Who's in Charge Here? Oceans and Government

"The failure to conceive of the oceans as the largest component of our public domain, to be managed holistically for the greater public good in perpetuity, is perhaps the greatest flaw of U.S.ocean policy. America’s oceans span nearly 4.5 million square miles, an area 23 percent larger than the nation’s land area. It is a vast three-dimensional place over which our federal and state governments exercise jurisdiction on behalf of all citizens of the United States."

—America's Living Oceans: Charting a Course for Sea Change, Pew Oceans Commission, May 2003.

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US ocean policy is a hodgepodge of individual laws that has grown by accretion over the years, often in response to crisis. More than 140 federal laws pertain to the oceans and coasts, involving at least 6 departments of the federal government and dozens of federal agencies.

Authority over marine resources is fragmented geographically. States have authority from the shoreline out three miles. Federal territorial sovereignty extends 12 miles offshore out to 200 miles. This division makes it difficult to protect marine ecosystems.

Major Laws Affecting our Oceans

Magnuson-Stevens Act

[From the Pew Report] "In many ways, the crisis in marine fishery management is a crisis of governance. The Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) pro- vides the broadest articulation of American marine fisheries policy and the basis of some aspects of state and interstate fishery manage- ment regimes. Originally crafted in 1976, the law is based upon what we now understand to be outdated principles. Though the law was strengthened in 1996, underlying structural and systemic problems remain.

Three fundamental problems afflict the Magnuson-Stevens Act. First, its management regime emphasizes short-term commodity pro- duction, revenues, and employment rather than sustaining natural systems that support and enhance wild fish populations. Although authority to sustain fishery resources exists within the law, it has been overwhelmed by the drive to maximize catches. As a result, sin- gle-species management techniques, the desire for short-term profits over sustainable long-term income, andadvances in technolo- gy have driven fishery conduct.

Second, the management structure and process suffer from regulatory capture, a state of affairs in which government regulators (in this case, fisheries managers) have come to believe that their role is to defend the interests of the regulated community rather than promote the public interest. Resource users— principally commercial interests—drive management decisions. They exercise power through eight regional fishery management councils that were originally established to assure that management would be tailored to regional differences and local needs. In prac- tice, resource users dominate the councils’ voting memberships.

The law establishes the councils as the lead managers to formulate fishery-manage- ment policy applicable to their region. In prac- tice, councils make both conservation (How much should be caught?) and allocation (Who gets to catch it?) decisions. This often leads to short-term allocation considerations overriding long-term conservation imperatives needed to ensure a sustainable fishery. Thus, councils avoid making tough decisions about limiting who can fish and how much they can catch.

The Commission’s investigation has iden- tified no other publicly owned American natu- ral resource managed through a process that allows resource users to decide how much of the public resource can be taken for private benefit. In the majority of fisheries examined by the Commission, this system has created nearly insurmountable obstacles to managing the resource for sustainable catches and for the broad public benefit over the long term.

Third, the law codified an open access, laissez-faireapproach. This fosters a reactive management philosophy that focuses more on day-to-day fishing needs than on restoring and maintaining sustainable resources for the future. The emphasis on producing commer- cial commodities overwhelms the kind of management that would more effectively limit the taking of commercial species and protect noncommercial species and critical habitats.

The current system also relies on scientific uncertainty to justify risk-prone decisions (Rosenberg et al., 1993; Hanna, 1998). Fishery after fishery has foundered on the shoals of this approach.

Today, productive ecosystems, and the fishing industries and communities that depend upon those ecosystems, are in a dan- gerous state of decline. Increased scientific understanding has revealed that fishing can profoundly affect biodiversity and marine ecosystems. This knowledge is shifting societal attitudes about exploitation of living marine resources. An adjustment in the principles, laws, and institutions governing marine fish- eries is required to reflect the needs and understanding of this new era."

The Clean Water Act of 1972 (CWA)

The primary federal statute controlling water pollution by requiring, wherever attainable, that navigable waters of the United States be made “fishable and swimmable.” Provided for the establishment of national water quality standards for pollutants, by requiring that polluters obtain and abide by the terms of a pollution discharge permit, and by establishing baseline technology that must be used to treat discharges of pollutants.

The Coastal Zone Management Act of 1972 (CZMA)

Established a voluntary program under which coastal states and territories could receive federal funding and technical assistance to develop programs to manage growth and development in coastal areas that is compatible with protection of natural resources.

The Endangered Species Act of 1973 (ESA)

Covers both terrestrial and aquatic species. The ESA prohibits the killing, injury, or harassment of species that are in danger of extinction. Also provides for the protection of habitat critical to the survival of endangered species and requires federal agencies whose actions are likely to jeopardize a listed species to consult with the appropriate authority (Dept. of the Interior or Commerce) regarding alternatives to the proposed action.

The Marine Mammal Protection Act of 1972

Generally prohibits the killing or harassment of marine mammals in U.S. waters or by U.S. citizens on the high seas. It provides for limited take of marine mammals for subsistence purposes by Alaska Natives and for take incidental to other activities, such as fishing. Its management and recovery actions focus on maintaining sustainable populations of marine mammals.

The Ocean Dumping Act of 1972

Enacted to regulate the disposal of wastes in U.S. marine waters; gives the U.S. Environmental Protection Agency primary responsibility for regulating the disposal of wastes at sea.

The Oil Pollution Act of 1990

Established strict liability for damages resulting from oil spills, broadened the categories of compensable damages, increased civil penalties for negligent discharges of oil, required measures to prevent oilspills, and required preparedness for oil-spill cleanup.

Recommendations

1. Enact a National Oceans Policy Act (NOPA)

Require federal, state, and territorial agencies to protect, maintain, and restore marine and coastal ecosystems, and reorienting national and regional decision-making bodies to these ends.

2. Establish regional ocean ecosystem councils

Should consist of appropriate federal, state, and tribal representatives. These councils should be charged with developing and overseeing implementation of enforceable regional ocean governance plans to carry out the national policy to protect, maintain, and restore marine ecosystems.

3. Establish a national system of marine reserves

Purpose: to protect marine ecosystems, preserve our national ocean treasures.

4. Establish and independent national oceans agency (outside the Department of Commerce).

Would address the national interest in the oceans and atmosphere; should consolidate under one roof as many federal ocean programs as is practical.

5. Establish a permanent interagency oceans council within the Executive Office of the President.

Membership should be specified by law to include the heads of federal departments or agencies whose activities have a significant effect on the oceans. Council duties would include coordinating and overseeing agency implementation of the National Ocean Policy Act, resolving interagency disputes regarding NOPA implementation, and coordinating and certifying agency ocean budgets to address the national ocean policy. A position of national oceans adviser should be established within the Executive Office of the President.

Source: Pew Oceans Commission