "National interest" suggests an amalgam of local, oceanographic research. state, regional, and Federal interests, of both public and private concerns. There is not one national in- 1. Interagency Committee on Oceanography. One terest in the oceans, but rather several interests which of the major studies of that period was undertaken by in some instances may be contradictory or mutually a committee of the Federal Council for Science and exclusive. It is not clear that "multiple use" (the Technology which had been established in 1960. The simultaneous accommodation of multiple interests Interagoncy Committee on Oceanography (ICO) in within a particular time and place) is always possible 1963 prepared a long-range national oceanographic or desirable. It would seem that national interests are plan for the years 1963-1972 ("Oceanography: The often whatever the formal political and legal decision Ten Years Ahead"). According to this plan, the basic process can come up with; they are whatever Con- interests of the United States in the ocean and its gresg, the courts, or the President declare them to be. resources should be: One particularly interesting comment was made by I the Interagency Committee in 1963: To comprehend the world ocean, its boun- There are, of course, many special groups daries, its properties, and its processes, and to within the nation that are concerned with (the exploit this comprehension in the public interest, oceans) in their own behalf, without explicity in enhancement of our society, our culture, in- equating their interest to that of the nation as a ternational posture, and our economic growth." whole. Fostering their healthy development, Interagency Committee on Oceanography, Oceanography- The subject to normal political, social, and economic Ten Years Ahead( Washington, 1963), pp. 4-5. constraints, is almost a definition of the national 20 Ibid., P. 1. 53 While this general statement of national interest (1) The accelerated development of the was not very specific, ICO also suggested the need for resources of the marine environment; federal programs to achieve the following five objec- tives: (2) The expansion of human knowledge of the � strengthen basic sciences, marine environment; � improve national defense, (3) The encouragement of private investment � manage resources in the world ocean, enterprise in exploration, technological development, marine commerce, and � manage resources in domestic waters, and economic utilization of the resources of the � protect life and property, insuring the safety of marine environment; operations at sea." (4) The preservation of the role of the United States as a leader in marine science and 2. Marine Resources and Engineering Development resource development; Act of 1966. The year 1966 was a particularly active period in the oceanic and environmental fields. The (5) The advancement of education and Coast Guard was placed within the new Department training in marine science; of Transportation (P.L. 89-670), an important (6) The development and improvement of the estuarine pollution study was authorized (Clean capabilities, performance, use, and ef- Water Restoration Act, P.L. 89-753), the Water ficiency of vehicles, equipment, and instru- Resources Council was established and river basin ments for use in exploration, research, sur- commissions authorized (Water Resources Planning veys, the recovery of resources, and Act, P.L. 89-90), a 12-mile continuous fishery zone transmission of energy in the marine en- was declared (P.L. 89-958), the Sea Grant Program vironment; was established (P.L. 89-688), the Cabinet-level (7) The effective utilization of the scientific Marine Science Council was set up and a national and engineering resources of the nation, ocean study was authorized by the Marine Resources with close cooperation among all in- and Engineering Development Act of 1966. terested agencies, public and private, in or- der to avoid unnecessary duplication of ef- The Marine Resources and Engineering Develop- fort, facilities,and equipment or waste; ment Act (MREDA) of 1966, as its name indicates, (8) The cooperation by the United States with had moved beyond the oceanographic focus of the other nations and groups of nation and in- late 1956sand early 1960's and reflected a growing ternational organizations in marine science number of assertions that the nation should do activities when such cooperaton is in the something with ocean resources in addition to ac- national interest. tivities relating to petroleum and fisheries. While major emphasis was still given to the need for Even though this set of objectves seems closer to research, there was also a new emphasis placed on the generic issue of resource management, it still does ocean utilization and expanded development, not deal directly with the issues of conflict resolution including both military and civilian areas. The policy and control of ocean resources and uses. statement of the MREDA, which is reproduced below, was the first legislatively articulated statement 3. Our Nation and the Sea. The Marine Resources of national ocean interests and expands in scope and Engineering Development Act provided for the upon the interests and focus of the earlier policy establishment of a special commission to undertake a statements on the territorial sea and outer continental study of national ocean programs and interests. In shelf made in 1953. 1967, President Johnson appointed Julius Stratton as Chairman, and in 1969 the so-called Stratton Com- Section 2(a) It is hereby declared to be the mission published Our Nation and the Sea, which has policy of the United States to develop, en- served as a principal guide for many subsequent Con- courage, and maintain a coordinated, com- gressional and Presidential ocean-related actions. prehensive, and long-range national program in The report was wide-ranging and included a number marine science for the benefit of mankind, to of specific recommendations for new legislation, for assist in protection of health and property, international agreements, and for new institutional enhancement of commerce, transportation, and arrangements. Its concept of the national interest was national security rehabilitation of our commer- ba'sically the same as that contained in the MREDA, cial fisheries, and increased utilization of these although the implications and complications of and other resources. protecting those interests was considered in much (b) The marine science activities of the United greater detail, States should be conducted so as to contribute to One significant difference from prior discussions of the following objectives: the nation's interest in the ocean was the Stratton Ibid., p. 15. Commission's declaration as to just how important 54 the ocean and its resources were and would become. demonstrated. From a multitude of interests, needs, Our Nation and the Sea frequently emphasized that and options the state is to establish a set of priorities there is a national interest in the ocean that goes and permissible uses for its portions of the territorial beyond programs of research and development. The sea. Commission concluded that essentially the ocean is Specific topics or issues, such as energy facility linked to all of the Nation's interests and that advan- siting and shore access are to be considered, as cing the Nation's ocean interests should become a another effort to insure that the national interests are major mission of government, protected. However, if these elements have been con- How fully and wisely the United States uses sidered, no matter what the substantive results, in the sea in the decades ahead will affect most instances the program will have met the require- profoundly its security, its economy, its ability to ments of the Act. meet increasing demands for food and raw materials, its position and influence in the world 2. Substantive issues. Various provisions of the community and the quality of the environment in Coastal Zone Management Act indicate a con- which its people live .12 gressional determination that there is a national in- And further, terest in beaches and public access to the coastal zone; in energy facilities and their siting and impacts; The advancement of this Nation's capability to in shoreline erosion; in adequate. communication use more effectively its marine environment with local government; in increased coordination bet- deserves recognition as a major mission of ween state management of the territorial sea and government .21 shore and the Federal leasing of OCS lands. The efforts described in this section were various From an ocean management viewpoint, Congress attempts to understand the position of oceans as a did not attempt to determine a national interest in subject of national value and concern.They did not in developing a territorial sea policy, except to declare themselves form an implementing mechanism in that coastal waters should be subject to improved which the national interest in the oceans had to be ac- public management. As a result, there are a number tually used in a management sense. The following of Federal ocean policies and programs and many section describes one formal programmatic effort private interests affected by the lack of clear Federal that does have to cope with defining and using the intent in the territorial sea. national interest in management of coastal resources A marked contrast to this absence of substantive including the territorial sea. indication of national interests, especially in terms of how they might specifically be accommodated with C. The Coastal Zone Management Act the coastal zone, is contained in the provisions Some of the most recent considerations of national relating to national security. Section 307 of the ocean interests have been associated with the Coastal CZMA provides for a by-pass of the state coastal Zone Management Act of 1972 and its 1976 management program by the Secretary of Commerce amendments. for purposes of national security. As will be seen, national security has been given priority over other 1. National interest as process. In section 302 (a) of national interests in many ocean programs and is an the Coast Zone Management Act, Congress implied national policy. declared that: 3. The Integration of Previous National Interests. There is a national interest in the effective There are many Federal programs and policies on management, beneficial use, protection,and energy, increased OCS leasing, wetland and flood- development of the coastal zone. plain protection, mitigation of environmental impact, Congress did make some substantive identification protection of endanged species, and many others of national interests in the coastal zone, to be dis- impinge to some degree on the coastal zone. It has cussed below, but to a considerable extent, the precise been argued by some Federal agencies and by private nature of national interests was unspecified, and interest groups, such as the American Petroleum there was almost no indication of how these interests Institute, that these Federal programs and policies were to be accommodated or conflicting interests must be included and accommodated by the state reconciled. coastal programs. The thrust of this argument, which is still emerging, is that once Congress or, the Emphasis was given instead to a process by which President, through proper exercise of Constitutional national interests could be identified for the coastal authorities, has established a policy or program, it zone. All interested groups are to have access to the becomes a national interest, and coastal states are program formulation process, and a program is not bound to insure that these interests are implemented to be approved unless broad participation can be and protected. Our Nation and the Sea, P. 1. Thus, the petroleum industry has argued that since Ibid., p.230. Congress and the White House have approved a 55 program of accelerated offshore petroleum produc- define what national interest are, and additional tion to help meet the goal of energy independence problems in reconciling conflicting interests. Even if that coastal states have an obligation not only to con- and when those problems are resolved, there remains sider such programs and policies, but also to make the issue of how national interests are to be actually sure that they are implemented. Following this line of accommodated or implemented in ocean manage- argument, which could just as easily be applied to the ment efforts. protection of wetland or fish habitat, for example, one might conclude that the number of national con- In the coastal zone, it is not clear that a workable siderations required could overwhelm the state's accommodation of a growing number of national ability to assemble an effective coastal management ocean interests can be achieved through a series of ad program. hoc negotiations between the many individual Federal agencies and 30 coastal states. It is not clear Caution is necessary when considering the imposi- that it is in the national interest to have a national tion of mandatory provisions within state coastal territorial sea in which there m4y be as many as 30 management programs. This follows from two fac- separate definitions of what is permitted and what tors: has priority. It seems possible that there are certain (a) The national interest is not synonymous with basic national interests, such as national security, Federal interests. At a minimum it also includes state, navigation, food production, energy production, and local, and private interests, although that fact is recreation which might warrant a more uniform sometimes obscured. The argument that Congress is territorial sea policy. the mechanism by which local, state, and Federal in- terests are formed into the national interest is true to E. Conclusion a great extent. Neither the Constitution nor the For a variety of reasons, a growing number of in- courts have declared that if Congress articulates a terest groups are increasingly effective in asserting national interest, and one or more states do not their interests in public and private decisions. It is a choose to accommodate that interest, the state will, in relatively new phenomenon, emerging during the last all instances, be forced to comply.There are Con- decade, and it has been stimulated, in part, by gressionally funded state and local programs which numerous Federal efforts to encourage a Ind facilitate seek to encourage historic preservation, housing public participation. development, economic development, and environ- mental protection. A particular national program The most important aspect of this phenomenon is a such as accelerated offshore oil and gas leasing may growing sensitivity and sophistication about the in- not always be compatible with these other "national terconnection of issues, environmentally, eco- interests," and it is at the local and state level where nomically, and politically. As a result, fishermen those incompatibilities become evident. Before man- protest power plants as dangers to estuarine finfish datory requirements are dictated, it would be and shellfish breeding grounds. Local communities necessary to insure that they could actually be accom- protest Federal OCS lease sales out of concern for modated without violating basic Constitutional possible oil spill damage to beaches and the changes protections or other equally important but conflic- in the social fabric of the community which such ting national interests. leasing may induce. (b) Second, and of considerable importance, under This suggests at least two significant implications present law, it is the states who own the submerged for national ocean management: lands and resources of the territorial sea. These states (1) The oceans may be the only place in which ac- are impressed with a public trust to manage those tivities or facilities can be located, the only place in submerged lands and resources so as to protect the which the costs of displacement are not so high as to health, safety, and welfare of their citizens.While be unacceptable. Yet, at the same time, much of each state may be required or obligated to accom- ocean space is already allocated: to fishing, naviga- modate or attempt to accommodate the interest of tion, national security, recreation, atmospheric main- Federal agencies and other states and regions, there is tenance, and sustenance of a vast web of interconnec- still a basic duty to the interests of the citizens of the ted life forms and geological processes. They are not state, and those interests may differ considerably a last frontier in the sense of unused land, nor are from region to region. The premise of the Coastal they free of jurisdictional and policy constraint. Zone Mangement Act is that these interests are so different that no fair or workable set of standard (2) Greater pressure to use the oceans can already provisions can be identified by Congress and the best be seen, but its full force is probably some years approach is to allow full participation and comment, away. It is also probable that not all of this demand so that each state to works out its own version of can be accommodated, although national philosophy what "wise use" constitutes. and political inclinations may be reluctant to respond to this limitation. D. Implementing or Using the National Interests If more interests are to be accommodated within There are problems in attempting to identify or ocean space, certain changes in Federal ocean 56 programs can be expected: 9. Potential oil spill trajectories and time to More structure in the allocative decision shore; process will probably be required to insure 10. Commercial and sport fisheries; that new activities fit within the growing web of national ocean interests. The shore and the 11. Marine and intertidal biological communities; ocean will require increasing "management" 12. Onshore biological communities; or control, if only to prevent a growing num- ber of activities from getting in each others' 13. Rare and endangered species; way, 14. Archeologic and historic sites; A process will not lessen the need to resolve basic conflicts of interest, the finite nature of 15. Onshore and offshore recreation; ocean space, or the sensitivities and limited 16. Existing infrastructure relating to the carrying capacity of the ocean. Bringing every petroleum industry in the region (refining, interest group into the decision process in and pipelines, oil terminals); of itself will not insure that the national in- terest is met, or that it will be defined. 17. Transportation network; and Decisions will take longer, if a serious attempt 18. Water quality." is made to reconcile all of the interests in- volved in major ocean decisions. Amendments to the Outer Continental Shelf Land Neither government nor private industry will Act, changes in the leasing process made by the be able to initiate actions or place facilities Department of the Interior, and 1976 amendments to with the freedom they have enjoyed in the past. the Coastal Zone Management Act would indicate Federal projects will not be able to easily that even more factors will be considered in future assert a "national" interest unless local and leasing decisions, such as the objectives and provi- state governments are allowed a meaningful sions of the state coastal management programs and role in the planning and decision process. the land use plans and public service infrastructure of local communities. Rather than a narrow or single purpose deci- sion, such as, which sections of OCS land to The "national interest" in the ocean would appear lease or how many yellowtail flounder should to be a collection of interests that is growing, it be caught, decisions will expand into systems includes local, state, and Federal concerns, it involves evaluation, seeking out impact networks, long- virtually all sectors of the economy and it changes range cumulative implications. This means over time. Because of the change, because of the greater cost, more time, and more skill will be diversity, there is probably a need to rely to some needed in reaching decisions. degree upon the various decision processes to deter- mine what the national interest is for a particular This kind of change can already be seen. In a recent proposal at a particular time and place. Georges Bank leasing decision, the Department of the Interior considered the following wide variety of But there would also appear to be a need to make factors in selecting tracts for final sale: some hard choices between basic conflicting national interests. Long-range viability of the marine environ- 1. Industry nominations; ment and assured access to ocean space and resources 2. Geological and geophysical data, including to meet vital national interests cannot be assured if Geological Survey opinion on oil and gas the national interest is articulated solely on a case-by- potential of tracts based on this information; case basis. 3. Oil and gas resource estimates; Whether or not it was a wise or necessary action, the Federal Government has taken upon itself, 4. Geological hazards (based on bottom sedi- especially since 1970, the control of how the ocean is ments, faulting, earthquake potential, etc.); used. The physical and chemical properties of ocean 5. Current technology; water, or the number and type of fish found in that water historically have been a function of natural 6. General climatology and seasonal weather pat- dynamics and human activities. These properties and terns (visibility, temperature, winds, storms, characteristics., have become influenced by expres- precipitation); sions of national interest with all of the burdens and 7. Physical hazards (ocean dumping areas, complexities which attach to the national interest. If military activities, sites of unexploded am- the United States continues to attempt to exert more munition, undersea cables, navigation lanes, control over ocean activities and ocean conditions, shipwrecks, harbor areas); the task of defining the national interest will become increasingly cumbersome. 8. Physical oceanography (sea temperatures, sur- face circulation including waves, swells, and Department of the Interior, Final Environmental Statement, tides); OCS Sale No. 42 (1977), Volume 1, p.21. 57 CHAPTER FIVE SOME MANAGEMENT ASPECTS OF OCEAN CONTROL Introduction governmental control over ocean activities has become extensive; the decision process is increasingly Previous chapters have shown that since the 1930's complex. The cost to both the private sector and the there has been a change in the level and type of public is increasing. government involvement in ocean-related programs and policies. In broad terms the Federal Government These control efforts have been constructed has, over a period of some forty years, established a without any formal framework of national ocean major presence in the ocean if not an accompanying management. The absence of such a framework framework of policy. Prior to that time, there had reflects a policy choice evolved in the 1940's, and it is been some regulation of navigation, some revenue a choice which, at this point, might warrant ad- collection, and most noticeably, military activities, ditional evaluation. but it was at the state level of government where Since the early 1960's, proposals have been advan- authority and responsibility were assumed to exist for ced to establish a central Federal ocean department fishery management, mineral leasing, or other ocean or agency and to develop additional ocean control Or resource controls. Further, there was only a limited management programs. As interest in the direct use perception that any government involvement was of the ocean for the production of energy, weather needed in ocean affairs. modification, mariculture, offshore siting of facilities, Starting from an interest in developing offshore oil, and new international ocean regimes, continues to defense, and intelligence requirements, the efforts to grow, proposals for new Federal ocean management transfer control of primary ocean resources from the efforts can be expected. However, with few, if any, state to the Federal level, and an interest in asserting exceptions, these proposals focus upon some national jurisdiction over ocean fisheries beyond the institutional arrangement. The Interagency Commit- three mile limit, the nation by 1953 had established a tee on Oceanography, The Stratton Commission, and series of regimes for the management of the territorial to a lesser degree the General Accounting Office and sea, the regulation of fishing, the leasing of outer con- the National Ocean Policy Study of the U.S. Senate tinental shelf lands and support for science. During have all advocated the formation of new policies or the 1970's increasing ocean use and a growing con- organizational arrangements. cern for environmental protection led to the Before workable decisions can be made as to how establishmnt of yet another type and kind of ocean ocean programs should be structured or which program with the United States assuming through department or agency should be given authority over legislation some form of responsibility for a sizeable them, it seems appropriate to identify more clearly portion of ocean space and resources. We now find what it is that the Federal Government is actually at- that determining the number and type of whales that tempting to manage, why it must be managed, what swim in the sea as well as their management have problems or conflicts require additional Federal ac- become not only a topic of public debate, but also a tion, and what would constitute a solution to them. It matter of national policy. And four times a year, the is also important that we improve our ability to assess number of yellowtail flounder that can be harvested objectively existing and proposed ocean control or by New England fishermen is set by the U.S. Govern- management efforts. Telling a "good" management ment. In theory, what can take place and cannot take program from a "bad" one is very difficult given our place within the territorial sea, and which activities present measures of effectiveness. will have priority, is supposed to be carefully explicated in a series of coastal management As an aid to that process, this chapter examines in programs which attempt to coordinate all local, state, greater detail the basic concept of Federal ocean con- Federal and private actions taking place within these trol or management and some of the components and "management zones." options of ocean control systems. The following diagram shows the general permit- 1. Character, Nature, and Degree of Control ting process for ocean dredging projects in California. As presently structured, it requires at least Perhaps one of the most basic issues or questions 18 months to obtain a permit, and it can take 2 to 3 to be considered is how much control the Federal years. As this diagram illustrates, the amount of Government wishes or needs to exert over the ocean, 59 MARINE PROJECT PERMIT PROCESS DETAILED FLOW CHART APPLICANT - LONG BEACH HARBOR DEPARTMENT (LBHD) I CEGA Waco SUBMIT APPLICATION ORPS C RCZCC APPLICATION FOR PERMI ATION FOR PERMIT PPLICATION FOR APPLIC DETERMINATION APPLICATION FOR ESTABLISHMENT OF WITH CEOI@VTION OR EIR) (WITH CEGA ACTION OR EIR) --A@ WASTE DISCHARGE REQUIREMENTS AND -& CEaA LEAD AGENCY: CERTIFICATION OF COMPLIANCE WITH THE "OCEAN PLAN" REGI LB PLANNING FCORPS OF ENGINE 10 . EOCNIALSFROVAASTTIAOLN DEPARTMENT I I COMMISSION MAKE DETE IRMINATION MAKE PRELIMINARY ENVIRONMENTAL ASSESSMENT TRANSMIT NOTNICE OF INTENT I I 7-7 PRELIAINARY CATEGORICALLY ENVIRONMENTAL IMPACT STATEMENT REQUIRED ENVIRONMENTAL EXEMPT, PREPARE DRAFT EIS NO EIS REQUIRED ASSESSMENT( MINISTERIAL APPROVAL IN CONCEPT TENTATIV ICONSULT WITH FEDERAL Et STATE AGENCIES) PUBLISH POST NOTICE OF INTENT REQUIRED'EA WASTE PU13LISM DRAFT EIS Et PUBLIC NOTICE PUBLIC NOTICE CERTIFY POSTING TO RCZCC OR DISCHARGE EMERGENCY REQUIREMENTS 4- APPROVAL 4;, RCZCC PREPARE PEA 4@ -4@ - - - 2@ 46- 4@ I SUB ITWITH ACCEPT APPLICATION, APPLICATION RCZCC CORPS ENVIRONMENTAL U.S. DEPT. U.S. DEPT. STATE 1COUNTYOFLA ASSIGNNUMBER, SU MITWITH PROTECTION OFINTERIOR OF COMMERCE RESOURCES CITY OF LB NOTIFY CORPS (bLBHD) APBLICATION PUBLISH PUBLIC NOTICE a AGENCY SUREAUOFLAND NATIONAL MARINE AGENCY OT ER PUBLISH NOTICE OF CO SULTWITH CERTIFY TO WQCB MANAGEMENT, FISHERIES SERVICE NTE STED PUBLIC HEARING PUBUC AGENCIES CEAN, AIR RESOURCES SO FISH ft WILDLIFE. NATIONALO CONSERVAT]ION, PARTIES MAKE DETERMINATION GEOL SURVEY. SURVEY I LA REGIONAL NATIONAL PARKS, FISH b GAME, QCB HEALTH. LBIHID &ALL FN IRONMENTAL IMPACT NEGATIVE DECLARATION OUTDOOR LANDS DIVISION, NEARBY PROPERTY RV RECREATION, NAVIGATION III OWNERS Ep LESSEES EPORT IEIRI REQUIRED DISSE INATE RECLAMATION OCEAN DEVEL, PUBLIC PARKSAND I NOTICE RECREATION, COMMENT AT ;UBLIC HEARING LBIHD RE Y CLAMATION ED., 1015T DEGIONALWATER PREPA E BMIT WITH UALITY CONTROL ENVIRONMENTAL APPLICATION ST -FIS EPA OTHER BOARD, DATA BASE 116- & E . FISH Ef INTERESTED TRANSPORTATION/ STA A LDLIFE. PARTIES HIGHWAYS, LOND (LBHD AS LEAD AGENCY RES FICE NATLMAFUNE WATER RESOURCES FOR ANY PROJECT ON LBHD PROPERTY) CON GLIB . FISHERIES SVC. CONTROLBOARD, CONSULT WITH OTHER AGENCIES. OFIGANIZ, b PERSONS , PREPARE DRAFT EIR COMMENT COMMENT ON EIS OR PUBLIC NOTICE COMMENT ON EIS ISSUE PERMIT DENY PERMIT FILE NOTICE OF COMPLETION WITH SUBMIT OBJECTIONS TO PROJECT, IF ANY OR PU13UC NOTICE SUBMIT FOR SECRETARY)RESO RCESAGENCY NOTIFY DISTRIBUTE DRAFTU - REGIONALWQCB@ CORPS REVIEW EIRTOAGENClis WITH PURVIEW & PERSONS WITH EXPERTISE AS MONITORING PROGRAM FOR CERTIFICATION W TEDISCHARGE RECOMMENDATION LB PLANNING1 E, RED IREME S FcORPS OF ENGINEERS COTNT I I COMM CO REVI COMMENTS Et HOLD PUBLIC HEARING (ON DRAFT EIS PUBLIC NOTICE) ,ENT ORDIEWTE BETWEEN APPLICANT & OBJECTING AGENCIES FOR PROJECT REVISIONS PREPARE Er PUBLISH FINAL EIS APPEAL LBHD - LEAD AGENCY1 STATE WATER SUBMIT EIS THRU DIV S ON ENGINEER & OFFICE OF CHIEF ENGINEER I SCHEDULE PUBLIC HEARING RESOURCES FOR FILING WITHICOUNCIL ON ENVIRONMENTAL QUALITY IFJUSTIFIED CONTROL BOARD EVALUATE COMMENTS, STATECZCC PREPARE FINAL EIR. SUBMIT FOR CERTIFICATION CERTIFY C, IMPLIANCE COUNCIL ON ENVIRONMENTAL QUALITY] LB BOARD OF HARBOR C@tls WITH ---T- ORDER DENY (OCEAN PLAN) PUBLISH NOTICE IN FEDERAL REGISTER PERMIT PERMIT AFTER 30 DAYS NOTIFY ISSUED CERTIFY IR COMPLETION, REVIEW& CONSIDERATION FILE NOTICE OF DETERMINATION, STATING: 4- A. EIR HAS BEEN PREPARED I - NOTIFY ENCY G T NY JLY JECTAPPR ALORDISAPPROVAL C'O B. SIGNIFICANT ENVIRONMENTAL EFFECT C. PRO SONS FOR PORVOJECT APPROVAL IF ENVIRONMENTAL RPS OF ENGIN EERS D. REA EFFECTS ARE SERIOUSLY ADVERSE I I ISSUE PERMIT -T OR DENY PERMIT I --f- APPLICANT - LONG BEACH HARBOR DEPARTMENT (LBHD) [email protected] 26JUNE,1975 REV.J.G.K.518-76 and this includes a need to identify what is to be con- However, it does appear that the magnitude of trolled: ocean space, ocean resources, ocean ac- control implicit in present Federal ocean manage- tivities, ocean-related governmental programs. ment related programs has not been fully ap- As suggested in Chapter One, there is a spectrum preciated. It is not clear that in all instances the of control which can be exerted by the Federal Federal Government needs to exert so much control; Government. During the 1940's and 1950's, the Un- that it is capable of achieving control of this scope ited States adopted an approach to ocean manage- and type; or that the nation can afford such control ment that was constrained by global ocean policy efforts. And it seems prudent, if not necessary, to give considerations. Since that approach was adopted, as further consideration to the complexities and described in Chapter Two, Federal ocean control ef- implications of attempting to control the ocean forts have been legislatively designed so as to avoid before major new institutional arrangements are for- the appearance of exerting control over the ocean it- mulated or new ocean management efforts at- self or more accurately, have been designed to deal tempted. with specific problems. Thus the Deepwater Port Act When, and if, a determination is made as to what is presented, not as a control of the ocean, but of more should be managed, beyond our current efforts, deepwater ports. The Fisheries Conservation and the problem of evaluating a management approach to Management Act involves controls over fishing, not achieve that new control still must be faced. Assume the ocean. There are other programs which control we can measure a "gross ocean product" in total oil spills, tanker safety, navigational patterns, pollu- dollars. If it is X dollars under our present "ocean tion, pipelines, outer continental shelf mineral management" system, will it be more or less than X leasing, or marine mammals. In each instance the under new ocean management arrangements that point is made by Congress that these are not controls could be implemented? of the ocean, but instead, of activities, special issues, or resources. However, in its control of deepwater Even if we were to decide that "gross ocean ports the United States is dedicating a portion of product" is a proper decision variable, it is doubtful ocean space to a single use and in that process con- that we could quantify it to the degree necessary to trolling ocean space, ocean activities, and to some make program choices. degree, ocean resources. The leasing of outer con- tinental shelf lands is but one small part of an entire II. Tools for Ocean Management collection of ocean and coastal uses entailed in There are a variety of means by which the United offshore petroleum production and requires decisions States can effect its goals, principles, or interests in on air quality, navigation patterns, use of the water ocean space and ocean resources. The means must, of column, ports, the territorial sea, and shorelands. If course, be suited to the task and the situation. the nation truly wishes to manage fish populations, Choices will be different if one is attempting to there may be a need to control estuaries, surface influence the taking of marine mammals by Japanese runoff and discharge, air quality, weather modifica- fishermen in Japanese waters or if one is attempting tion, ocean energy production, and a variety of other to regulate how many yellowtail flounder fishermen related activities and conditions. from Gloucester catch. It is one thing to minimize assertions of national It is also important to remember that national juridiction for foreign policy purposes. It is an ocean management would involve at least three aitogether different thing to understand the scope separate but related types of tasks: and degree of control that will be required to meet a particular national ocean objective. In particular the . managing various natural ocean systems; United States has attempted to avoid the appearance . managing human ocean-related activities; and of controlling ocean waters, including both surface . managing government ocean programs and waters and the water column. In an effort to maintain policies. the "high seas" status of oceans throughout the world, the United States has refrained from the type When discussing tools for ocean management, it is of assertions of authority advocated by Ickes and sometimes useful, although difficult, to differentiate others and has instead asserted control over activities conceptually among these tasks. Ocean management or conditions. Yet control of any major ocean ac- tools are considered below. tivity would seem to involve control of ocean space; and the United States is presently commited in A. Economic Sahctions legislation to a considerable degree of ocean manage- Canada has for several years followed a policy of ment. Consider, for example, the Coastal Zone subsidizing fisherman and processors for fish they Management Act, which, if taken at face value, export to the United States, allowing Canadians to implies an extension of control over the territorial sea charge lower prices than American fishermen. Accor- portion of the ocean. It is somewat analogous to ding to a recent Department of Labor finding: comprehensive planning and zoning for a major ur- ban area, but it is similar to some of our western Many American fish distributors and public lands programs in the space it applies to. wholesalers use the imports of Canadian 61 groundfish, flatfish, and scallops as leverage in management is a prime example of the importance of bidding down the prices paid to domestic fisher- evaluating the connections between ocean affairs and men for the same species of groundfish, flatfish other areas of national interest. and scallops.' The world has become a complex, intractable, and In June of 1978, forty Congressmen wrote to interconnected place and to assert one's national in- Secretary of the Treasury Blumenthal requesting that terest in it, by whatever means, requires careful a countervailing import duty be imposed upon Cana- analysis, considerable skill, and a certain amount of dian fish imported into the United States. The luck. Treasury Department turned down the request, but this exemplifies the motivation and method of using Example: Brazil and Mexico economic sanctions as a fish management tool. Brazil and Mexico have recently indicated an in- Perhaps the strongest example of the use of tention of excluding U.S. shrimp fishermen from economic sanctions as a fish management tool is con- their two-hundred mile national fishing zones. This tained in Section 205 of the Fishery Conservation and will probably result in increased competition and Management Act. That section provides that if- fishing pressure upon United States shrimp fisheries I .the United States cannot gain an agreement in the Gulf of Mexico and the South Atlantic as with other nations to allow American fishermen some three hundred large U.S. shrimping vessels desired amounts of access to that nation's currently fishing in Mexican or Brazilian waters are fishing grounds; or displaced. 2. a nation prevents American fishermen from In response to this situation, U.S. fishermen have engaging in fishing for highly migratory species; suggested that economic sanctions should be used as or leverage to insure continued access of U.S. boats to the waters of Brazil and Mexico. 3. if a foreign nation seizes an American fishing vessel or otherwise subjects American fishermen The response of the deputy director of the National to undue harrassment; Marine Fisheries Service Southeast Region was: then the Secretary of the Treasury is authorized to ... let's face it, there's [sic] many other things implement various economic sanctions against that involved in all of these negotiations. Trade of the country until such time as the dispute is resolved, United States with Mexico and Brazil does not including specifically the prohibition of importation involve just fisheries products.' into the United States of fish or fish products from Brazil, Mexico and other nations which might be that nation. subjected to economic sanctions are part of a Similar legislation has been proposed which im- changing world in which we seek friendships. We face poses economic santions on countries which fail to major ocean-related decisions in the years ahead abide by whale catch quotas established by the In- regarding the South Atlantic and the entire Pacific ternational Whaling Commission. Basin. A new era with changed resource utilization, military alliances, and economic networks is Economic sanctions have been referred to as "the emerging. It is within this context that any ocean- ultimate weapon in the arsenal of fishery managers."' related economic sanctions must be evaluated. No However, economic sanctions are a limited tool that management tool is free of cost, and the trade-offs in- in many instances are not usable or are ineffective. At volved in imposing sanctions upon a foreign nation times all such sanctions accomplish is to let other na- over ocean management issues are often subtle and tions know the degree of our displeasure. At worst, long-lasting. At a minimum the evaluation of the such actions can generate anger and resentment with trade-offs should take into account Defense Depart- severe long-range impacts upon United States in- ment concerns and be based on a comprehensive un- terests. Economic sanctions must be evaluated within derstanding of all our ocean-related interests, and the the broad context of national interests, international effects the application of such sanctions will have on relationships, and military affairs. them. The ability to undertake such an assessment is . It is true that economic sanctions are a tool that presently difficult, given the lack of a coordinated can be used to further our ocean related interests. program or coherent set of national ocean policies And within the generic category of "economic sanc- and mechanisms for the formation and modification tions" fall a diverse group of covert and overt actions of such policies over time. Without careful evalua- which can and have been used by many nations. But tion, the use of any significant management tool has the use of economic sanctions as a tool of ocean as much potential for mischief as it does for furthering our ocean-related national interests. Paul Kemprecos, The Cape Codder, June 23, 1978. Lester Brown, et al., "Living Resources of the Sea," in Progress M. Gene Mearns, "Shrimpers Upset Over Superport and as if Survival Mattered, (San Francisco: Friends of the Earth, Shrinking Gulf Fishing Areas," National Fisherman, May 1978, 1977), p. 135. p. 3. 62 B. Coordination of Shore Access and Offshore Ocean out in a manner that will sustain the biological Use productivity of coastal waters and that will maintain healthy populations of all species or Since access to the shore is needed for ocean egress marine organisms adequate for long-term com- or ingress or for the siting of support facilities for merical, recreational, scientific, and education ocean activities, control of the shore can have signifi- purposes. (Sec.3230) cant impact upon how the ocean is used. Similar management of ocean uses could support and b. Land Policy Relative to Commercial Fishing enhance desired landside policies and objectives. Facilities serving the commercial fishing and However, at the present time this land/water coor- recreational boating industries shall be protec- dination is more a matter of contention than an effec- ted and, where feasible, upgraded. Existing tive management tool. During 1977 several coastal commercial fishing and recreational boating communities intervened in Federal courts to slow, harbor space shall not be reduced unless the de- modify, or block Federal leasing of Baltimore Ca- mand for those facilities no longer exists or nyon OCS lands. They were successful in gaining adequate substitute space has been provided. initial court recognition of the ability of local com- Proposed recreational boating facilities shall, munities and states to prevent or severely limit OCS where feasible, be designed and located in such developments by denying access for pipelines and an- a fashion as not to interfere with the needs of cillary facilities. The American Petroleum Institute the commercial fishing industry. (Sec. 30234) (API) has initiated a series of suits against coastal states whose coastal management programs do not provide sufficient guarantee of access for energy- related facilities to meet API's interests. Example 2: Coastal Zone Management Act Although land/water coordination was not fully With reference to this problem, and the potential spelled out or conceptually developed at the time of use of shore access management as a tool to support its passage, one of the principal objectives of the ocean management objectives, a provision of the Coastal Zone Management Act is to bring about such 1976 amendments to the Coastal Zone Management coordination within the territorial sea. To date that Act is of particular interest. Section 305 (b)(7) effort does not seem to have been properly conceived requires that approved state coastal management or implemented and in most instances has not led to programs contain: such coordination. A definition of the term 'beach' and a planning process for the protection of, and access to, public beaches and other public coastal areas of environmental, recreational, historical, aesthetic, Example 1: California's Land/Water Coordination ecological, or culture value. for Commercial Fisheries Management While these provisions are rather limited in scope, To maintain a strong commercial fishery, several reflecting legislation that had been introduced for conditions must be met, including regulation of several years to establish a national beach access fishing pressure to maintain a "sustained" yield of planning program, the concept of a coastal access commercial fisheries stocks, the maintenance of cer- planning process and/or management program could tain quality standards for the marine environment, be expanded to coordinating national ocean manage- and the provision of adequate shoreside facilities. ment with state and local shoreland management. This last condition is becoming a serious problem in If beach access planning were expanded to include many parts of the country, and the Fisheries Manage- shore access planning, and if environmental, ment and Conservation Act of 1976 will ultimately recreational, historical, esthetic, ecological, and fail if the necessary fish processing plants, equipment cultural values were expanded to include economic storage sites, and adequate harbor space are not and national security values, an effective land/water provided. coordinating mechanism might be achieved. The In recognition of the link between ocean fishing potential of this tool is great, if cooperation among and shoreside land use policies, the State of local, state and Federal Government can be achieved. California has adopted as a coastal management It may be that, with existing state control of the land principle that shoreside facilities for commercial and Federal control of the water, effective coordina- fishing should be protected and improved, along with tion may, in most instances, not be possible and that management efforts to insure the sustained biological coastal access management will never be available as productivity of coastal waters. This water land coor- a general ocean management tool. However, if dination is contained in the California Coastal Act coastal policy cannot be used as a positive ocean (SB 1277) of 1976. management tool (or ocean management as a positive a. Water Policy Relative to Commercial Fishing shoreland management tool), at least there must be some increased degree of coordination and coopera- Uses of the marine environment shall be carried tion. 63 C. Impact Analysis as an Ocean Management Tool Each agency submitting a major domestic initiative must include its own urban and com- Section 102(2)(c) of the National Environmental munity impact analysis. DPS (Domestic Policy Policy Act requires that each Federal agency Staff) and OMB (Office of Management and include in every recommendation or report Budget) will review these submissions and will ensure that any anti-urban impacts of proposed on proposals for ... major federal 'actions 4 significantly affecting the quality of the human Federal policies will be brought to my attention. environment a detailed statement by the respon- One of the particular attractions of this tool is that sible official on - it can be utilized separately from other management (i) the environmental impact of the proposed functions or programs. Thus, CEQ and the Environ- action, mental Protection Agency can monitor Section 102 environmental impact statements(EIS's) without (ii) any adverse environmental effects which having to have legislative authority over activities cannot be avoided should the proposal be which will create those impacts. implemented, A separate function could be established, which (iii) alternatives to the proposed action, does not now fully exist, to specifically evaluate the impact of proposed policies and activities upon (iv) the relationship between local short-term national ocean programs, policies, principles, and in- uses of man's environment and the main- terests. While ultimately it would make no sense to tenance and enhancement of long-term collect such information, except as an academic exer- productivity, and cise, unless it were to be used, the very act of assessing (v) any irreversible and irretrievable commit- impacts, both short-range and cumulative/long- ments of resources which would be in- range could have significant influence upon how volved in the proposed action should it be future ocean-related activities and programs were implemented. designed, as the National Environmental Policy Act The purpose of this provision, which has recently demonstrated. been expanded through administrative ruling of CEQ If a certain set of standards or policies were adop- to require a justification of major adverse impact, is ted, a mandatory impact assessment, such as is incor- to provide a tool for achieving compliance with porated in the National Urban Policy Program or the declared national policy of minimizing adverse en- Engle Act, could be used to assure consistency with vironmental impacts. However, this same impact those standards or policies. This, in fact, is the ap- assessment device could be used as a tool to enforce proach which Texas has chosen to use in the manage- or monitor compliance with any policy or principle, ment of its coastal zone, having rejected the idea of a including those which might be included in national comprehensive planning approach and focussing on ocean management programs. permitted impacts rather than upon permitted uses.' Consider, for example, the impact statement 1. NEPA and the oceans. The National Environ- required by the Engle Act for OCS lands that are mental Policy Ac .t (NEPA) already requires an proposed for withdrawal from minerals leasing for environmental impact statement for any significant national security purposes. An application to Con- Federal action. It is not clear bow far outward in the gress for withdrawal of public OCS lands for national ocean NEPA might apply, but Section 102 EIS's have security purposes must include a statement of-, been prepared on EPA's ocean dumping regulations Whether, and if so, to what extent, the and the designation of a site for the incineration of proposed use will affect continuing full operation chemical wastes. There have been ocean-related EIS's of the public land lawi and Federal regulations carried out for such activities as LOS, deep seabed relating to conservation, utilization, and mining, INDFC, fishery negotiations with Japan, the development of mineral resources .... (Sec. tuna/porpoise issue. 3(7) What constitutes an "adequate" environmental The Fish and Wildlife Coordination Act is another impact statement for any ocean-related activity? How example of the use of the impact assessment device, many of the vast number of possible parameters requiring that every major Federal water project be should be considered? How will cumulative impacts reviewed for its possible impacts upon fish or wildlife be calculated? If information is not available, it is the values. Any one of these programs could be modified responsibility of the activity sponsor to develop that to provide a review of the potential impacts of a information, or is that a Federal Governmental proposed policy, program, or activity upon a function? What constitutes a "significant impact" in national ocean management program. the oceans? Which changes should be avoided, and On March 27, 1978, in a Message to Congress on a Weekly Compilation of Presidential Documents, April 3, 1978. National Urban Policy, President Carter outlined. a Office of Coastal Zone Management, Department of Com- new program which could be adopted for use in merce, Texas Coastal Zone Management Program Environmen- ocean management. tal Impact Statement, 1978. 64 which are permissible? Are rates of change impor- Perhaps the most important question now is: when tant? What about seasonal shifts in ocean system sen- are the costs resulting from our ignorance of the sitivities? cumulative impacts of ocean-related policies, There is considerable potential in the National En- programs, and activities greater than the costs in- vironmental Policy Act with reference to iving volved in attempting to establish a workable OIA resources management and ocean management per capability? While it is not clear that we have reached se, but there remain many questions which need to be this threshold for all issues or all parts of the ocean, it answered. would appear that some system may be needed now for heavily used areas such as Georges Bank and the 2. Marine Protection, Research, and Sanctuaries New York Bight. Act. One of the potentially most important provi- sions of Federal ocean-related legislation is Section D. Ocean Zoning 202 of the Marine Protection, Research, and Sanctuaries Act of 1972. At the present time the United States makes exten- The Secretary of Commerce, in consultation sive use of zoning in its ocean programs. with other appropriate Federal departments, There are management or jurisdictional zones agencies, and instrumentalities shall ... initiate a or regimes representing how government is comprehensive and continuing program of structured. Thus, there is the coastal zone, the research with respect to the possible long-range OCS lands zone, the fishery conservation and effects of pollution, over fishing, and man- management zone, the contiguous zone. induced changes of ocean ecosystems. In carrying There are activity zones, either to protect a par- out such research, the Secretary of Commerce ticular activity or sort out several activities. shall take into account such factors as existing Thus, there are military activity zones, and proposed international policies affecting navigational fairway zones, ocean dumping oceanic problems, economic considerations in- zones, oil rig safety zones, deepwater port volved in both the protection and the use of the safety zones. oceans, possible alternatives to existing There are also resource or "ocean zones" programs, and ways in which the health of the directed at protecting the resource itself. oceans may best be preserved for the benefit of Several states have established some type of succeeding generations of mankind. (Emphasis ocean sanctuary system, protecting breeding added.) grounds, unique geologic formations, or sen- It is not clear that Congress intended the kind of sitive estuaries. The Federal Marine Sanctuary research effort which this Section appears to call for. Program is also based on this concept. There is a danger of reading into these provisions There are also natural zones created by tide, more than was intended. However, aside from the im- current, nutrient cycles, migratory routes, thermal portant issue of the intent of this provision, the needs patterns, and geologic structures, and there are infor- are real. If it is in the national interest to protect the mal patterns or zones of human activity, often reflec- oceans, what constraints must be placed upon human ting the natural patterns and cycles. activities to achieve that protection? And, if the 1. Existing zones. Existing zones of resource con- promotion or enhancement of certain activities is in centration, ocean dynamics, and human activities the national interest, what protection must be affor- represent a series of constraints upon and oppor- ded those activities? What are permissible uses? What tunities for future ocean actions. By identifying these should have priority? Certainly the exact type and patterns or zones, it may be possible to "fit" new ac- scope of information called for in this legislation tivities into existing patterns with minimal disrup- would provide many of these answers. tion; to avoid "inappropriate" locations for a par- The amount of time, money, and effort involved in ticular type of activity; to enhance an activity by deriving such answers is not easily calculated, but it placing it within a set of uses and dynamics which are can be estimated to cost considerably more than is compatible and supportive of it. currently being expended, and perhaps more than the This kind of work for ocean management is not United States is willing or able to expend. But this really being done at the present time. There is a great program and the idea of impact analysis as an ocean expenditure of both public and private money to do management tool warrant further consideration. "inventory" work@, especially as part of the Federal If the nation's ability to undertake ocean impact EIS process and state coastal program development. analysis (OIA) were improved, the cost of security But often this inventory work has no focus, no clear permits, litigation, or clearing up after mistakes, purpose, no directed sense of what information might might be reduced. Ultimately, it should expand our be of use and in what form it should be collected and ability to use the oceans, by giving us the means of stored. Focussing upon the patterns and the designing facilities and activities so that they fit dynamics of change could lead to the establishment within the complex patterns of ocean dynamics and of a reactive inventory of information useful for a human ocean uses rather than conflict with them. wide variety of purposes. 65 In the siting of any new activity there is a choice, and welfare, including economic, esthetic and although not always explicit, of whether or not to dis- recreational values; rupt existing patterns of the natural world and of 3. The effect of such dumping on fisheries human activity. It is no longer possible to look at the ocean as empty space, and this choice is becoming in resources, plankton, fish, shellfish, wildlife, creasingly explicit, formal, contentious, and difficult. shorelines and beaches; It is our belief that the point will soon be reached 4. The effect of such dumping on marine when it will not only be useful but also essential to ecosystems particularly with respect to: (a) the develop a clear understanding of the present ocean transfer, concentration and dispersion of such patterns or zones and the changing dynamics with material and its by-products through biological, which they interact. It is only when these natural and physical, and chemical processes; and (b) potential human zones are clearly denoted and described that changes in marine ecosystem diversity, productivity, decisions on new uses can be thoughtfully and and stability; reasonably made. These decisions cannot be under- 5. The persistence and permanence of the effects of taken without a spatial and temporal identification of the dumping; zones and patterns and dynamics. To ignore these zones is to risk fish kills, ship collisions, storm 6. The effect of dumping particular volumes and damage, pollution, financial loss, and the inadvertent concentrations of such materials; loss of opportunities. 7. Appropriate locations and methods of disposal 2. Establishing new zones. "Ocean management", or recycling, including land-based alternatives and as described in this report, includes many elements the probable impact of requiring use of such and has changed in both purpose and scope since the alternative locations or methods upon considerations 1930's when the Federal Government first considered affecting the public interest; the idea. But one aspect of ocean management is an attempt to establish, enhance, or protect a specific ac- 8. The effect of alternative uses of oceans, such as tivity or mixture of activities in time and space within scientific study, fishing and other living resource some portion of the ocean. The activity (or activities) qxploitation, and non-living resource exploitation, could be whale breeding, oil extraction, ship transit, and weapons testing, or trawl fishing. Quite often in at- 9. In desigrtating recommended sites, the Ad- tempting this, a "zone" is established, if only concep- ministrator shall utilize, wherever feasible, locations tually within the mind of those involved in the beyond the edge of the continental shelf.6 management task. 3. Enforcement of zones. To establish an ocean In establishing any zone, there are some basic ques- zone is to create rules, standards, objectives, and an tions to be asked. These include where the zone enforcement burden which depends upon the pur- should be; whether it involves the air, the surface pose, location, and degree of public acceptance of the waters, the water column, the seabed, the subsoil, zone. Obviously, a coral reef at the bottom of the shoreland; how large it should be; whether it should ocean or an ocean dump site that consists of no more be fixed in space; whether it should change its charac- than designations of longitude and latitude requires a teristics over time; what type of control and enforce- different degree of enforcement perhaps even a dif- ment should take place within this zone; how much ferent concept of enforcemen@, than' would land- needs to be known about this zone; what activities based zones, which are more visible, more accessable, should be allowed, encouraged, prohibited, con- more precisely defined, and which are not as fluid in trolled. time or space as ocean zones. There are several existing, formal processes used by a. Legal complexity. Consider for example that the Federal Government to answer these questions regulations establish a marine sanctuary through although those processes are not always considered which no U.S. oil tankers will be allowed to transit, as, or thought of, in terms of establishing zones. or a deepwater port safety zone in which no commer- Establishing dredge spoil disposal sites; selling OCS cial fishing vessels will be allowed. Suppose that con- oil leases; and constructing an intake pipe for power trary to these regulations, a prohibited vessel enters plant cooling water are all examples of setting up a and then leaves the restricted area. Does the enfor- zone within which a special degree of control is exer- cing agency have the authority to pursue and detain ted over ocean activities to enhance a primary value the vessel even though it is no longer within the or within which a particular activity is@specially con- restricted area? trolled and regulated. In "The Legal Background to North Sea Oil and An example is the criteria used by EPA in Gas Development," Patricia W. Birnie discusses this evaluating permit applications for ocean dumping: problem as it relates to United Kingdom oil rig safety 1. The need for the proposed dumping; Environmental Protection Agency, "Ocean Dumping Final Revision of Regulations and Criteria," Federal Register, 2. The effect of such dumping on human health January 11, 107, Section 227. 66 zones in the North Sea and suggests that violations of multinational or international agreements, especially special ocean zones may be difficult to enforce if it is essential that all regulations be fully complied beyond the territorial sea. This involves an extension with. Second, the authority to zone, if "zoning" of national ocean authority that may not presently be includes the authority to enforce that zone, is not recognized by international law. There are, of course, clear. If the UNCLOS negotiations are ever suc- some existing principles of international law and cessful in establishing new international ocean practice that relate to this issue, for example, Article management regimes and regulations, this authority, 23 Convention on the High Seas, and Article I I I of especially within a two-hundred mile economic zone, the Informal Composite Negotiating Text (LOS Con- may be clarified. Third, if an ocean zone applies only ference). to United States citizens and to United States vessels, Enforcement of coastal state laws for foreign it may not be worth establishing. There is extensive vessels on the high seas outside the safety zones merchant vessel traffic in ocean space adjacent to the (of oil rigs) for breaches of the safety zones is, in United States, and even if foreign fishing within two view of the increasing frequency of such offenses, hundred miles is severely restricted or eliminated, now needing consideration. Such enforcement tanker and cargo traffic will continue if not increase. would depend on whether the right to Hot Pur- b. Political complexity. In July of 1977, new In- suit, i.e., the right to pursue and arrest a vessel on ternational Regulations for Preventing Collisions at the high seas for offenses committed within Sea (COLREGS) went into effect for U.S. vessels. territorial waters, also extends to offenses com- These regulations were formulated by the Inter- mitted in zones of limited coastal state jurisdic- Governmental Maritime Consultative Organization tion. The area of safety zones was fixed in 1958 (IMCO) and contain, as Rule 10, the provision that: before the advent of super-tankers, and may need A vessel engaged in fishing shall not impede review. Problems also arise where zones overlap around complexes of installations, and foreign the passage of any vessel following a traffic lane shipping is prohibited from entering large areas and that vessel shall so far as practicable avoid of the high seas. Arrest of offenders against the anchoring in a traffic separation scheme or in safety of the installations, and against other laws areas near its termination. and regulations, once the offender is outside the ... a vessel engaged in fishing shall not impede safety zone also presents problems in in- the passage of any vessel following a traffic lane. ternational law. The Traffic Separation Scheme (TSS) established for This is clearly ... an area in which harmoniza- the New York Bight area includes six sea lanes, three tion of laws is necessary ... because there may separation lanes, two free lanes, and a precautionary be attempts to enforce these laws against foreign zone (see Figure 7). This vessel traffic management nations and vessels on the high seas.' The marine sanctuaries provisions of the MPRSA include a very clear statement that any restrictions :)NG associated with a marine sanctuary will apply only to citizens of the United States, and not to foreign vessels. This provision was included for the very reasons alluded to by Birnie. And the Deepwater Port AMBROSE TOWER Act appears to contain the same type of declaration 0 by stating that the Department of State will work out PRECAUTIONARY AREA any necessary restrictions upon foreign vessels with those nations through principles of international law. At this writing, the Department of State has con- cluded Deepwater Port Agreements with Norway, Denmark, and Sweden. The agreements state that vessels registered in, or flying the flag of signatories and the personnel aboard such vessels, are subject to concurrent jurisdiction by the U.S. while in the safety zone of U.S. deepwater ports. Such agreements have been sought with other nations as well. This suggests three points. First, that the establish- ment of any zone within ocean space requires a rather complex networking of public and private, national and international interests, and may even require 7 Patricia W-9hr-nie, "The Legal Background to North Sea Oil and Gas," Political Implications of the North Sea Oil and Gas (Universitetisforiaget and TPC Science and Technology Press, Figure 7: NEW YORK BIGHT TRAFFIC SEPARATION Ltd., 1975), p. 28. SCHEME (TSS) 67 system has been established to coordinate a very large they, in turn, treat our fishing vessels within their amount of commercial vessel traffic using the New waters. York-New Jersey port area. In addition to this com- mercial traffic, it is estimated that there are between While there have been few problems with viola- 75,000 and 100,000 private boats, 100 party boats tions of the zone by foreign vessels, American fisher- (fishing), and between 300 and 400 charter boats that men have taken exception to instances in which fish the waters of the New York Bight.' foreign policy considerations have taken precedence over the punishment of clear violations of fishery The six traffic lanes incorporate several popular regulations. The same dynamics can be expected to fishing areas, and there have been increasing conflicts exist in other types of zones, such as a "marine between fishermen and merchant vessels, including at sanctuary." least one near collision. In response to requests to take action on this situation, the Coast Guard ruled 5. Communicating the existence of ocean zones. The in February of 1978, that Rule 10 of the COLREGS present means by which the growing number of ocean meant that no fishing would be allowed within the zones are made known to ocean users is through the traffic lanes. distribution of nautical charts and the issuance of various bulletins, such as Notice to Mariners. But the However, to commercial and recreational fishing growing number of regulations associated with ocean interests this was an unacceptable restriction on their management in general suggests the need for ad- multimillion dollar industry. Congressional ditional efforts, devices, and concepts. assistance was utilized in obtaining a Coast Guard review of its ruling, and in March of 1978 a deter- Charts and maps may need to be redesigned, on an mination was made that fishing would be allowed international uniform basis, to clearly communicate the broad and growing spectrum of regulations, but that anchoring would be prohibited and that fishing vessels must follow the same rules and direc- policies, and activities located within ocean space. It tions of travel as merchant vessels. is probable that the United States is the leading na- tion in the world regarding ocean management, and The degree to which any ocean management con- the problem of intelligently communicating a broad ceptual approach or tool can be successfully applied variety of ocean management details so that they are is constrained by factors such as which interest understood and followed is a challenge and a burden groups would be displaced or negatively impacted. which may be uniquely ours at the present time. As (Ocean management is a political process and any more precision is required of those who use the new management scheme must be acceptable within oceans, it may not be sufficient to place the burden of that process.) It is not clear what types and levels of compliance upon ocean users. It is probably impossi- control are at this time politically acceptable. ble for anyone to know all of the rules, policies, and The establishment of exclusive use areas, or areas activities taking place within some heavily where certain activities have priority, may be the best -nianaged" ocean space. Those who wish to design way of achieving some management objectives for and control how ocean space and ocean resources certain locations. But if the area involved is suscepti- will be used have the task of figuring out how to let ble to use for other purposes, the optimum may not the great variety and number of ocean users know be possible. Just as the Coast Guard is unable to what the control system is. exclude fishing boats from vessel traffic lanes, the This problem of communicating regulations, Secretary of Commerce may be unable to exclude oil especially as they apply to special areas or "zones," is rigs from marine sanctuaries. These constraints, be of particular importance for the state coastal zone they political, economic, or technical, help to define management programs, and is an issue that has not what ocean management is and can be. received sufficient attention. Within the coastal zone, 4. Ocean zones and foreign policy. Additional many users are unaccustomed to the Notice to complexities arise in the use of ocean management Mariners, the publications of the Defense Mapping tools such as zoning when they apply to foreign Institute, or, in many instances, even basic "rules of nationals or to foreign vessels. The type of problem the road." The Coastal Zone Management Act calls that could evolve is indicated in initial enforcement for the establishment of priorities of use, permitted efforts under the Fishery Conservation and Manage- use designations, areas of particular concern, ment Act, with reference to compliance by foreign management systems, etc. There is a very real ques- fishing vessels with the 200 mile management system tion of how those affected by this evolving web of that Act established. restrictions and principles are supposed to know ab- out it. The decision to act or not to act on a violation of This is a general problem that our society faces as the restrictions within this zone by a foreign vessel more and more regulations are created, but it seems has been made by the Department of State. And State especially difficult in the coastal zone or the oceans correctly perceives that how we treat the vessels of beyond for those who are accustomed to treating foreign nations might have an impact far beyond how the shoreline and the oceans as a free good, available Ibid. to all people for all purposes. The majority of 68 recreational fishermen, boat owners, and shoreland There are a variety of ocean zones and a variety of property owners are not accustomed to ocean regula- procedures, criteria and authorities for their tions - a fishing license is usually not required for establishment. The Coastal Zone Management Act recreational finfishing in the oceans, and a driver's and the 1977 Presidential directive to give increased license is not required in order to operate a private consideration to the establishment of marine boat. sanctuaries indicate that this situation will continue For some management purposes the shoreline can to grow more complex, and a review seems to be be literally marked with signs. Navigational zones are needed. The Congress has involved the U.S. in some marked with buoys, flashing lights, and often printed ocean zoning decisions and removed it from others. signs, as well as being designated on charts. But for When does the Government participate and by what those rules, regulations, and ocean areas where this is method should it do so? When should the President not possible or practical, how are the rules to be be involved? Should the National Security Council be made clear? This is particularly difficult because explicitly included? Should all ocean zoning be done historically there have been few, if any, rules here? under a uniform set of procedures and criteria which follows from a careful inquiry to assure that a zone is needed and that, as proposed, it will achieve its stated 6. Who should establish zones? The Deepwater objectives while minimizing administrative, environ- Port Act contains a detailed process for the designa- mental, or functional problems? It also seems ap- tion of a special ocean zone, and as discussed propriate to reexamine some of the previously previously, this process appears to be adequate. By established processes and see if they might not be the procedure contained in the Act, the Secretary of coordinated and improved. Within the territorial sea, Transportation establishes a Deepwater Port Zone, should designations of "areas of particular concern" after having communicated with numerous interest require a special approved process separate from the groups. Any regulations affecting foreign vessels coastal program approval? What should be the ap- must be worked out with the Department of State, proval process for estuarine sanctuaries? What thus insuring the inclusion of foreign policy should be the decision process and criteria for considerations. Thus, it is an administrative decision. establishment of OCS navigational fairways, and of port vessel traffic safety schemes? There seems to be Defense area withdrawals from OCS leasing, as an identifiable and important set of issues associated specified in the Outer Continental Shelf Lands Act of with the establishment of some portion of ocean 1953, can be approved by the Secretary of the Interior space for special management attention. These or by the President and both have done so. In the late "zones" are management tools and are currently 1950's, Congress asserted authority over such being used by many independent functional withdrawals through the passage of the Engle Act programs in separate ocean management regimes. As which, in effect, requires Congressional approval of a result of the Coastal Zone Management Act there any withdrawals or restrictions for military purposes, could be as many as thirty separate zoning since it ap plied to areas 5,000 acres or larger and the procedures and sets of criteria for the territorial sea, leasing unit used by the Bureau of Land Management and there may be nearly as many as that at the was 5,700 acres. However, as described elsewhere in Federal level for the ocean space beyond. this report, Congress has encouraged the Deparlment of Defense to work these arrangements out infor- Determining the questions that have to be asked mally with the oil industry and Interior, thus turning prior to establishing an ocean zone and identifying these into administrative decisions. which interest groups, policies, and agencies should be included in an ocean zone decision would seem to The Marine Sanctuaries program requires the ap- deserve further attention. proval of the President. However, amendments proposed in 1978 would require Congressional ap- 111. Principles for Ocean Management proval, by both the House and the Senate, for the designation of a marine sanctury of more than 1,000 Guidelines or principles are tools which can nautical square miles, and the Senate committee provide criteria for assigning priorities, determining report of this legislation contains a strong declaration public expenditures, and resolving conflicts. of Congressional interest in any designation. The Outer Continental Shelf, as a "national A. Multiple Use management zone," was first established by Presiden- Congress has provided a definition of multiple use tial declaration, as was the concept of a fishery con- in the Multiple Use and Sustained Yield Act of 1960 servation zone. Both declarations were made by (Forest Service) and the Classification and Multiple President Truman. Presidential authority was also Use Act of 1964 (Bureau of Land Management). Both used by Theodore Roosevelt to establish the acts define multiple use as: Northwestern Hawaiian Island Wildlife Preserve, in the early 1900's, and by Franklin D. Roosevelt to The management of all the various renewable establish a 200-mile national ocean defense zone in surface resources of the national forests so that 1939. they are utilized in the combination that will best 69 meet the needs of the American people; making discussed next, that of sustained,-. yield.,,-- -are -,not- the most judicious use of land for some or all of necessarily- in-va-fid-, but they do not necessarily reflect these resources or related services over areas all of the present national interests in natural large enough to provide sufficient latitude for resources management. Certain areas may have periodic adjustments in use to conform to inherent carrying capabilities or be interconnected in changing needs and conditions; that some land bio-geo-chemical cycles or energy flows. Thus, multi- will be used for less than all of the resources; and ple use tends to ignore both the nature of the pie harmonious and coordinated management of the being sliced and the nature of the activities seeking various resources, each with each other, without accommodation. Not all activities have the same im- impairment of the productivity of the land, with pact. Not all activities have equal need for coastal or consideration being given to the relative values of ocean access, and not all activities have an equal the various resources, and not necessarily the footing in the national interest. combination of uses that will give the greatest dollar return or the greatest unit output. These acts then go on to specify various products or B. Sustained Yield and Optimum Yield services for which the lands are to be administered or managed, including things such as outdoor recrea- As defined in the legislation cited above, sustained tion, timber production, watershed protection, fish yield means and wildlife, wilderness or mineral production! the achievement and maintenance in per- Multiple use can be seen as the opposite of petuity of a high level annual or regular periodic exclusive, single-purpose use (such as special defense output of the various renewable resources of the areas in the oceans). Primary-use areas, e.g., the way national forest without impairment of the marine sanctuaries are currently defined, in which a productivity of the land. primary use is designated for an area and other uses are allowed so long as they do not clash with that In 1976, Congress modified this concept to include primary use, represent a middle ground between the social as well as biological factors, referring in the other two approaches. Fishery Conservation and Management Act to Multiple use of the oceans is presently a definition optimum yield. of the status quo as much as a management principle, Fishery resources are finite but renewable. If and in most instances, it is exceedingly difficult to placed under sound management before over- gain political acceptance for its.opposite: exclusive fishing has caused irreversible effects, the use. If this principle is formally applied to ocean con- fisheries can be conserved and maintained so as trol, it has certain limitations as an effective manage- to provide optimum yields on a continuing basis. ment tool. (Sec. 2(a)(5)) First, multiple use assumes, implies, or requires As defined in the Act, optimum yield is a that there are no clearcut priorities among national somewhat curious and imprecise principle upon interests, and allocative decisions must be made by which to base a national ocean fishing resources those attempting to implement the principle. The management program. principle itself provides little real guidance as to how The term 'optimum' with respect to the yield conflicts should be resolved or priorities assigned. from a fishery, means the amount of fish - Second, it requires a very large resource base so that conflicting uses may be accommodated by allowing (a) which will provide the greatest overall each activity to have its own area when uses are not benefit to the nation, with particular compatible. As this principle was applied to national reference to food production and forest lands and other public lands during the 1960's, recreational opportunities; and Congress determined a specific set of key interests (b) which is prescribed as such on the basis of that would somehow be accommodated and then left the maximum substainable yield from such it up to the administrators of the program to imple- fishery, as modified by any relevant ment the idea. economic, social, or ecological factor. But perhaps the most important limitation of the (Emphasis added.) (Sec. 3(18)) concept is that it was formulated and incorporated As might be expected, both the National Marine' into American natural resources policies prior to the Fisheries Service and the regional fishery managemnt emergence of a national awareness of and concern councils have had problems defining what "optimum about'invironmental impacts and ecological protec- yield" is for various commerical and recreational tion. Multiple use and its companion principle to be fisheries. One danger with virtually all resource management principles is that they often become Public Land Law Review Commission, Federal Public Land meaningless, providing no specific guidance, allowing Laws and Policies Relating to Multiple Use of Public Lands, any pattern of use. As a result of the inclusion of (Washington, D.C., 1970). modifiers 'in subsection b, any allocative scheme 70 produced by the administrators of the Act could be been suggested as an objective method by which justified. allocation decisions can be made. It is not unusual for regional council members to As generally used, states establish as policy which be reminded by fishermen that fishing represents a activities or facilities will have priority of access to way of life for entire communities and that to limit coastal resources and coastal space on the basis of catches would have a severe social impact. These are, how "dependent" those activities or facilities are under the Act's definition of optimum yield, upon a coastal zone location. If something does not legitimate and important factors that should have to be in the coastal zone, it will either be influence the catch levels allowed. And if, in some precluded or assigned a lower priority. While this has instances, the fishermen can be suspected of being some merit, there are also certain problems: disingenous, there are very real social and economic 1. There are different kinds of dependency, such as impacts associated with fish catch allocations. But economic or financial dependency. A factory may not somehow fisheries management is not the same as have an inherent need to be on, in or near t he water, zoning a community, and the consequences of gran- but may take advantage of a coastal location to ting a variance from the regulations, which is what reduce shipping costs. And while it is difficult with the optimum yield principle amounts to, may not today's shoreland prices to fully appreciate the fact, it work for living resources. was often the case in the past that a coastal location was the least expensive site that could be obtained, Another basic problem with either sustained yield even though proximity to the shore or water was or optimum yield, as discussed in the Chapter Three otherwise of no importance. Without further section on fisheries management, is that these princi- clarification as to what kind of dependency is meant, ples tend to focus upon individual populations of fin- the principle is of limited use in making choices fish and shellfish, as if these populations were totally through some objective standard. independent of each other and of other biological and chemical parameters. Yet, if the proposed Antarctic 2. Not all uses may be "dependent" upon a coastal Living Resources Management Regime establishes a or ocean location, but most would benefit from it, if quota for the commercial harvesting of Antarctic only to provide amenities for the people associated krill, on a sustained yield or optimum yield basis, with it, e.g., a nice view. While the merits of their dq- given present krill population levels, it is also a deci- mands may be less compelling than activities which sion that populations of certain whales, seals and cannot take place without a coastal or ocean setting, these non-dependent uses nonetheless are those of the, perhaps other living resources will be smaller in the public for whom the oceans are supposed to be future because of the interconnection through complex and not fully understood food chains. managed. There is no dependency involved, yet residential and recreational housing remains one of Ultimately, sustained yield and multiple use the most popular uses of the coast, as evidenced by provide little useful guidance for resource manage- the many coastal development in areas highly ment, and may even fail to reflect fully the various vulnerable to hurricane and storm damage. Given national interests which have emerged since these that situation, dependency may not be a politically concepts were first articulated. In recognition of the acceptable criterion. limitations of these principles, Congress, his man- 3. To allocate ocean resources on the basis of dated the formulation of new principles for the dependency is to reward and enshroud with management of public lands, in the Federal Land legitimacy those activities which in the past have Policy and Management Act of 1976 (P.L. 94-579). presumed to utilize ocean space and ocean resources. The formulation is now taking place and should be It does not, in fact, follow that just because an ac- coordinated with national considerations of ocean tivity cannot take place if it is denied access to the management. oceans that access should be granted. As a part of a C. Dependency coastal zone management effort, the dependency concept could be viewed by some as arbitrary and Many. states have attempted some degree of plan- capricious. ning and management for their shorelands and the 4. Dependency as a management principle tends to adjacent territorial sea, either as a result of the ignore the whole question of social choices and Coastal Zone Management Act of 1972 or on their changing public priorities. Dependency might be own initiative. As a result of this effort, they have most effective in the absence of public programs and been faced with the need to develop principles for.the priorities. allocation of ocean space and ocean resources, i.e., 5. Dependency, unless combined with other some method of sorting out conflicting and growing management principles, tends to exclude considera- numbers of claims and demands. tion of the capacity of the oceans to accommodate ac- An often-discussed principle for coastal planning is tivities. It either downplays or ignores susceptibility that of dependency. As with sustained yield, op- to damage and concepts such as suitability. It tends timum yield, or multiple use, dependency is to favor the demand side of resources management at ultimately a somewhat elusive principle which has the expense of the resource base. 71 D. Suitability/Capability At that point in the process, several concepts or definitions of suitability and of capability were con- A modification or expansion of the concept of sidered, and a seven-parameter system chosen, with sustained yield is the principle of allocating ocean emphasis on existing uses and natural systems sen- space and ocean resources on the basis of "fit" bet- sitivities as a measure of future suitability. The ween the proposed activity and the existing web of overlay maps were then used in combination. with natural systems and human activities. these parameters and new maps were created that To use this principle for ocean management, it is showed a four-area system indicating a good-to-bad first necessary to accept a basic premise that there continuum of use capability. Class I areas can sup- may be limits to the capacity of various ocean port nearly all water uses that are currently systems to support or withstand the impacts of technically feasible, and Class IV areas can only sup- human activities, and that it is reasonable to allocate port a limited set of activities such as aquaculture, ocean space and ocean resources on the basis of the commercial fishing and lobstering, recreational degree to which a given activity or facility "fits" with fishing and boating, research and education, swim- or is compatible with these natural limitations. To ming, and esthetic enjoyment. It is interesting to note some degree this principle is similar to sustainedyield. that New Hampshire determined that there were no However, suitabilty/capability places more emphasis Class I waters within its coastal zone, the first loca- upon finite resources than renewable resources and tions for high-impact activities being fourteen miles upon resource protection rather than resource from shore." production. The focus is upon taking any user de- Texas has also chosen a version of mands and seeing where and if they can be accom- suitability/capability for the management of its modated without diminishing the existing ocean coastal zone. In general, it appears to be an impor- system. This could be expanded to include deter- tant approach to ocean decisions, and it is generally mining the sensitivities of various human activities what is implied in the environmental review process that are to be encouraged and protected and then mandated by the Environmental Protection Agency. using these sensitivities as further criteria to decide However, the limitations of the natural world have what should go where, It is a more general form of rarely been seen as the standard by which man should key value management described previously. An conduct his affairs, and wide-spread use of this prin- example is given below. ciple would perhaps require significant changes in our political, economic, and even legal principles which now tend to recognize human rights and in- New Hampshire terests more than the capacity of natural systems as a As part of its coastal zone management effort, the measure of suitability. Also, a proper job of capability analysis requires the expenditure of enor- state of New Hampshire developed a methodology of mous amounts of time and money. However, in- Coastal Zone Water Use Capability Analysis (1976) creasingly, the necessary research for such analysis is which represents an interesting, but not completely being done and is mandated in Title 11 of the Marine proven, use of this management principle. One of the Protection, Research, and Sanctuaries Act. important observations made in the report which describes this methodology is that a full development A more basic limitation of this principle is that .of this methodology would require "years of effort" natural "capability" is to some extent a subjective and a great deal of money. measure, based upon a judgment as to when induced rates, degrees, or types of change are unacceptable. An initial inventory was taken of coastal Moving from such assessments to a determination of ecosystems, marine and estuarine species, offshore suitability requires another major subjective judg- bottom sediments, and existing and estimated de- ment. While the principle can be used to good effect, mands for ocean use. Several maps were then there is a certain questionable underlying assumption prepared, using an overlay system similar to several within it that there is an inherent "best" pattern of evaluatory systems used in land use planning. The use which can be revealed through this process. Un- maps included: fortunately, the national interest is not so easily 1. Spawning areas for major ocean species, defined or accommodated. 2. Offshore fishing areas of importance to the E. Conclusions state, 3. Clamming and oystering areas, The reliance upon broad,principles, such as "multi- ple use," tends to avoid most of the important ques- 4. Existing offshore activity areas, and tions involved in ocean management and might result 5. Offshore sand and gravel deposits. in a less-structured and less-viable determination by program administrators as to how the ocean will ac- The analysis determined several activities likely to tually be allocated. These principles have the sound experience significant increase as well as others that might take place. 10 Arm-strong and Ryner, pp. 216-222. 72 and appearance of substance yet a sufficient degree of functions, nor is it clear that this should be fully a ambiguity to accommodate virtually all activities. Federal responsibility. Many state and local govern- The most popular principles for ocean manage- ments have harbor patrols, marine sheriff depart- ment would be to insure access for all human ac- ments, and marine safety teams. Marine traffic con- tivities, maximize human enjoyment, and insure the trol could be accomplished at the state level through continued viability and richness of natural ocean coastal management programs with local and state systems. However, experience indicates that while enforcement working in partnership with the Coast Guard and other Federal agencies. such principles might be quite successful politically, they would fail to secure either long-range protection As more Federal ocean programs exert control of ocean systems or of human interests. As we are over ocean space, some degree of coordination of learning in our coastal zone, natural systems cannot traffic control may be necessary, and thus this type of be all things to all people. management need not be confined to the control of The issuance of national principles for ocean use private ocean users, such as oil companies or marine can be a form of management, by which the Federal vessel operators. Establishing vessel traffic control Government attempts to influence ocean activities. sea lanes, marine sanctuaries, dredge disposal sites, But since most, if not all, principles suffer from the deepwater port sites, OCS lands leasing sites, floating limitations of ambiguity and subjectivity, the nation nuclear power plants, and national security project in some instance, may need to make specific choices areas may require increased governmental effort, and as to what should or should not occur. Such choices the assignment of a coordinating authority or respon- would also imply an increased degree of control to sibility to some unit of government. An evaluation of enforce those choices. When there are clear priorities space and atmospheric management programs might or needs, then policies and plans may be required. provide useful concepts, techniques, and lessons. In terms of international traffic implications, it may be IV. Types of Ocean Management useful to consider the role of IMCO because of its function as an existing international body that acts as The tools that could be used for ocean manage- an information exchange forum (including standards) ment, or the principles that might be appropriate, de- where concepts of ocean traffic control can be pend, in part, upon the type of control being at- discussed. tempted. In using governmental authority and power to control the ocean and its resources, there is a range B. Ocean Management of Special Values of objectives and types of control that could be used. Chapter Three described two programs, the Fishery Chapter Four includes a discussion of national in- Conservation and Management Act and the terests and suggests that there may be some national Deepwater Port Act, which focus upon particular ocean values or uses which warrant special Federal types of control effort, including "traffic control," attention, such as national security, protection of management of special values or interest, area specific marine species, or the maintenance of management, and "comprehensive" management. navigational capacity. Federal ocean management would involve the identification of certain key values A. Traffic Control or activities that it wants to protect or enhance. "Management" might then consist of regulating One of the activities which the Federal Govern- ocean activities to secure consistency with these ment currently undertakes is literally to direct vessel preferred activities and values, and/or efforts to en- traffic in crowded sea lanes, such as the New York courage or promote certain types of ocean use that Bight Vessel Traffic Control System. As more ac- might not otherwise occur. Thus the Federal Govern- tivities take place within ocean space, the need for ment might not wish to take on control of all ac- keeping activities out of each others' way will become tivities and all ocean dynamics, but it might wish to increasingly important, and increasingly difficult. control a limited nuniber of specified national Attempting to maintain order and safety implies interests. ocean space management, perhaps with the establish- 1. Military testing sites. At the present time, the ment of zones and rules of usage. The costs, legal Department of Defense operates two major national complexities and political difficulties in such activity missile test ranges, one in the Gulf of Mexico and one are probably significant. One of the questions which in the Channel Island area of the Pacific Ocean off arises when considering such programs is which level the coast of California. With expansion of offshore of government should be responsible. The U.S. Coast oil and gas leasing, as well as the development of Guard has been given most of the enforcement or deepwater ports, marine sanctuaries, floating power police functions related to Federal ocean programs. plants, pipelines, and other ocean activities, there But considering the amount of control that may be may be problems in keeping these ranges open. In or- needed to maintain safety and order in future, more der to protect these ranges the Department of crowded ocean systems, thought might be given to Defense has, in the past, found it necessary to inter- restructuring such programs. It is not clear that a vene in the OCS leasing process and to attempt to single agency could accomplish these traffic control guide other Federal decisions so as not to allow 73 development of these ranges. There are additional systems under provisions of the Outer Continental military or intelligence ocean space needs, but these Shelf Lands Act (which raises questions as to the exemplify the problem. linkages between Coast Guard and Corps of A basic space allocation question arises here; is it Engineers' navigational management programs). necessary and desirable that these facilities remain Vessel transit lanes may have to be established as per available for the testing of missiles and other military manent ocean zones, similar to missile test ranges, to systems? If it is, then what must be done to protect insure the continued safety of navigation and yet these areas? As has been suggested earlier in this allow expanded development of ocean resources and report, the present process for resolving such conflict use of ocean space. is imperfect and is not always based upon a clear Other national ocean values that might suggest the national use of policy decision made by Congress need for some type of Federal ocean control include: and/or the Office of the President. 0 National security interests other than weapons The Bureau of Land Management appears to have testing, attempted to accommodate national security in- 0 Food production (biological productivity of terests, although there are several problems with the the ocean), process by which that accommodation is attempted, as 0 Marine species protection, and previously discussed. The Outer Continental Shelf Recreation. Lands Act states that OCS lands can be removed from the leasing process for purposes of national For each of these values, the thrust of "management" security and recognizes the authority of the President would not be to attempt to exert control over ocean to do so. It would seem clear that the protection of activities an'd ocean space per se but to insure that a fairways necessary for the safe firing of missiles falls limited number of specific values or interests are within the intent of the Outer Continental Shelf protected as the ocean is used. Lands Act. But it is not assured that these particular corridors, falling within unknown or suspected deposits of hydrocarbons, will be protected under the C. Management of Special Areas present system. There is strong political and economic pressure for the development of all Closely associated with the 'concept of manage- offshore hydrocarbon deposits, and arguments may ment of special values is the concept of management arise that the need for energy supplies is more impor- of special areas. This approach emphasizes the spatial tant than the maintenance of a large ocean corridor dimension of national interests and focusses upon for the exclusive use of the military. geographic areas of particular concern. There are at To protect these ranges, if it is determined to be in least four categories of special interest ocean areas the national interest to do so, the Federal Govern- that might warrant Federal management attention. ment might have to establish a permanent military 1. Areas of resource concentration. This might test zone, perhaps by Presidential Executive Order. If include deposits of sand, gravel, manganese nodules such a zone were structured along the line of the or oil and gas; fish concentration areas such as marine sanctuaries program or the deepwater port Georges Bank or Bristol Bay; ocean energy concen- program, then other activites would not tration areas such as the Gulf Stream, estuaries or automatically be excluded, but would be controlled deepwater ports. in time and space so as to be consistent with the primary use of that ocean and air corridor for missile 2. Areas of ocean sensitivity. There may be areas of testing purposes. the ocean which are particularly susceptible to damage or disruption which require special 2. Navigational fairways. The ability of the ocean monitoring, siting and control to minimize or prevent to support navigation has long been a recognized damage. This might include estuaries, migratory national interest, and a variety of management routes, breeding grounds. In terms of sensitivity, the programs have been developed to protect that in- temporal aspects of ocean dynamics becomes critical. terest. The Traffic Separation Schemes (TSS) for At certain limited times of the year, the surface major harbor and port areas such as the New York waters of the ocean become especially sensitive to dis- Bight, and more comprehensive and complicated ruption, as shellfish and finfish larvae are held in vessel traffic services (VTS) being completed for suspension at the surface. If an oil spill were to occur, Puget Sound and the Strait of Juan de Fuca illustrate or other disruptive event were to take place at this this type of management. time, a whole year class of sea clams, lobsters, or other finfish or shellfish species might be decimated But as ocean space beyond traditional port areas or possibly destroyed. Thus controls might be applied becomes more crowded with activities and structures, to such areas only under certain conditions or at formal navigational fairways may be needed exten- specific times of the year. ding far from shore, perhaps as far as the outer edge of the continental shelf. The U.S. Army Corps of 3. Ocean hazard areas. There are areas where Engineers currently has authority to establish such natural or manmade hazards represent threats to 74 human safety or the natural environment which create a new "ocean" zone with an entirely different might require special monitoring and control. This institutional structure than that Contained in the might include strong tide and current areas, storm Coastal Zone Management Act. For that matter, pathways, areas of tectonic activity, weapons testing OCS management could be upward and shoreward and ammunition disposal sites, shipwrecks, barrels of and be redefined to include more than minerals radioactive material, cables, pipelines, etc. There may leasing, as we shall see. also be moving hazards. A special floating hazard If the comprehensive model were applied to sub- zone is established by the Coast Guard around each merged lands and waters of both the territorial sea liquified natural gas tanker as it moves- into Boston and the outer continental shelf, it would imply an im- Harbor, and the hazard zone moves with the tanker mensc undertaking. If one takes the Coastal Zone in time and space. Management Act at face value and translates the con- 4. High activity areas. Major ports and harbors, cepts of comprehensive zone management it contains such as Boston and New York, Chesapeake Bay, to this larger area of ocean space and ocean Puget Sound, the St. Mary's River in the Great resources, a national identification of "wise use" of Lakes, the St. Lawrence Seaway, and the Houston this space and the resources would be needed. Then a Ship Channel may require special management, not monitoring and enforcement network would be only to avoid physical collision but also to resolve required to insure compliance with that definition of policy conflicts and administrative difficulties. As wise use. fishing, vessel transit, national security interests, and o.ffshore hydrocarbon production interact in time In one sense, this concept is not alien to our present and space, other offshore areas, such as Georges ocean-related programs and policies. There are at Bank, the Straits of Florida, and the Gulf of Mexico least four areas (national security, fisheries manage- may also require control, setting of priorities, conflict ment, OCS leasing, and navigation) where the ap- resolution, monitoring, and other forms of manage- proach is increasingly comprehensive, yet still single ment activity. purpose. What is really different about this approach is the focus upon some portion of the oceans, and all uses of it as a single system, rather than dividing it up into multiple management programs. Rather than D. Comprehensive Ocean Management having an outer continental shelf lands leasing prograin, there would be an ocean minerals leasing The last conceptual construct considered here is program, undertaken as part of ocean energy that of "comprehensive" ocean management. Under management and extractive uses management; and this approach, the entire collection of resources, these would be seen as being interrelated to decisions ocean dynamics, @nd human activities within a given regarding living resources management, navigation, amount of ocean space would be the focus of atten- recreation, and national security. tion. It can be seen as an expansion of special areas management, suggesting that the ocean or some This "comprehensive" approach was suggested as significant portion thereof is a "special area" early as the 1930's for an area of ocean space and requiring attention. ocean resources extending to the outer edge of the continental shelf (as discussed in Chapter Two). That The. United States has opted for this approach proposal was rejected on the basis of foreign policy within its territorial seas, or a least moved in that constraints and the absence of a compelling need. Re- direction, through the passage of the Coastal Zone cent suggestions for such an approach have been met, Management Act of 1972. The Act encourages states with very strong and quite appropriate skepticism as to establish broad priorities of use as well as designa- to what such an approach would accomplish, how tions as to what will and will not be permitted within much it would cost, and whether or not there is any this ocean area. Areas of particular concern are to be actual need. As the Coastal Zone Management Act designated and detailed management strategies comes up for review prior to its expiration, there have within this regime are to be coordinated and made also been challenges as to whether the comprehensive consistent with this set of priorities and use principles concept contained in the Act has worked or is to the degree practicable. While this kind of manage- needed. ment has roots in national forest planning, public lands planning, and river basin planning, it is really It is probable that this concept will continue to be an evolutionary extension of those earlier multiple evoked and will require serious consideration. It is an use natural resource programs. approach that has been attempted for land-based public resource areas, from forests to national parks "Comprehensive" ocean management is a concept and water basins; and aside from the important issue which suggests the extension and adoption of this of whether this approach has worked or whether kind of approach to a broader portion of ocean other approaches make as much or more sense, it is a space. This does not automatically imply an exten- way of structuring management efforts that sion of the coastal zone seaward, although obviously frequently appears to be advocated for Federal that is one interesting conceptual option. However, it management efforts.' is also possible to dissolve the "coastal" zone and 75 E. Constraints to Adopting a More Comprehensive However, there are also problems in that many ocean Concept of Ocean' Management activities may not be able to afford significant finan- cial contributions towards these costly governmental Initial difficulties with the Marine Sanctuaries systems. The costs of not undertaking government Program and the Coastal Zone Management ocean management in areas such as the New York Program indicate that there are many problems in at- Bight are not known, but they may be in their own tempting to establish some form of comprehensive way as significant as the costs of attempting such understanding of and control over a portion of ocean programs. The tradeoffs involved and the actual in- space and related ocean resources. Considering the terests at stake need to be more fully understood case of the New York Bight where the perception that before a more comprehensive management scheme is improved ocean space management and coordination either rejected or attempted. of public and private actions were needed, several 2 The complexities of "comprehensive" manage- questions are raised which may act as constraints upon adopting new approaches. In addition to those ment: information requirement. Recently, a Russian satellite crashed into northern Canada and brought issues already discussed, two additional points are to the public attention the existence of a United presented as indications of the kind of thinking States comprehensive information system which required before undertaking new ocean management maintains real-time monitoring of every artificial efforts. satellite in space. This is only one part of a global 1. Who will pay. In the New York Bight insuring monitoring system including underwater, surface, that boats do not run into each other; that the water and space monitoring systems, the full capabilities of is not polluted; that national security interests are which are highly classified. protected; that finfish and shellfish are harvested so as to maintain an "optimum" yield, these and ad- If the nation really wants to control ocean-use ditional actions represent a potentially expensive situations, such as those developing in Georges Bank program. For land highway systems, there are provi- or the New York Bight, increasingly complex infor- sions for special funding, through gasoline tax, mation systems similar to those used by the Defense license and registration fees, and highway tolls. Department may be needed to keep track of what is Although there have been major debates over the happening in time and space, involving not only Highway Trust Fund and the national tran *sportation vessel traffic patterns but also chemical and system, a system does exist which to some degree is biological patterns. These are already emerging, supported by users. The various vessel traffic control especially for navigation in major waterways. efforts undertaken by the U.S. Coast Guard cost millions of dollars to establish and considerable sums The establishment of ocean management informa- to maintain. It may be in the national interest or even tion systems requires and deserves a study in and of a national security issue of great importance that we itself and involves considerations of cost, content, have safe and efficient marine transit networks. But technical problems, legal issues, complexities of in- do the vessel owners who benefit from this coor- teragency coordination, and the role of private enter- dinated system support its establishment and main- prise in paying for, providing information to, or tenance? Should they? In a similar vein, commercial gaining access to such systems. It also involves fishing is a private industry. Yet, it is supported with national security interests which may represent con- millions of public dollars per year on the assumption straints upon the design, operation, or even the that without federal intervention, finfish and shellfish establishment of such information control systems. stocks would be depleted by overfishing. It is likewise The point to be made here is that for "comprehen- assumed that wetlands and estuaries need to be sive" control of even a small portion of ocean space, protected, new gear developed, treaties with other na- an enormous amount of data and a complex informa- tions established and maintained, and additional ser- tion system would be needed. vices and research undertaken. Who should pay for all of this Federal fisheries-related activity9 3. Security aspects. It is likely that we have an This issue has recently received considerable atten- extensive ocean information effort in place. The tion in connection with our inland waterway system Department of Defense and the National Security since that system is maintained at public expense Council conduct this for national security purposes. without significant user fees or other private enterprie This effort, combined with the activities of various contributions, This not only represents a demand on security agencies, probably provides our nation with information of the utmost military and intelligence public revenues but also can constitute a public sub- importance. The capabilities of this system are sidy which provides marine cargo carriers a price ad- perhaps understandably seen by the Department of vantage over other forms of transportation not Defense as being unavailable for utilization by the receiving the same amount of public assistance. general public. Therefore, it is likely that a new, Perhaps a cargo import or export fee, a tonnage costly system will have to be built for domestic pur- transported fee, a percentage of revenues landed fee, poses if a more intensive level of management is at- licensing fees, or similar methods should be used. tempted, and the technology may have to be 76 redeveloped if the military determines not to transfer definitions of the territorial sea? The intent of this advanced information system technology to the discussion is not to answer these questions, which domestic sector. would require a major study. The intent is to evoke a The other major security-related problem with variety of issues which help to indicate the degree to developing ocean management information systems which ocean management is presently influenced by is that if such systems were to provide good informa- the system of regimes under which it operates, and to tion on what is occurring in time and space, they, by suggest some of the issues which lie ahead for states, definition, would contain information which could the Federal Government and private industry. Using reveal military actions or systems, or facilitate the a graphic format introduced in Chapter Two for the disruption of U.S. domestic ocean activities and discussion of regimes, this section provides an initial facilities by pinpointing their location and status. As discussion of some alternative regime structures. a result, it can be assumed that national security agencies would argue that the United States either A. The Coastal Zone Management Act: Designing does not need a comprehensive ocean information Regimes system or that it would be counter to the national In 1972 the territorial sea regime that had been security interests to have such a system. One solution established by the Submerged Lands Act of 1953 was would be to build into such systems a capability of modified conceptually by the enactment of the turning them off, for national security purposes. Coastal Zone Management Act. The "coastal zone" One of the most obvious problems with that type envisioned in the Act includes not only submerged of arrangement is that over time several critical lands and resources, but also, quite explicitly, the domestic ocean management programs might waters of the territorial sea, which had been un- become dependent upon advanced information and defined in the earlier state-controlled regime. This control systems, just as the military has. To suddenly "coastal zone" also includes a portion of the shore shut those systems down is to invite a loss of control adjacent to the ocean, rather than stopping at the that might be avoided if some less drastic measures water's edge, and although not clearly defined, ap- could be taken. As patterns of ocean use become pears to also include some portion of the atmosphere more complex and as the need to make real-time deci- above the water. See Figure 8. sions becomes more important, this will require But the unique feature of the Coastal Zone further consideration and resolution. Management Act is that it can be characterized as a V. Regimes process for the formation of special ocean manage- ment regimes on a state-by-state basis. There may be In Chapter Two a description is provided of how up to 30 separate regimes, each with different shore and why various ocean management "regimes" (as components, each with different Federal-state were defined in Chapter One) were established. relationships. Figures 3, 4, and 5 indicate the evolution of the pre- It is also conceivable that two or more coastal sent ocean management structure wherein the states might form joint uniform regimes with consis- territorial sea, ocean waters, and outer con tinental tent priorities and objectives, developing a regional shelf lands are treated as three separate entities. regime that could possibly extend along an entire As a way of seeking further insight into the nature seaboard, although there has been no evidence that of ocean management, let us assume that the only such patterns will emerge in the near future. reasons those regimes were established as they were was because of (a) debate over Federal and state B. Expanding the Territorial Sea or the Coastal Zone authority, and (b) an effort to minimize constraints During the 1930's and 1940's both Roosevelt and upon American interests in foreign waters, Let us Ickes thought of moving the territorial sea outward further assume, for the moment, that a new in- as a method of obtaining national control over ocean ternational agreement was reached by which the resources such as fisheries and petroleum. The pre- foreign policy aspects become moot. Let us assume sent UNCLOS negotiations include the concept of an that it was agreed that every nation could and would internationally accepted 12-mile territorial sea. If this establish national sovereignty out to 200 miles from extension takes place, as shown in Figure 9, will it its shores and that the United States no longer per- carry with it the coastal zone structure created in ceived a significant linkage between the forms of 1972? Would the states be recognized as owning the authority imposed over its 200 mile band and its in- submerged lands and resources of this expanded terests in foreign waters. territorial sea? If 3-mile coastal zones established un- Given those assumptions, how should "U.S. ocean der the present system were not automatically exten- space" be structured for management purposes? ded to the outer boundaries of the new territorial sea, Should the present system be retained? Should it what would be the management structure, the dis- change? If so, in what way? For example, would we tribution of authority between state and Federal want to keep the territorial sea the way it is, either in Government in the nine miles of space beyond pre- size or character? Would the states want or seek new sent coastal zones? Would state coastal management 77 _:;2e:@' 3 ............. ................... Figure 8: THE PRESENT SYSTEM OF REGIMES There is an outer continental shelf regime (3), a deliberate absence of a regime for the ocean waters above the continen- tal shelf (2), and a territorial sea that can through an elaborate process be turned into a specially designed coastal zone regime (1). Figure 9: EXTENDING THE TERRITORIAL SEA If the territorial sea was extended from 3 to 12 miles, how would it effect State and Federal ocean programs? 78 still be voluntary? Would land-locked states obtain As an additional consideration, the Federal some portion of revenues derived from this new Government has already asserted control over many territorial sea? How would this affect the 200-mile water-related activities, from navigation to water Fishery Conservation Zone established in 1976? How quality, even within the territorial sea, which is would it affect the Outer Continental Shelf regime? otherwise largely a state domain. The waters of the Could state control be extended over the submerged territorial sea could in the future be combined with lands and resources, but not over the waters of this the waters over the outer continental shelf into a enlarged zone? "domestic ocean management regime." Such a regime could be Federally controlled. See Figure 11. But it also could be a partnership of Federal and state C. Combining Coastal Waters and Ocean Waters control, reflecting the linkages between offshore ac- tivities and shoreland access, This approach could If the United States were no longer constrained by lead to the very thing that our foreign policy and foreign policy considerations from establishing a for- security agencies would like to avoid,e.g., the carving mal management regime for ocean waters, should of ocean space into a series of "national lakes" with such a regime be established? Ocean waters could be attendant difficulties in security and policy. treated as a unit, similar in some ways to treating the outer continental shelf as a management unit. If this The inverse of this idea represents another option were done, as shown in Figure 10, coordination of where the submerged lands and waters of the programs such as marine sanctuaries, fisheries con- territorial sea, or the larger coastal zone (including servation, water quality, and navigation might be im- shorelands), would be combined with the waters of proved, and problems of ocean space management the ocean for some distance beyond 200 miles. This might be more easily resolved. would retain Federal "ownership" of the outer con- tinental shelf and combine shorelands, the territorial Under the Submerged Lands Act, states are not sea, and ocean waters into a single unit under joint recognized as "owning" the waters of the territorial state/Federal authority, as in Figure 12. This would sea, and many management responsibilities and appear to be in keeping with the increased recogni- authorities are reserved for the Federal Government. tion of state interests in ocean management decisions These two separate water areas could be combined discussed in Chapter Four. into a single ocean waters or coastal waters manage- ment regime. The management of this could either be a Federal E. Combining Federal and State Interests task, or a joint Federal-state venture, perhaps under Until the late 1930's, there was little United States some new institutional mechanism suggestive of the management beyond the three mile limit, and none Regional Fisheries Council. If such an approach were related to natural resources. When consideration was taken, it would avoid the complex and contentious first given to extending national control beyond three issue of ownership of the submerged lands. miles, the proposal was made to combine the territorial sea with outer continental shelf lands and overlying waters into a single national unit. If one D. Expanding the Outer Continental Shelf "Regime" now momentarily assumes that the historic foreign or Expanding the Coastal Zone policy constraints (including national security in- Through the Truman Proclamation of 1945, the terests) are dissolved, would such a structure make submerged lands and resources of the outer continen- sense? tal shelf were established as public lands of the Un- How would state interests be dealt with? Could this ited States. As described in Chapter Two, for two be a joint Federal-state zone? If it were, would land- years preceding the Truman Proclamation there was locked states be somehow included? What would be a sustained and intense debate as to whether or not the relationship between such a regime and the at- the waters above the continental shelf should be mospheric and land-based public management included with the continental shelf as a single unit of programs that exist at both the Federal and state national jurisdiction and management. If one level? What would be the impact of such an approach momentarily accepts the assumptions articulated at upon private industry? Would coastal zone regimes the beginning of this section, that foreign policy con- have to be dissolved? Would such a regime be con- cerns of the 1940's may no longer be as relevant today stitutionally valid? Would states have to give up some as they were then, the question arises as to whether or of their present authority? If such a regime were not the outer continental shelf and the waters above it established, how would it affect existing ocean could or should be combined in a single "manage- management programs? What would be the extent or ment" unit. The "economic zone" concept which is range of control which the public would need or be evolving at the UNCLOS negotiations appear to in- able to apply upon such a zone? How would it inter- corporate portions of this idea, of a 200-mile area fere with an international seabed regime? Could this where the resources of the zone would be under con- type of coordination be achieved without having to trol of the coastal state. change regimes? 79 N......................... IM:_ ........... . . . . . . . .... ............... X:.Y ....... x: . ............. X ........... .. X ........ . X x ............ X Figure 10: COMBINING COASTAL AND OCEAN WATERS Submerged lands have traditionally been treated separately from the waters above them. The waters of the territorial sea could be managed in unison with the waters overlaying the continental shelf as a single ocean water management regime. Figure 1. 1: EXPANSION OF THE COASTAL ZONE OR F. Conclusion THE OUTER CONTINENTAL SHELF As the objectives and complexitites of management change, the boundaries of management regimes may The Coastal Zone could be expanded to include water also need adjustment. The pattern of regimes beyond the territorial sea increasing the jurisdiction of the currently used for ocean management was established states as shown above, or, as shown below, the Outer after serious and prolonged study and debate. The Continental Shelf regime could be expanded to include debaters could not foresee the diversity and level of superjacent waters of the territorial sea, increasing the control that is now, being attempted. The United jurisdiction of the Federal Government. States has had more than twenty years experience with ocean programs and the present regimes. As new programs are considered and different institutional arrangements evaluated, it should be remembered why those regimes were established, the degree to which the structure of regimes can determine how well programs work, and that regimes can be changed. VI. Concepts of Special Interest Three major topics warrant brief, but special, men- tion in this study of ocean management. They are: (1) conflict and resolution of conflict; (2) coordination of ocean activities, programs, and policies; and (3) recognition of, assessment of, and management capabilities to deal with long-term cumulative effects associated with ocean resource uses. A. Coordination The United States has historically viewed the ocean space adjacent to its shores as having several manage- ment regimes. Within those regimes, a growing num- ber of policies and programs have been established 80 on a single purpose functional basis, One result of rather extensive coordination of ocean pollution this is an immediate need for coordination between research and monitoring and calls for an assessment each single purpose or narrow focus area of manage- and ranking of national needs and problems related ment. to ocean pollution. The specific coordinating One part of a general "ocean management" con- mechanism of this Act could serve as one possible cept might be the idea of somehow linking each of source of insight for a more general ocean coor- these regimes, programs, and policies into a directed dinating function. There are many other examples, cohesive whole, a system based on "ocean" space and such as the CZMA, regional planning organization, 41ocean" resources, as opposed to say, managing uses. the concepts in the National Urban Policy Program This method of achieving or improving coordination and others. is considered in the preceding section of this chapter. A detailed review and analysis of existing coor- But coordination might also be achieved without a dinating mechanisms for ocean-related activities and major restructuring. programs could be undertaken. There are probably There are a number of institutional or ad- hundreds of memoranda of understanding, less for- ministrative arrangements by which coordination mal inter-program letters and agreements, ad hoc could be accomplished. These specific arrangements coordination committees, regional variations of the are not in the scope of this study although they are Federal-state review process, and other devices that important. There are a number of existing themselves need to be coordinated, but which may mechanisms that could be examined to learn more provide a sufficient level of coordination in some about the mechanics of coordination, e.g., P.L. 95- instances. 273, the National Ocean Pollution Research and But one of the easiest ways of starting to improve Development and Monitoring Act. This Act requires coordination is through the process of information 00or Figure 12: JOINT FEDERAUSTATE AUTHORITY In terms of natural resources management and coordination of government policy and effort, this approach has a great deal of merit. It has been suggested, but rejected because of concerns over international repercussions, although several nations have adopted this strategy themselves. This may never come to pass in terms of institutional structure or explicit policy, for a wide variety of reasons alluded to in the report. However, if there is not a structural shift in this direction, a unit incorporating both the lands and waters of the oceans, and the air above to some degree will still be necessary in terms of program review, evaluation of long-range impacts, and identification of national interests. How this can be accomplished without the creation of a total oceans approach to national ocean-related programs and policies requires considerable study and skill. It is possible that it cannot be done, and that the United States will not realize the full benefits of or be able to afford full protection on the oceans. 81 flow. Aside from the military, very few companies, programs and activities that were to take place within individuals, or agencies have a clear idea of who is the next twelve to thirty-six months, then there would doing what within the oceans, and it is this basic in- be an opportunity to interact, to coordinate, to formation which is often sufficient to achieve coor- resolve conflicts, avoid inadvertent duplication, and dination or the beginnings of it. to join in mutually supportive efforts. It would not be The continued debate as to what information states an easy task, but it is difficult to see how the need for should be provided regarding outer continental shelf some such device can be avoided in the future. oil and gas activities reflects the importance of ob- At the state level, a coastal activity bulletin might taining information, the degree to which good com- be published more frequently, perhaps through the munication/information does not exist, and the ex- Sea Grant Programs, which would use input from un- tent to which communication and coordination are iversity researchers, fishermen, ship operators, interconnected. property owners, Federal agencies, and state agen- If the Government were totally restructured and a cies. This bulletin would review and summarize pen- new Department of the Oceans created, there would ding decisions, applicable EIS's, future public still be a need for basic information flow and a hearings, new hazards, new publications and reports, requirement, at some point, that programs and agen- etc. Such an information flow and use could provide cies cooperate. And ultimately, coordination implies the basis for a more effective linking of programs and an outside authority with the ability to make a final policy objectives. It could be done without a major decision, resolving conflicts and making a choice administrative change - in the current agency struc- among competing interests. No one currently has ture, and if done correctly, it could lead to a better that authority for either the coastal zone or the "fitting" of programs and activities in the oceans. oceans beyond. Perhaps regional Federal/state ocean Any major activity, program, or policy must con- coordination councils or an interagency structure sider several elements if it is to "fit" within the ocean within the Executive Office of the President might be "system." Without attempting to develop a complete able to achieve coordination without the need for list, the following items are some of the elements broader reorganization. which can determine the degree to which a new ocean It is very difficult to determine for any portion of activity (including programs or policies) causes dis- ruption, has no noticeable effect, or augments the ocean space what policies, regulations, programs, or existing system: Jong-range plans might apply. The Bureau of Land Management is perhaps unique in its publication of 0 foreign policy; long-range lease schedules that allow lead time of up 0 national security; to two or three years. It is striking how little com- munication between and among agencies and 0 navigation; programs takes place, either on a regional or a * atmosphere (pollution, climate, weather); national level. The creation of some mechanism for 0 state coastal management programs; communication of what is being done could significantly improve coordination, the lack of which 0 regional fishery management programs; may as often result from ignorance of other programs 0 OCS leasing programs; and activities- as from indifference or willful isolation. 0 water quality; 1.- Regional ocean atlas and ocean program bulletin a marine quality; concepts. If informational atlases were to be prepared marine mammals; for ocean space on a regional basis, perhaps reflecting endangered- species; the regional divisions of the Fishery Conservation and Management Act, it would provide each agency, recreation; program, and interest group with a common set of in- marine sanctuaries; formation not only as to natural conditions, but also regulations, programs, plans of any other about existing patterns of human activity. These Federal, state or local agency; atlases could also contain clear indications of laws, interests, intentions, activities of private regulations, and programs that apply to portions of industry; that region or to activities or resources within that ocean dynamics, including waves, currents and region. thermal gradients as well as hazards, such as If on an annual basis, some publication which, for hurricanes and high winds; purposes of discussion, will be called an ocean physical characteristics of site: location and program bulletin were issued on a regional basis, it nature of materials dumped, pipelines, cables, could significantly improve communication and wellheads, oil rigs, deepwater ports, floating coordination. If each state coastal program were assigned the task of mapping activities of its local and power plants, etc. state units of government, and if some similar These types of elements would be included in any Federal responsibility were assigned for Federal "ocean activity/use atlas" and would make up the in- 82 formation input and character of the dynamic atlas If we think of the problem of conflict resolution in system. the same way as the "spectrum" of management, the complexity of the concept can be seen. Passing from one end of the spectrum called complete agreement B. Conflict Resolution (and really nonconflict) we would envision passing through several intermediate stages, where through Conflict resolution is an often mentioned subject various external mechanisms we have achieved com- when one discusses the topic of "ocean manage- promise or partial satisfaction, to the opposite end of ment." Throughout this report, the topic of conflict the spectrum where full agreement is needed. and conflict resolution has emerged either by name or The mechanisms that provide the mid-range com- by implication. Many times when viewed closely, it is ponents of the conflict resolution mechanism are seen to have many features similar to that elusive many and varied in character. The consistency provi- topic of national interest. It means many things to sion of the CZMA is one of many examples of a man- many people. Everyone thinks it is needed, few peo- dated conflict resolution mechanism. ple completely agree on what it is and no one can describe a consistent set of criteria by which we can The conclusion one reaches is that it is extremely judge one particular conflict resolution approach difficult, if not impossible, to spell out a single, com- against another. prehensive conflict resolution process for ocean What is conflict? What are the conflicts in the management. Some of the conflicts that exist in ocean ocean? There are conflicts among uses, among users, affairs are derived from the basic structure of the among institutions, among agencies, among states, American government and economic system and may among regions, between many uses and the natural be unresolvable in the context of ocean management, system of the ocean, and indeed among systems set however conceived. There are many existing and per- up to resolve conflicts. manent approaches already in place for conflict resolution that cannot be ignored. What is resolution? When is an ocean conflict However, there are ways to assist these existing resolved? Is there a certain level of mutual com- processes of conflict resolution. One is to provide in- promise that indicates that an issue is now resolved, formation as discussed under the heading of Coor- e.g., has the relative role of states versus Federal dination. The other element which is particularly Government been resolved? If so, what level is it? needed in ocean management is a means of assessing In recent years, there has been a growing number development or activity impacts. The United States of conflicts in ocean resource use. States have had does not have an effective mechanism by which ocean conflicts with the Federal Government over resource resource development alternatives can be adequately ownership, over the right to regulate, over the ability assessed across the full range of effects and implica- to set and enforce standards and other related issues. tions associated with them. They have had conflicts with industry over facility siting, establishment of guidelines for operating C. Long-Range Cumulative Impacts facilities, and other issues. They have had conflicts with local units of government over the right to con- If management and control of the ocean is at- trol coastal development, the establishment of tempted, its success will depend upon a number of procedures to determine impacts, and different seg- variables. One of the most of these is the achievement ments of the public have had conflict over what the of increased knowledge and understanding of ocean national interest in the oceans should be, most par- uses, ocean resources, and the effects of one upon the ticularly on the issue of ocean protection versus other. The ability to control a system successfully de- resource use. pends to a significant degree upon a clear understan- One could go on to list literally hundreds of ocean ding of how that system is affected by external forces and the impacts which that system imparts upon its and coastal conflicts that have been, are, or will be, surrounding environment. subject to resolution procedures. However, the basic idea here is to illustrate that conflict resolution is a A considerable amount of effort has gone into the problem of many facets and dimensions. development of assessing and predicting the impacts It also is a concept that is not new in the oceans. In of various ocean activities -and events, such as oil Chapter Two it was shown that ocean resource con- spills, changes in fishing strategies, the mining of flict resolution was accomplished on a number of seabed minerals, ocean disposal of waste, the use of basic issues during 1940's and 1950's. This resolution ocean thermal gradients for the production of power, was accomplished by the mechanisms that were and several other activities. established to resolve conflict by the founders of our Most of these assessments, whether actual impact country: the legislative body and the courts. While calculations or general predictions, have focussed at- conflict resolution can occur at a number of levels or tention upon how individual activities and natural to a variety of "degrees," the ultimate conflict resolu- systems would interact in time and space. One ele- tion mechanisms are the courts and the Congress. ment of ocean management for which there does not 83 presently appear to be an assignment of responsibility concept of attempting to manipulate all of the in- or authority is to identify, evaluate, and propose ac- dividual goals, programs, policies, and decisions for tions based upon the long-range cumulative impacts some long-range purpose that depends upon the con- of the individual decisions being made by private in- trol of several otherwise uncoordinated activities. dustry, local and state government, and the Federal Considering the difficulties of controlling individual Government. activities for immediate purposes, the task of at- Impact assessment which treats each project as an tempting to manipulate several activities for a, isolated incident in time and space is valuable for in- perhaps difficult to perceive, long-range purpose suring that a given activity "fits" within the existing would be i mmense. web of other activities and dynamics of natural ocean However, over time individual actions establish the systems and national ocean policies. But long-range, future. If some aspects of that future are of sufficient cumulative impacts of multiple activities lead to an national importance, then it becomes necessary to entirely different level and type of decision and con- know what factors can be and must be controlled. trol. Thus, it was suggested in Chapter Four that if the As individual OCS leasing decisions, deepwater national objectives were to be long-range increases in port license permits, marine sanctuary designations, the quality and quantity of finfish and shellfish, these and associated activities take place, the cumulative im- factors will need control, including water pollution, pact may be to preclude the use of some portion of facility siting, weather modification, air pollution, ocean space for missile testing; to preclude the and others which may have little or nothing to do existence of some species of ocean life; to prevent with the direct problem of overfishing. extraction of a desirable resource; to prevent the If it is actually in the national interest to control utilization of some portion or dynamic of the ocean some aspects of the ocean, then it is important to for the production of power. In a similar fashion, the know where impacts come from, what represents a cumulative long-range impact of filling in more threat, what is not important. And it will be in- wetlands and estuaries may be the reduction of the creasingly important to understand the impacts of biological carrying capacity of the ocean, as well as ocean management upon the atmoshpere and the increased erosion and flooding problems on shore. land. What land-based options are being preempted The government does not have to identify these im- by ocean management decisions? What are the pacts, as demonstrated by the fact that little effort is cumulative long-range impacts upon the shorelands presently devoted to that type of activity. And in of the United States of the development of offshore many instances, it might be exceedingly difficult, and oil, or the prohibition of ocean dumping? expensive, to accomplish such analysis. Once a trend The United States has moved into a complex web is identified, once alternative futures can be predic- of ocean management programs, especially since the ted, it creates a need to make additional difficult early 1970's, without having identified the long-range public choices which can be both unpopular and im- implications of these control efforts, the cumulative possible to resolve successfully. impacts upon national budgets, size of government, Perhaps the strongest argument against attempting cost of ocean use, or the other factors alluded to long-range cumulative impact assessment as part of above. Several other nations are now engaged in or ocean management is that if long-range impacts can contemplating a similar degree of "management," be determined, if the consequences of decisions made and it would seem not only appropiate, but also for a variety ofactivities and locations can be traced vitally important, that these long-range and collective to subsequent conditions and options, it leads to the impacts receive greater attention. 84 CHAPTER SIX THINKING OF THE FUTURE 1. Introduction TSS system transects some of the lease sites, and further complicates the allocation of space Ocean management is a complex matter and will among activities. Also, two floating nuclear require consideration beyond this initial examina- power plants have been suggested for the north coast tion. However, a number of opinions and reactions of New Jersey, at the edge of the Bight area, raising that the authors have developed may be of interest to further concerns, requiring more inputs into siting those involved in further consideration of this impor- decisions, and increasing the likelihood of conflict. tant issue, The New York Bight situation is used as an example since it is increasingly typical of the type There are no policies for viewing or controlling the of arena in which we must begin to view the concept New York Bight as an ocean "space" or system. of "ocean management." There are policies for navigation, for fishing, for ocean dumping, for recreation, for wetland protec- In the New York Bight area, there are estimated to tion, for dredge and fill, for air quality, for surface be more than four hundred local, state, and Federal water runoff, for coastal management, and for agencies.' These governmental entities are involved in offshore oil and gas development. The effects of these the operation of port authorities; increasing employ- policies come together in time and space within the ment and economic development; the disposal of sur- New York Bight, and as each program attempts to face runoff, solid waste and sewage sludge; the provi- enforce its regulations and advance its interests, sion of recreation; and the management of coastal ocean space becomes more crowded and conflicts in- zones. crease. When disputes are settled, it is most often on Even if fishing and navigation were the only two an ad hoc basis, as often as not the result of small- principal activities in the Bight area, there would still scale political battles, and not on the basis of any be serious ocean mangement problems. But the Bight overall plan or goal. Is this the only or best way to has also been used for more than fifty years for the manage? Does the Bight represent a microcosm of dumping of municipal sewage sludge; it is now also future U.S. "ocean management" problems? part of a 200-mile wide fishery conservation and Because the conceptual approach of our present management zone. Its submerged lands are criss- ocean-related programs is that of functional crossed with cables and pipelines; its subsoil contains .separatism," the Federal Government has neither several tunnels; and there is a vast accumulation of the authority nor the responsibility to make sure that solid waste and sediment which is a pollution hazard all of the programs fit with each other and with the and a costly obstruction to trawl fishing. sensitivities of the natural ocean system, so that im- Because of the levels of vessel traffic, the Coast portant values are not destroyed. As Elliot Guard not only has a six-lane Traffic Separation Richardson observed about our national ocean- Scheme (TSS), but also is attempting to complete a related programs: radar-assisted vessel traffic control network for the ... it is not the lack of policies that is the issue; New York area, similar to air traffic control systems rather, the problem is the lack of a cornprehen- at major airports. The city of New York has resisted sive approach to setting ocean policies. Certainly this system, voicing fears that the microwave towers the policies we adopt for the use of the coastal proposed as part of the communications/identifica- zone should be consistent with those we adopt tion network may represent a health hazard to city for fisheries management and for the develop- residents. ment of our OCS oil and gas resources. Policies However, there are even more important con- with regard to OCS resources should, in turn, be siderations. The Bight sits on the edge of the consistent with those for the control of ocean Baltimore Canyon area, now being leased by the pollution. And policies with regard to our Department of the Interior for offshore hydrocarbon merchant marine or deep seabed interests should exploration and development. The Coast Guard's be consistent with our security and international Paul Mart, Jurisdictional Zones and Governmental Respon- economic and political interests.' sibilities, New York Sea Grant Institute, New York Bight National Ocean Policy Hearing Before the House Subcommit- Monograph 22 (in press 1979). tee on Oceanography, June 15, 1976. 85 "Consistency," as used by MT. Richardson, is a specially created review team, or by NACOA or somewhat abstract concept and to some degree it is other advisory group. For example: .not clear that consistency in and of itself is inherently 1. Coastal zone management. If successfully im- necessary. The New York Bight represents a very plemented as currently written, the Coastal Zone clear picture as to what can and is happening under Management Act will result in up to thirty definitions our present conceptual approach, an approach which of what activities should have priority within the had much of its origin in the rejection of the idea of a territorial sea of the United States. There could be unified comprehensive approach and one which tends thirty versions of how territorial sea decisions should to prevent or impede coordination and consistency. be made, what criteria should be used in the siting of At this time not all of ocean space needs a com- facilities, what activities should and should not be prehensive space and resource allocation system with allowed access. If nothing else, there is a need to un- clear priorities of use, detailed monitoring, and major dertake a unified compilation of these programs so enforcement and conflict resolution mechanisms. But that there is a single source of information on and a something like that may be needed for the New York clear national understanding of what the nation's Bight, for Georges Bank, for some-portions of the territorial sea management program is, with all of its Gulf of Mexico, and other areas of heavy use and variations as derived from state coastal management multiple management programs. efforts. However, there appears to be a need for ad- But what exactly is needed? Proposals continue to ditional review and analysis. emerge for an ocean agency, for "comprehensive" a. Each Federal ocean-related program should be ocean management,' for additional expenditures,more traced across the various state coastal programs to research, more management. There needs to be a bet- see how those program elements and objectives have ter understanding of what the actual problems are, been incorporated, implemented, or accounted for what existing management programs really work, within each of the state coastal programs. If there are and why, what the role of various levels of govern- major differences which lead to management incon- ment and private industry should or could be. There sistency in one portion.of the territorial sea compared is much that could be done, that perhaps must be to others and a major national interest is involved, done, before major changes or additions are made in then some special resolution should be undertaken present ocean programs. The following areas of con- now, rather then when such problems are revealed cern are not,presumed to be exhaustive but hopefully during implementation. Congress established an ad include some of the important actions that could be hoc negotiation process by which each state and each taken now and that may serve to elicit additional Federal program would attempt to work out some suggestions by others. consensus on how segmented portions of the territorial sea should be managed. It is time to review what has come of those individual negotiations and 11. Important Areas of Work: Recommendations see if they meet the needs of the nation and if they constitute a sufficient and workable management A. Program Review structure for the nation's territorial sea. b. As suggested elsewhere in this report, authority In most instances there is no concise, central over the water of the coastal zone is not clear. Federal description 'of existing individual ocean-related navigational servitude, commerce, defense, and programs which details the legislative/political energy production powers come close to constituting process by. which they are established, the complete ownership of territorial waters, and the Supreme legislative mandate, administrative actions taken to Court has ruled that the Federal Government has implement the program (including a sequential listing paramount rights and authority. Congress has gran- of memorandums of understanding and ad- ted ownership and jurisdiction to the states over the ministrative directives and an indication of present submerged lands beneath these waters and to the liv- status), Presidential orders relating to the program, ing and non-living resources in these waters through publication' and research undertaken, and the the Submerged Lands Act and asserted that wise use relationshi@s between individual programs with of the territorial sea can best result from state ad- respect to national ocean management objectives. ministration and exercise of "full authority," which is Few agencies are presently in a position to give a full, incomplete and ambiguous. More precise distribu- articulate, analytic identification of what the long- or tion of-both authority and responsibility is needed, medium-range needs of their program will be, or how not only for the three-mile territorial sea but for the it interacts with other ocean-related programs. It oceans beyond, especially in anticipation of possible would seem to be in the interest of each program and extensions of the territorial sea from three to twelve of a national understanding of ocean management to miles. have the administrator of each program prepare such a description, as some agencies are now beginning to c. The entire concept of a "coastal zone" should, do. In addition to this general need, some specific at this point, be reexamined, particularly the idea of ocean-related programs would benefit from review at meeting the national interests that may exist within this time, perhaps by Congress, perhaps by some this zone through a voluntary program administered 86 by individual states largely at their own discretion as should participate, what criteria should be used, and to content and direction. By now it should be obvious what should be the formal linkage between naviga- that, if the waters and submerged lands of the outer tion concerns and all of the other programs and ac- continental shelf region are to be developed and tivities? To what degree should or can we regulate utilized, there must be not only physical but also ships of other nations? How can coastal zone policy and administrative linkages with the shore and management be incorporated into or coordinated the intervening territorial sea. Perhaps the coastal with Federal navigational management? zone is too narrow a construct for some purposes and 4. UNCLOS. Emerging from the present Law of needs to be more sensitive conceptually and ad- the Sea negotiations is a new world ocean manage- ministratively to seaward needs and opportunities. ment regime and new principles and mechanisms for d. Our nation has an interest in, a need for, and ocean-related decision making. The nation has not policies and programs focussing upon economic really formulated a national policy on the oceans, utilization /development of natural resources. The from which negotiations can proceed at the UN- Coastal Zone Management Act, with the exception of CLOS meetings. What often seems to happen is "for- certain references to "facilities," energy, and OCS mulation" of national ocean policy for UNCLOS development, seems to give less than sufficient atten- purposes. The U.S. seems, at times, to accept new ele- tion to the reality and importance of economic ac- ments and new principles which run counter to those tivity. While some coastal programs have attempted previously claimed to be in the national interest. The to address this aspect of ocean use, they remain the Department of State as lead agency at UNCLOS has exception; such attention is not clearly required or not worked alone; and a significant, perhaps unique, encouraged in the Coastal Zone Management Act. It effort has been undertaken by DOS to gain some in- is unfortunate that this particular weakness of both put among national groups, from universities, in- the Act and subsequent program formulation and im- dustry, Congress, the military, and domestic agencies plementation has and will lead to efforts to undercut regarding our national ocean interests. important protection and conservation provisions. Because of the protracted negotiations at UN- Hopefully a positive effort could be made to supple- CLOS, it would seem prudent to review the implica- ment, rather than subvert, these coastal programs so tions of prior agreements and negotiations which that they incorporate the full range of territorial sea might impinge on our future ocean use. If such a and coastal activities. There are basic value conflicts review waits until Congress and the nation are asked that will not be quickly or easily resolved, but emerg- to ratify agreements already made, the whole process ing state programs provide a starting point which of gaining some degree of international consensus previously has not existed and which could serve as may be indefinitely delayed. the basis for national discussions on how our territorial sea should and should not be used, and 5. Atmospheric linkages. Since at least the 1960's, how best to achieve those desired results. weather modification has been proposed as being 2. State ocean-related programs and policies. As another method of providing water for agriculture, described in Chapter Two, the coastal states were the hydroelectric power, and municipal water supplies. traditional, if sometimes unknowing, administrators In the mid-1970's, the Federal Government moved of the territorial sea until challenged by the Federal towards the establishment of a national weather Government in the 1930's, Long before the Coastal modification program, and by mid-1973, the new Zone Management Act, many coastal states had in- National Weather Modification Board was talking of itiated ocean-related management efforts, on wetland precipitation augmentation by the early 1980's. Texts preservation, dredge and fill control, the siting of ma- of once secret Congressional hearings indicate that jor facilities, port and harbor planning, and fisheries the military had been extensively involved in both ex- management. The concepts, mechanisms, successes, perimental and tactical use of weather modification and failures of these state efforts should be reviewed and that Project Stormfury was started, in part, to in detail and utilized when appropriate in future gain.the ability to modify severe storms which were local, state, and national ocean planning efforts. causing property damage to homes built too close to the open sea. 3. Navigation. As pointed out in previous sections, In 1969 the Stratton Commission concluded that ocean space management is a key concept in looking ocean management must be linked to atmospheric toward the future. Within this concept is the problem management and proposed a single Federal agency to of surface management. Is navigation a key national coordinate and supervise both activities (National ocean value? Is the present navigation management Oceanographic and Atmospheric Administration). program sufficient? What about the present division Weather modification is no longer in the domain of of responsibility between the U.S. Army Corps of science fiction, but it is a growing national program Engineers and the U.S. Coast Guard? Is it inefficient? and significant private industry. Major weather Should this task be coordinated or unified into a modification could require manipulation of the single responsibility? Should navigation lanes be ex- ocean, or might affect the oceans as a secondary im- clusive use zones free from fishing? What should be pact. Hurricanes which destroy coastal homes also the navigational fairway designation process? Who distribute heat from the equator to northern regions; 87 their currents are a primary mechanism of global daries should be and why. If the answer is no, con- thermal transfer. Changes in the surface temperature sideration could be given to how a national program of the oceans which can shift jet streams and could allow for regional differences and how present precipitation patterns can also effect the distribution regional administration of national programs could of plankton, fish, mammals, migratory bird routes, be better coordinated. The studies might also spell and the cost of shipping. out conditions, not yet in existence, that would be the threshold point for future . regional or national The national weather modification program that is management system development. emerging needs to be coordinated with coastal and ocean management. The most appropriate time to C. Policy/Issue Reviews achieve such coordination is now, as these programs are being designed, decision processes and criteria Throughout this report several issues associated formulated, and long-range objectives established. with the scope, purpose, and design of national ocean management efforts have been identified. Those and B. Regional Studies others not included here could, and we feel should, be subjected to a detailed review by both Congress and If the nation is to undertake a broad assessment of the Executive Branch. its present and future ocean interests and ocean 1. Role of private enterprise. What'should be the management options, it would seem necessary to do role of private enterprise? To what degree should the so not only in the abstract, but also in the various Federal Government help private enterprise gain the ocean regions adjacent to our shores, such as the Gulf access it needs at shore or offshore locations? Should of Mexico, the North Atlantic, and the Gulf of private enterprise absorb more of the costs of various Alaska. "Regional studies" could take years and cost services they receive, such as ice breaking, weather hundreds of millions of dollars. However, regional forecasts, search and rescue? Should private enter- studies of an overview nature could also take two prise be given financial assistance, more freedom years or less, require relatively small amounts of new from regulations, more restrictions? funds, and provide much useful information. By us- ing available mapping and display techniques, the 2. Role of foreign and/or international interests in reviews could be structured in some uniform fashion national ocean management. In the past the United from region to region and come up with visual States has given major consideration to various documentation of present conditions and future op- foreign policy considerations in the way it has con- tions. Such studies might include: ducted and organized its national ocean. programs � Survey and listing of all public resource and policies. How should the still important linkages programs which apply to that region; between these two spheres be coordinated? ' I � Identification of type and location of major 3. National security interests in the oceans. What ocean activities; are the long-range opportunities and hazards of � Mapping of major ocean dynamics of the ocean utilization for national security operations? region; How should these be linked with other national in- � Seabed hazards inventory; terests in our national ocean management program? How can informed communication among and bet- � Adjacent land planning/programs; ween interest groups as well as public knowledge of � International programs /interests associated and supervision of national ocean activities be carried with the region; out without compromising security interests? � Available information indication and evalua- At the present time, we have two ocean manage- tion; ment programs at the national level. One is a � Air quality/loading; 66 civilian" program that is split into unconnected � Water quality; ocean regimes and undertaken on a narrowly defined, uncoordinated "functional basis." Its contents result � Key value inventory (status of navigation, from public debate and political compromise, and it national security, fisheries, recreation, etc.); clearly has many problems. The second system is � Major problems identification; much less visible, often because of security con- � Major opportunities identification; and straints. There is very little formal decision process Recommendations. for this second ocean management system, except within the National Security Council and its, UN- Such studies could also include a consideration of CLOS committee meetings. Congress may not have the specific policy/issue topics listed below for a dis- the same access to this system as it has to the cussion of how they apply to the specific region. Such domestic element, nor perhaps have individual ele- regional studies also address the issue as to whether ments of the national security community for which it or not it is necessary, desirable,or appropriate to un- exists. There are limited indications that it is also a dertake national ocean management programs on a fragmented approach and may not treat the ocean regional basis, and if the answer is yes, what boun- system as a total public resource. 88 4. Energy. What priority should be given to use of should remain on the land? What about price the oceans for energy production? How should ocean support policies? Will land-based aquaculture energy management be structured? How does the be treated differently than ocean-based Department of Energy fit into ocean management? mariculture? What is the role of private enterprise in ocean energy Urban planning. The oceans provide both op- systems? What is the responsibility of the states to ac- portunity and problems for our coastal cities. commodate energy facilities within their coastal hazards from flooding, hurricanes, and ero- zone? sion are serious and some urban development 5. Living resource management. Is the continued patterns are-annually increasing the likelihood biological productivity of the oceans a top national of major tragedy, e.g., occurrence of priority9 How far do we have to go to assure such hurricanes in areas that were not developed continuance? Are national patterns of land use, with hurricane effects in mind. The water also transportation, energy production, and waste dis- can represent a unique urban asset, providing posal polluting the oceans? Should "ocean manage- recreation, education, and jobs for urban resi- ment" be able to establish air and water quality dis- dents, giving character to the community, charge standards for the ocean? What happens if enhancing the quality of life. How can urban ocean systems continue to be degraded? Can planning and ocean management be more ef- damaged systems be rehabilitated, or artificial ones fectively linked? The recent movement in ur- created? ban waterfront redevelopment may play an important role here. 6. Ocean space management. How should we use ocean space? Should nuclear power plants be restric- D. Articulation of a National Ocean Philosophy ted to land? Are offshore facilities more vulnerable to Perhaps subsequent to some or all of the studies accident or attack? Which activities should have and reviews suggested above, the President and/or priority in the use of ocean space? Should there be Congress might prepare a new national statement of uniform national criteria and decision procedures for how and why the oceans are important to the United making such determinations? How can foreign States and some broad general principles which we vessels and citizens be regulated within our ocean intend to follow. Such a statement was made by space? Truman in 1945 and by Congress in 1966. A new 7. Boundries. What should be the boundries of national ocean statement might include discussion of. ocean management? How far seaward? Should all of 0 Role of private enterprise; the subsoil beneath the seabed be included? What 0 Role of local communities and state govern- about the atmosphere (air quality, communications, ment; air rights, weather modification)? Should shoreland 0 Role of the public; be included? If so, how? If not, why not, and how will linkages be established? 0 Role and importance of national security (military and intelligence findings); 8. Linkages. Associated with the boundary issue is * Attitude of United States regarding access of one of linkages with things that are excluded from foreign nations to our waters and need for in- 46Gcean management," but which affect or are affec- ternational ocean cooperation; ted by the oceans. How oceans relate to land-based interests and � National water policy. Why isn't ocean programs; management part of national water policy? Conflict resolution; Should ocean management be able to deter- Improving information and coordination; and mine the characteristics of river discharges into Degree to which oceans serve as a legitimate the oceans? Should ocean management be able focal point for national concern. to control how weather modification that uses the ocean occurs, even though the target is in- These areas listed above are recommended as items land? Should the current inland waterway that should be carried forward to support national study include a consideration of ocean and more informed decisions about which direction management; is it not all part of a national our nation might proceed. water transportation management effort? Should it be? Why? III. Freedom of the Seas or "Creeping Jurisdiction" � Agriculture/food management. What should be ... as the oceanbeds are increasingly opened the linkages between land food management up at ever-greater depth to exploration and ex- and ocean food management? Should more ploitation by various national and corporate in- national emphasis be placed upon ocean food terests, the limitations of the traditional freedoms production? Or will this be too restrictive upon of the sea become both more numerous and more other ocean uses and so food production disturbing. Exclusive national claims to exploit 89 the resources of steadily widening areas of the B. Beginnings oceanbed inevitably lead to political assertions designed to buttress such claims. And as drilling Under Roman law the oceans were considered as rigs, floating islands, stationary platforms, sub- being incapable of appropriation and ownership (res mersibles and artificial structures above and nuilius). The oceans were held to be open to all people below the surface of the sea multiply, the (res communis).' This should be considered, however, traditional freedoms of fishing and shipping, within the context of a political and military empire however strongly they may be affirmed which exerted either control or influence over much theoretically, must be qualified, restricted, and of the known world. ultimately excluded..' After the dissolution of the Roman Empire and the onset of the Middle Ages, there emerged several ma- jor maritime powers, including England, France, A. Introduction Denmark, Sweden, Venice, Genoa, Spain, Portugal, Within the United States and internationally, there and Holland, and each asserted claims or jurisdiction over some portion of the ocean. Perhaps the most are some individuals and groups who believe that our dramatic example was the Treaty of Tordesillas national ocean-related programs, such as the Fishery (1494) whereby Spain and Portugal carved up the Conservation and Management -Act of 1976, the oceans and lands of the New World between them- proposed establishment of an international seabed selves; Spain claiming total dominion over, and ex- authority, and other programs relating to resource clusive rights to navigate the Pacific, the Gulf of management represent an undesirable intrusion upon Mexico, and the Western Atlantic, and Portugal traditional "freedoms of the sea." This is often making similar claim over the Indian Ocean and the referred to as "creeping jurisdiction," indicating South Atlantic. By the 1600's, Venice claimed the perhaps an assumed sinister nature of this trend. This Adriatic; Genoa, the Ligurian Sea; Denmark and issue is of particular importance because it has had a Sweden claimed major rights in the Baltic; and both direct and major impact upon the scope and form of France and England asserted territorial zones adja- our own national ocean management efforts for more cent to their own coasts. than 40 years, as described in Chapter Two. However, at issue are not so much "freedoms" as With the defeat of the Spanish Armada in 1588 and are a set of traditional ocean activities which in a the capture of a major Spanish treasure fleet by the changing world can no longer expect consistent Dutchman, Piet Heyn, in 1628, the Spanish and Por- priority of access to ocean space. This issue includes tugese claims to ocean ownership were effectively several elements: silenced. The Dutch, through the works of Grotius, advocated a return to the Roman concept of freedon � There are concerns that the oceans should be of the seas (res communis) and argued that the asser- used as the "common heritage of mankind" tion of national jurisdiction was valid only for that for the benefit of all peoples, rather than to part of the ocean to which a nation could physically serve the interests of individual nation states. control access. Selden advanced a somewhat different � There is concern over the growth of restric- concept, of national dominion in some instances and tions in general, i.e., the degree to which each freedom in others (depending upon English interests). activity is regulated by policy, international By 1700 the more extravagant claims began to die agreement, and management authority. and in their place emerged the concept that a nation � But perhaps most important, there is concern could claim control over the oceans adjacent to its that maritime nations will exclude ships of shores to the distance that a cannon shot could reach other nations from nearshore ocean waters; or from shore; that is, to the degree that access could be that the passage of planes, surface ships or prevented from shore positions. Bynkershoek first submar -ines will be regulated or prevented in or advanced this concisely in 17021 and Galinai, an above larger and larger amounts of ocean Italian jurist, is one of those who proposed a fixed space; or that submarine detection systems and range of three miles! While this concept of national other devices associated with national security jurisdiction over a zone extending three nautical may be restricted from increasingly larger por- miles from shore began to receive acceptance in inter- tions of the ocean. national law, the degree of control that would be ex- Thus, the discussion of "freedom of the seas" is ercised within that zone remained in question. somewhat misleading. Few seriously advocate leav- Up until 1945, the diajor maritime powers have, ing the oceans without any regulation, and this is es- except in times of war, been supporters of a concept pecially true of the waters and submerged lands adja- of "freedom of the seas" in which each nation was cent to our own coast. Thomas Fern Percy, "Justice and Freedom of the Seas," Journal of International Law, 1928. Bartley, p. 9. Wolfgang Friedman, The Future of the Ocean(New York: M. W. Mouton, The Continental Shel/(The Hague: M. Nijhoff, George Braziller, Inc., 1971) p. 3. 1952), pp. 193-200. 90 perceived as being free to transit any portion of the world with multiple interests which cannot be accom- ocean space and to fish where it pleased. These modated without some degree of control, some for- maritime powers viewed the doctrine of freedom of mal, peaceful means of conflict resolution. the seas as essential to their interests since the oceans served as communication and trade links to their overseas colonies, were significant elements in their The real problem is not that of shortsighted military programs, and were the source of fish often national interests intruding upon some intrinsic taken in distant waters. They used their naval power "free" high seas regime. The real problem is that to enforce this doctrine. They also advocated a many new nation-states have emerged since World narrow territorial sea of three miles. Other nations War II, several of which, learning in large part from with less maritime access, such as the Soviet Union, developed maritime nations, have come to unders- have consistently claimed wider territorial waters of tand the degree to which the oceans are or can be 12 miles, which has been adopted by many countries linked with a variety of national interests. Aside from and is generally accepted at UNCLOS. the growing number of players which makes any ocean-wide rule more difficult to enforce, there is the But by the 1930's, the importance of the oceans growing number of possible uses of the oceans which, had changed for most nations, due in large part to the as Friedman observes in the passage starting this sec- emerging ability to extract hydrocarbons from sub- tion, intrude upon traditional ocean activities such as merged lands and the development of new military vessel transit and fishing. To suggest that the problem weapons and tactics. Some have suggested that the lies with national efforts to exert control and es- Truman Proclamations of 1945 regarding fisheries tablish more comprehensive management programs and outer continental shelf lands were the cause of is to miss the point. subsequent claims to extensive areas of the seabed and ocean waters by several nations. While those ac- tions by the United States have been used sometimes as a support for such claims by other nations, it seems clear that the real causes of such claims were new C. Common Heritage nationalistic assertions and shifts in technological capability, economic interests, and military Another aspect of the concern over freedom of the strategies. Prior to 1945 both the United States and seas has been the doctrine that the resources of the many other nations had given serious consideration oceans should be put to the use of mankind, rather to far more extensive claims than emerged from the than of individual nations. The position taken by Truman Proclamation. Borgese and Pardo exemplifies this point of view. As described earlier, there has been a consistent However, in the last year or two, that concern has concern on the part of the Department of State and, been translated, at least within the United Nations' increasingly, the Department of Defense about the Law of the Sea negotiations, into an interest in es- extension of United States management controls over tablishing a new economic and political world order. ocean space, fearing that such actions on our part Initiated by a group of developing nations referred to would compel or support curtailment of our activities as the Group of 77, but now extending beyond any in international or foreign waters. They have strongly particular faction, a shift in the Law of the Sea recommended narrow focus, functional approaches negotiations has occurred because of a realization and looked critically upon attempts by our nation or that control of the oceans could have profound effect others to extend the scope or boundaries of manage- upon military, economic, and political systems ment efforts as intrusions upon "freedom of the throughout the world. Just as the United States and seas." This report has already discussed the impor- the U.S.S.R. perceive the freedom of transit through tance of including national security and foreign or above international straits is of considerable im- policy considerations in national ocean management portance to their national security, so other nations programs, but the issue here is the validity and im- perceive that preventing such passage may be of im- portance of the concept of "freedom of the seas." portance to their national security. And just as the Relative to the concerns of Defense and State, it United States has evidenced an interest in deep sea seems more appropriate to focus upon the specific ac- mining, some nations with 'land-based mining in- tivities they wish to protect rather than upon a dustries perceive it to be in their interest to prevent nebulous concept of general "freedoms."If our such mining: national interests in unrestricted commercial ex- * * ,there is a deepening and more ploitation and transit through ocean space could be sophisticated perception among both developed linked to some inherent global concept of free access, and developing countries that the issue of it might be useful. But it seems unrealistic, and seabeds represents interests more fundamental perhaps unproductive, in present circumstances to than the immediate economic benefits en- push the concept very far. There are more than 150 visioned. Thus, as the negotiations have nations whose interests in the oceans must be accom- progressed, the stakes in the process of 'Who gets modated, and the "frontier" attitude of former what, when, and how' have been considerably decades is untenable in an increasingly crowded enlarged and elevated. The issues are no longer 91 confined to pragmatic questions of state practice human protein; the oceans support a vast and com- and jurisdiction but encompass more issues of plexly interconnected population of life forms suscep- states' principles; the mandate is no longer the tible to diminution and extinction; the oceans repre- technical design or a regime for deep seabed min- sent a great potential for energy, minerals, and other ing but the architectronic [sic] construction of the essential or valuable resources; the oceans provide contours of a future international, legal, the major means of global transportation of goods economic, and political order; the struggle is no people. All of these factors indicate that there must longer for the codification of international law be some degree and form of control. The interests but a competition for the control of future global and issues involved are in many instances.too impor- institutions.' tant to leave to a laissez faire system of allocation, and many of the interests, opportunities and 6. United States Ocean Management problems require. positive programs beyond the capabilities of individual citizens, companies, and As described in Chapters Two and Three, concern even single nations to implement successfully. over possible military, economic, and political reper- cussions of unilateral United States extension of The oceans, indeed, are a common heritage of authority or management programs into ocean space mankind; increasingly, the whole of mankind de- has had strong influence on the scope and structure mands and must be included in decisions regarding of the present national ocean-related programs. how this heritage shall be used. The significance of Reminiscent of Selden's Mar Clausum (1635) we ap- the oceans is such that conflicts among activities or pear to have developed a curious mix of ocean user groups have the potential for national or global programs and policies. On the one hand we claim a economic, environmental, or military disruption. As regime for resources in the submerged lands, exercise the potential for such conflicts increases and as more total control over access to our fisheries in a water users and large-scale activities seek access to the zone extending 200 miles from shore, maintain cer- oceans, some mechanism(s) must exist to allow for a tain pollution control capabilities in that zone, and pragmatic and peaceful resolution of conflicts. But have argued for and participated in the establishment increasingly, efforts must also be made to settle a of several multinational and international ocean more basic conflict between the seemingly endless in- management regimes to control ocean dumping, ventive efforts of mankind to utilize the oceans and tanker construction, the killing of whales and other the oceans' finite capacity to absorb change without species of ocean life, the placement of certain weapon degradation of its resource potential. Furthermore, systems on or beneath the seabed, and the establish- positive efforts are needed to head off conflicts before ment of international navigational rules and controls. they occur, rather than deal with them once they On the other hand, we argue in our foreign policy become dangerous or disruptive. positions for minimal extensions of national jurisdic- It would -seem that United States ocean interests tion and the maintenance of "freedom of the seas" es- can no longer be ensured by resisting the formation pecially regarding distant-water fisheries and transit of domestic, foreign, or international ocean manage- through international straits. ment regimes. It is logical that the regimes which Freidman is correct in his assessment of growing emerge will recognize and allow the continuance of potential for exclusion or serious diminution of im- important ocean uses. It is also important to ap- portant ocean activities such as fishing and vessel preciate that while images of "creeping jurisdiction" transit. The continuance of these and'other ocean may still have some restraining or limiting effect uses requires the maintenance of certain physical, upon the scope and form of United States ocean- biological, and chemical qualities in the oceans, as related programs, such images may have decreasing well as control over and some degree of uniformity in relevance to the concerns and intentions of many how activities are distributed in both time and space. maritime nations who are, both unilaterally and in This, in turn, implies increased jurisdiction and con- concert, discussing various new types of ocean trol, rather than an absence of it. While some interest management "regimes" either formally or infor- groups have argued for a minimal extension of Un- mally. ited States ocean-related management programs, there has emerged a concept of a world seabed E. Summary and Conclusions authority to regulate and to some degree undertake exploitation of seabed resources beyond the con- From the growing interest in ocean management, tinental shelf. the phrase "creeping jurisdiction" has emerged. It represents a claim that national extensions of Because many factors lead us to look further at the authority over various aspects of ocean space and need for an increased understanding of control, we ocean activities constitute an intrusion upon the now better understand the degree to which the world "high seas." This concept implies that the high seas oceans are a key part of world and regional weather are not available for national appropriation or and climate patterns; the oceans are a vital source of management and that there is supposed to be a vacuum of noncontrol in that part -of the ocean Patsy Mink, San Diego Law Review, Vol. 15, No. 3, p 363. known as the high seas. 92 That concept of "freedom of the seas" with respect national reticence to extend jurisdictional control to living and non-renewable resources is increasingly over some aspect of ocean use or ocean space will not untenable for the very reasons cited by Friedman. always be an effective method of instilling a similar Today, and perhaps in fact for several hundred years, reticence into other maritime nations.It has already the issue has not been if there should be rules become evident that traditional ocean uses or regarding how ocean space will be used, but rather "freedoms" such as vessel transit and fishing will re- whose rules will apply; the degree to which these rules quire multinational coordination. An awareness is should be formalized and/or enforced; and what needed on the part of all ocean users, both traditional process is appropriate for the development of such and emerging, that the oceans can accommodate rules. multiple uses and multiple interests only through a There are too many national and international spirit of cooperation and that all users must exercise ocean interests to accept a total vacuum in which no some constraint to accommodate other users and to controls would exist over resources, and too many preserve and protect the oceans themselves. public interests to allow a laissez faire distribution The United States seems to face a major turning in a market sense. Nations can no longer make up point; it has reached a new juncture in history their own ocean rules with respect to resources, which regarding organization of its ocean-related programs may have been interpreted in the past as "freedom of and interests. It is a unique time in history, for it the seas." Then we must seek and are seeking formal would appear that some 150 other nations have also rules and means by which our interests can be con- begun to realize the global importance of the oceans, sidered. There is, of course, a fairly well established for the future of the world, and for the future of in- legal framework made up of agreements and dividual nations. Since the 1940's the United States customary law that governs "freedom of the seas" has led, although not always controlled, international concepts. The interpretation of this framework into ocean policy and foreign ocean management efforts. "domestic ocean management" on a potentially ex-' Our present complex of ocean programs and policies panded scale is not yet clear. seem to exceed that of any other nation. In conclusion, it is perhaps unrealistic to use terms The choices we make regarding the ocean will be of such as "creeping jurisdiction" as a criticism of importance not only to the United States but also, in- proposed national and international ocean manage- creasingly, to the world. And increasingly we must ment concepts. It is increasingly important for the consider the world's needs and interests in shaping United States to account for both national and inter- our programs and policies. It is time, certainly, to national interests and their implications in any ocean- take action, but it must be action stemming from in- related management activity. It is true that there are formed deliberation and the resolution of basic very good reasons for extending management within issues. If we initiate such deliberations now, we can ocean space and ocean affairs only when needed and look forward to the development of sound and effec- then with caution. But if there are to be freedoms in tive means for ocean management. If it will, the Un- the future, they will probably result from even more ited States can lead; if it will not, we can be confident deliberate resource management efforts to insure that others will act without us. those freedoms. It should be clear by now that 93 Ocean Management: Seeking a New Perspective Appendix Submerged Lands Act AN ACT To confirm and establish the titles of the States to lands beneath navigable May 22, 1953 waters within State boundaries and to the natural resources within such lands and [H.-R. 4198] waters, to provide for the use and control of said lands and resources, and to con- firm the jurisdiction and control of the United States over the natural resources of the seabed of the Continental Shelf seaward of State boundaries. Be it enacted by the Senate and House of Representatives of the United States Submerged Lands of America in Congress assembled, That this Act may be cited as the "Submerged Act. Lands Act". TITLE I DEFINITIONS Sec. 2. When used in this Act- "Lands beneath (a) The term "lands beneath navigable waters" means- navigable waters." (1) all lands within the boundaries of each of the respective States which are covered by nontidal waters that were navigable under the laws of the United States at the time such State became a member of the Union, or ac- quired sovereignty over such lands and waters thereafter, up to the ordinary high water mark as heretofore or hereafter modified by accretion, erosion, and reliction; (2) all lands permanently or periodically covered by tidal waters up to but not above the line of mean high tide and seaward to a line three geographical miles distant from the coast line of each such State and to the boundary line of each such State where in any case such boundary as it ex- isted at the time such State became a member of the Union, or as heretofore approved by Congress, extends seaward (or into the Gulf of Mexico) beyond three geographical miles, and (3) all filled in, made, or reclaimed lands which formerly were lands beneath navigable waters, as hereinabove defined; (b) The term "boundaries" includes the seaward boundaries of a State or its "Boundaries" boundaries in the Gulf of Mexico or any of the Great Lakes as they existed at the time such State became a member of the Union, or as heretofore approved by the Congress, or as extended or confirmed pursuant to section 4 hereof but in no event shall the term "boundaries"or the te@rrn "lands beneath navigable waters" be interpreted as extending from the coast line more than three geographical miles into the Atlantic Ocean or the Pacific Ocean, or more than three marine leagues into the Gulf of Mexico; (c) The term "coast line" means the line of ordinary low water along that "Coast line" portion of the coast which is in direct contact with the open sea and the line mark- ing the seaward limit of inland waters; 95 (d) The terms "grantees" and "lessees" include (without limiting the "Grantees" and generality thereof) all political subdivisions, municipalities, public and private "lessees." corporations, and other persons holding grants or leases from a State, or from its predecessor sovereign 'if legally validated, to lands beneath navigable waters if such grants or leases were issued in accordance with the constitution, statutes, and decisions of the courts of the State in which such lands are situated, or of its predecessor sovereign; Provided, however, That nothing herein shall be construed as conferring upon said grantees or lessees any greater rights or interests other than are described herein and in their respective grants from the State, or its predecessor sovereign; (e) The term "natural resources" includes, without limiting the generality "Natural thereof, oil, gas, and all other minerals, and fish, shrimp, oysters, clams, crabs, resources" lobsters, sponges, kelp, and other marine animal and plant life but does not in- clude water power, or the use of water for the production of power; (f) The term "lands beneath navigable waters" does not include the beds of streams in lands now or heretofore constituting a part of the public lands of the United States if such streams were not meandered in connection with the public survey of such lands under the laws of the United States and if the titleto the beds of such streams was lawfully patented or conveyed by the United States or any States to any person; (g) The term "State" means any State of the Union; (h) The term "person" includes in addition to a natural person, an associa- "Person." tion, a State, a political subdivision of a State, or a private, public, or municipal corporation. Title 11 LANDS BENEATH NAVIGABLE WATERS WITHIN STATE BOUNDARIES Sec. 3. Rights of The States- (a) It is hereby determined and declared to be in the public interest that (1) Title and powers. title to and ownership of the lands beneath navigable waters within the boundaries of the respective States, and the natural resources within such lands and waters, and (2) the right and power to manage, administer, lease, develop and use the said lands and natural resources all in accordance with applicable State law be, and they are hereby, subject to the provisions hereof, recognized, confirmed, es- tablished, and vested in and assigned to the respective States or the persons who were on June 5, 1950, entitled thereto under the law of the respective States in which the land is located, and the respective grantees, lessees, or successors in interest thereof, (b) (1) The United States hereby releases and relinquishes unto said States Claims of U.S. and persons aforesaid, except as otherwise reserved herein, all right, title, and in- terest of the United States, if any it has, in and to all said lands, improvements, and natural resources; (2) the United States hereby releases and relinquishes all claims of the United States, if any it has, for money or damages arising out of any operations of said States or persons pursuant to State authority upon or within said lands and navigable waters; and (3) the Secretary of the Interior or the Secretary of the Navy or the Treasurer of the United States shall pay to the respective States or their grantees issuing leases covering such lands or natural resources all moneys paid thereunder to the Secretary of the Interior or to the Secretary of the Navy or to the Treasurer of the United States and subject to the control of any of them or to the control of the United States on the effective date of this Act, except that portion of such moneys which (1) is required to be retur- ned to a lessee; or (2) is deductible as provided by stipulation or agreement bet- ween the United States and any of said States; (c) The rights, powers, and titles hereby recognized, confirmed, established, Leases in effect and vested in and assigned to the respective States and their grantees are subject on June 5, 1950. 96 to eacfi lease executed by a State, or its grantee, which was in force and effect on June 5, 1950, in accordance with its terms and provisions and the laws of the State issuing, or whose grantee issued, such lease, and such rights, powers, and titles are further subject to the rights herein now granted to any person holding any such lease to continue to maintain the lease, and to conduct operations thereunder, in accordance with its provisions, for the full term thereof, and any extensions, renewals, or replacements authorized therein, or heretofore authorized by the laws of the States issuing, or whose grantee issued such lease: Provided, however, That, if oil or gas was not being produced from such lease on and before December 11, 1950, or if the primary term of such lease has expired since December 11,1950, then for a term from the effective date hereof equal to the term remaining unex- pired on December 11, 1950, under the provisions of such lease or any extensions, renewals, or replacements authorized therein, or heretofore authorized by the laws of the State issuing, or whose grantee issued, such lease: Provided, however, That within ninety days from the effective date hereof (i) the lessee shall pay to the State or its grantee issuing such lease all rents, royalties, and other sums payable between June 5, 1950, and the effective date hereof, under such lease and the laws of the State issuing or whose grantee issued such lease, except such rents, royalties, and other sums as have been paid to the State, its grantee, the Secretary of the Interior or the Secretary of the Navy or the Treasurer of the United States and not refunded to the lessee; and (ii) the lessee shall file with the Secretary of the Interior or the Secretary of the Navy and with the State issuing or whose grantee issued such lease, instruments consenting to the payments by the Secretary of the Interior or the Secretary of the Navy or the Treasurer of the United States to the States or its grantee issuing the lease, of all rents, royalties, and other payments under the control of the Secretary of the Interior or the Secretary of the Navy or the Treasurer of the United States or the United States which have been paid, un- der the lease, except such rentals, royalties, and other paymerts as have also been paid by the lessee to the State or its grantee; (d) Nothing in this Act shall affect the use, development, improvement, or Rights of U.S. control by or under the constitutional authority of the United States of said lands respecting navigation, and waters for the purposes of navigation or flood control or the production of etc. power, or be construed as the release or relinquishment of any rights of the Un- ited States arising under the constitutional authority of Congress to regulate or improve navigation, or to provide for flood control, or the production of power; (e) Nothing in this Act shall be construed as affecting or intended to affect or Surface waters in any way interfere with or modify the laws of the States which lie wholly or in west of 98th part westward of the ninety-eighth meridian, relating to the ownership and con- meridian. trol of ground and surface waters; and the control, appropriation, use, and dis- tribution of such waters shall continue to be in accordance with the laws of such States. Sec. 4. Seaward Boundaries.-The seaward boundary of each original coastal State is hereby approved and confirmed as a line three geographical miles distant from its coast line or, in the case of the Great Lakes, to the international boundary. Any State admitted subsequent to the formation of the Union which has not already done so may extend its seaward boundaries to a line three geographical miles distant from its coast line, or to the international boundaries of the United States in the Great Lakes or any other body of water traversed by such boundaries. Any claim heretofore or hereafter asserted either by con- stitutional provision, statute, or otherwise, indicating the intent of a State so to extend its boundaries is hereby approved and confirmed, without prejudice to its claim, if any it has, that its boundaries extend beyond that line. Nothing in this section is to be construed as questioning or in any manner prejudicing the ex- istence of any State's seaward boundary beyond three geographical miles if it was so provided by its constitution or laws prior to or at the time such State became a member of the Union, or if it has been heretofore approved by Congress. 97 Sec. 5. Exceptions From Operation of Section 3 of This Act.-There is excep- ted from the operation of section 3 of this Act- (a) all tracts or parcels of land together with all accretions thereto, resources therein, or improvements thereon, title to which has been law- fully and expressly acquired by the United States from any State or from any person in whom title had vested under the law of the State or of the United States, and all lands which the United States lawfully holds under the law of the State; all lands expressly retained by or ceded to the United States when the State entered the Union (otherwise than by a general retention or cession of lands underlying the marginal sea); all lands ac- quired by the United States by eminent domain proceedings, purchase, cession, gift, or otherwise in a proprietary capacity; all lands filled in, built up, or otherwise reclaimed by the United States for its own use; and any rights the United States has in lands presently and actually occupied by the United States under claim of right; (b) such lands beneath navigable waters held, or any interest in which is held by the United States for the benefit of any tribe, band, or group of In- dians or for individual Indians; and (c) all structures and improvements constructed by the United States in the exercise of its navigational servitude. Sec. 6. Powers Retained by the United States.-(a) the United States retains all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownship, or the rights of management, administration, leasing, use, and development of the lands and natural resources which are specifically recognized, confirmed, es- tablished, and vested in and assigned to the respective States and others by section 3 of this Act. (b) In time of war or when necessary for national defense, and the Congress or the President shall so prescribe, the United States shall have the right of first refusal to purchase at the prevailing market price, all or any portion of the said natural resources, or to acquire and use any portion of said natural resources, or to acquire and use any portion of said lands by proceeding in accordance with due process of law and paying just compensation therefor. 5 USC 485; 16 Sec. 7. Nothing in this Act shall be deemed to amend, modify, or repeal the USC 460d, 825s; Acts of July 26, 1866 (14 Stat. 251), July 9, 1870 (16 Stat. 217), March 3, 1877 (19 30 USC 35, 36, 38, Stat. 377), June 17, 1902 (32 Stat. 388), and December 22, 1944 (58 Stat. 887), and 43, 46, 47, 51, 52, Acts amendatory thereof or supplementary thereto. 33 USC 70 la-1, Sec. 8. Nothing contained in this Act shall affact such rights, if any, as may have 70 1c, 701f, 701j, been acquired under any law of the United States by any person in lands sub- and notes, 708, 709, 43 USC 321- ject to this Act and such rights, if any, shall be governed by the law in effect at the 323, 325, 327-329, time they may have been acquired: Provided, how-ever, That nothing contained in 372-498 passim, this Act is intended or shall be construed as a finding, interpretation, or construc- 661, 766. tion by the Congress that the law under which such rights may be claimed in fact or in law applies to the lands subject to this Act, or authorizes or compels the granting of such rights in such lands, and that the determination of the ap- plicability or effect of such law shall be unaffected by anything contained in this Act. Resources seaward Sec. 9. Nothing in this Act shall be deemed to affect in any wise the rights of of Continental Shelf. the Unit 'ed States to the natural resources of that portion of the subsoil and seabed of the Continental Shelf lying seaward and outside of the area of lands beneath navigable waters, as defined in section 2 hereof, all of which natural resources appertain to the United States, and the jurisdiction and control of which by the United States is hereby confirmed. 98 Sec. 10. Executive Order Numbered 10426, dated January 16, 1953, entitled 18 FR 405. "Setting Aside Submerged Lands of the Continental Shelf as a Naval Petroleum Reserve", is hereby revoked insofar as it applies to any lands beneath navigable waters as defined in section 2 hereof. Sec. 11. Separability.-If any provision of this Act, or any section, subsec- tion, sentence, clause, phrase or individual word, or the application thereof to any person or circumstance is held invalid, the validity of the remainder of the Act and of the application of any such provision, section, subsection, sentence, clause, phrase or individual word to other persons and circumstances shall not be affec- ted thereby; without limiting the generality of the foregoing, if subsection 3 (a) 1, 3 (a) 2, 3 (b) 1, 3 (b) 2, 3 (b) 3, or 3 (c) or any provision of any of those subsections is held- invalid, such subsection or provision shall be held separable and the remaining subsect 'ions and provisions shall not be affected thereby. Approved May 22, 1953. "Policy of the United States With Respect to Coastal Fisheries in Certain Areas of the High Seas "By the President of the United States of America "A PROCLAMATION "WHEREAS for some years the Government of the United States of America has viewed with concern the inadequacy of present arrangements for the protection and perpetuation of the fishery resources contiguous to its coasts, and in view of the potentially disturbing effect of this situation, has carefully studied the possibility of improving the jurisdictional basis for conservation measures and international cooperation in this field; and "WHEREAS such fishery resources have special importance to coastal com- munities as a source of livelihood and to the nation as a food and industrial resource; and "WHEREAS there is an urgent need to protect coastal fishery resources from destructive exploitation, having due regard to conditions peculiar to each region and situation and to the special rights and equities of the coastal State and of any other State which may have established a legitimate interest therein; "Now, THEREFORE, 1, HARRY S. TRUMAN, President of the United States of America, do hereby proclaim the following policy of the United States of America with respect to coastal fisheries in certain areas of the high seas: "In view of the pressing need for conservation and protection of fishery resources, the Government of the United States regards it as proper to establish conservation zones in those areas of the high seas contiguous to the coasts of the United States wherein fishing activities have been or in the future may be developed and maintained on a substantial scale. Where such activities have been or shall hereafter be developed and maintained by its nationals alone, the United States regards it as proper to establish explicitly bounded conservation zones in which fishing activities shall be subject to the regulation and control of the United States. Where such activities have been or shall hereafter be legitimately developed and maintained jointly by nationals of the United States and nationals of other States, explicitly bounded conservation zones may be established under agreements between the United States and such other States; and all fishing ac- tivities in such zones shall be subject to regulation and control as provided in such agreements. The right of any State to establish conservation zones off its shores in accordance with the above principles is conceded, provided that corresponding recognition is given to any fishing interests of nationals of the United States which may exist in such areas. The character as high seas of the areas in which such con- servation zones are established and the right to their free and unimpeded naviga- tion are in no way thus affected. 99 "IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the United States of America to be affixed. "Done at the City of Washington this twenty-eighth day of September, in the year of our Lord nineteen hundred and forty-five, and of the Independence of the United States of America the one hundred and seventieth. HARRY S. TRUMAN By the President: Dean Acheson Acting Secretary of State" "By the President of the United States of America "A PROCLAMATION "WHEREAS the Government of the United States of America, aware of the long range world-wide need for new sources of petroleum and other minerals, holds the view that efforts to discover and make available new suppplies of these resources should be encouraged; and "WHEREAS its competent experts are of the opinion that such resources underlie many parts of the continental shelf off the coasts of the United States of America, and that with modern technological progress their utilization is already practicable or will become so at an early date; and "WHEREAS recognized jurisdiction over these resources is required in the interest of their conservation and prudent utilization when and as development is undertaken; and "WHEREAS it is the view of the Government of the United States that the exercise of jurisdiction over the natural resources of the subsoil and sea bed of the continental shelf by the contiguous nation is reasonable and just, since the effec- @iveness of measures to utilize or conserve these resources would be contingent 'upon cooperation and protection from the shore, since the continental shelf may be regarded as an extension of the land-mass of the coastal nation and thus naturally appurtenant to it, since these resources frequently form a seaward exten- sion of a pool or deposit lying within the territory, and since self-protection com- pels the coastal nation to keep close watch over activities off its shores which are of the nature necessary for utilization of these resources; "Now, THEREFORE, 1, HARRY S. TRUMAN, President of the United States of America, do hereby proclaim the following policy of the United States of America with respect to the natural resources of the subsoil and sea bed of the continental shelf. "Having concern for the urgency of conserving and prudently utilizing its natural resources, the -Government of the United States regards the natural resources of the subsoil and sea bed of the continental shelf beneath the high seas but contiguous to the coasts of the United States as appertaining to the United States, subject to its jurisdiction and control. "IN WITNESS WHEREOF, I have hereunto set my hand and caused the seal of the United States of America to be affixed. "Done at the City of Washington this twenty-eighth day of September, in the year of our Lord nineteen hundred and forty-five, and of the Independence of the United States of America the one hundred and seventieth. Harry S. Truman By the President Dean Acheson Acting Secretary of State" 100 U.S. GOVERNMENT PRINTING OFFICE : 1980 0-311-046 (6) I INNIIIIIIIIII 3 6668-00000 3295