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Review of U.S. Ocean and Coastal APPENDIX 6 to the Final Report REVIEW OF U. S. O CEAN AND COASTAL LAW THE EVOLUTION OF OCEAN GOVERNANCE OVER THREE DECADES You may electronically download this document from: http://www.oceancommission.gov This document may be cited as follows: Review of U.S. Ocean and Coastal Law The Evolution of Ocean Governance Over Three Decades Appendix 6 to An Ocean Blueprint for the 21st Century Final Report of the U.S. Commission on Ocean Policy Washington, D.C., 2004 ISBN#0–9759462–7–7 Appendix 6 Review of U.S. Ocean and Coastal Law PREFACE The Oceans Act of 2000 (Pub. L. 106-256) charged the U.S. Commission on Ocean Policy with making recommendations for a coordinated and comprehensive national ocean policy to promote the protection of life and property, responsible stewardship of ocean and coastal resources, protection of the marine environment, prevention of pollution, enhancement of maritime commerce, expansion of human knowledge of the environment and the role of the oceans in climate change, investment in technologies to promote energy and food security, close cooperation among government agencies and the private sector, and preservation of U.S. leadership in ocean and coastal activities. To carry out this broad mandate, among other reviews and assessments required by the Act, Section 3(f) directed the Commission to include in its final report: A review of the cumulative effect of Federal laws and regulations on United States ocean and coastal activities and resources and an examination of those laws and regulations for inconsistencies and contradictions that might adversely affect those ocean and coastal activities and resources, and recommendations for resolving such inconsistencies to the extent practicable. Such review shall also consider conflicts with State ocean and coastal management regimes. The Commission’s final report, An Ocean Blueprint for the 21st Century, addresses virtually all of those issues throughout its 31 chapters and over 200 recommendations. Many of its findings and recommendations are based on an assessment of the effect of over three decades of federal laws and regulations on the current state of the nation’s marine resources. Much of the background for that assessment is contained in this Appendix, which provides a descriptive review of ocean and coastal laws—the key governing statutes and selected issues that have evolved since the release of the Stratton Commission report—in a number of policy areas including ocean jurisdictions, coastal management, living and nonliving marine resources, water pollution, and marine operations. The Commission believes that an understanding of how the law has developed is essential in determining how to coordinate and improve the policies that guide the management and use of ocean and coastal resources, now and for future generations. To prepare this document, the Commission solicited the expertise of preeminent legal scholars, policy experts, and practitioners to assist in the research and review of U.S. ocean and coastal law. It was assisted in this effort by the Sea Grant Law Center at the University of Mississippi. As part of the overall process, draft chapters were circulated to reviewers from a wide range of sectors, including representatives from government, private industry, and nongovernmental organizations. Finally, this Appendix went through a rigorous internal review by the Commission, which bears full responsibility for its content. iii Appendix 6 Review of U.S. Ocean and Coastal Law ACKNOWLEDGEMENTS This appendix resulted from the research, collaboration, and input of a significant number of people in ocean and coastal related fields. The Commission thanks the researchers, contributors, assistants, and reviewers who generously offered their time and expertise. Researchers/Writers Donna R. Christie David Dickman Kristen M. Fletcher Richard G. Hildreth Poe Leggette Linda A. Malone Dimitri Seletzky Contributors John A. Duff Matthew Harrington Richard McLaughlin Amy J. McMaster Edmund B. Welch Sea Grant Law Center Kristen M. Fletcher William Hooper Stephanie Showalter Research/Technical Assistants Josh Clemons Sarah Elizabeth Gardner Edie King Waurene Roberson Reviewers Robert Abel Karl Gleaves Bob Moran Captain Joseph Ahern Jean Godwin Stacey Nathanson Craig Allen Montserrat Gorina-Ysern Sharonne O’Shea Betty Anthony Michael Goslinger Captain Robert Ross Martin Belsky Susan Hanna Harry Scheiber Mike Beck Margaret Hayes Suzanne Schwartz Eric Bilsky Timothy M. Hennessey Commander Susan Stewart Glenn Boledovich Ray Hilborn Margaret Strand Joan Bondareff Kathy Hurld Dennis Suszkowski Dennis Bryant Casey Jarman Craig Vogt Gene Buck David Kaiser Dawn Volk William Burke Mary Hope Katsouros Robert Wayland Doug Burnett Tim Keeney Sarah Chasis Commander Scott Kenney John R. Coon Lauriston King Walter Cruickshank Milo Mason Tim Eichenberg Miriam McCall Tom Fry Jim McCallum iv Appendix 6 Review of U.S. Ocean and Coastal Law CONTENTS Chapter 1: Setting the Stage 1 Introduction 1 Challenges for Ocean and Coastal Law 2 A Complex Mosaic of Legal Authorities 2 Overlapping Jurisdictions, Isolated Issues 2 Addressing New and Emerging Uses 3 International Law of Ocean Jurisdiction 3 Post-World War II Law of the Sea 4 Ocean Jurisdictional Zones 5 Some Confusing Jurisdictional Terminology 10 U.S. Federal and State Jurisdiction 12 Establishment of State Seaward Boundaries 12 Imposing Environmental Responsibilities on Federal Agencies: the National Environmental Policy Act 14 Chapter 2: Coastal Management 17 Introduction 17 Governing Statutes 17 Coastal Zone Management Act 17 National Flood Insurance Act 19 Coastal Barrier Resources Act 19 Selected Issues 20 State Coastal Management Program Development, Approval, and Review 20 CZMA Federal Consistency Requirement 21 Regulation of Coastal Development 27 Coastal Management and the Takings Issue 28 Public Access to Beaches and Shores 29 Chapter 3: Living Marine Resources 31 Introduction 31 Governing Statutes 31 Magnuson-Stevens Fishery Conservation and Management Act 31 Marine Mammal Protection Act 34 Endangered Species Act 37 Selected Issues 40 State and Federal Jurisdictional Issues and Native American Rights 40 Habitat Protection 44 Consultation in Marine Resources Management 46 Managing the Allocation of Fishery Resources 48 Management of Take under the MMPA and ESA 54 Regulation of Take under the ESA 57 Fishery Interactions with Marine Mammals 59 International Issues 62 Treaties 62 Meeting International Responsibilities and Implementing Federal Laws 63 v Appendix 6 Review of U.S. Ocean and Coastal Law Chapter 4: Ocean and Coastal Pollution from Land-based Sources 69 Introduction 69 Governing Statutes 69 Clean Water Act 69 Coastal Zone Act Reauthorization Amendments of 1990 73 Clean Air Act 74 Farm Bill Conservation Programs 76 Ocean Dumping Act 77 Comprehensive Environmental Response, Compensation, and Liability Act 78 Resource Conservation and Recovery Act 79 U.S./Canada Great Lakes Water Quality Agreement 80 United Nations Convention on the Law of the Sea 81 Selected Issues 82 Nonpoint Source Pollution 82 Point Source Pollution 87 Atmospheric Deposition 90 Chapter 5: Fuels, Minerals, and Energy Production from the Ocean 93 Introduction 93 Historical Background 93 Overview of Mineral and Energy Resources 94 Governing Statutes 95 Submerged Lands Act 95 Outer Continental Shelf Lands Act 96 Clean Water Act 102 Oil Pollution Act 103 Clean Air Act 104 Statutes Protecting Living Marine Resources 105 Deep Seabed Hard Mineral Resources Act 106 Ocean Thermal Energy Conversion Act 107 Rivers and Harbors Act 108 Selected Issues 109 Application of Mineral Leasing Authority to Seabed off the Territories and Possessions 109 Development of Non-Mineral Sources of Energy within the Exclusive Economic Zone 109 Offshore Oil and Gas Development 110 Bilateral/International Issues: the Western Gap 112 Chapter 6: Other Uses of Offshore Federal Waters 115 Introduction 115 Selected Governing Statutes and Related Issues 115 Submerged Cultural Resources in the Oceans 115 National Marine Sanctuaries and Other Marine Protected Areas 121 Deepwater Ports 123 Bioprospecting 126 Artificial Reefs 127 vi Appendix 6 Review of U.S. Ocean and Coastal Law Chapter 7: Marine Operations 131 Introduction 131 The Role of International Law and Standards in Marine Operations 131 Coast Guard Role in Regulating Marine Operations 136 Governing Statutes and International Agreements 137 Marine Safety and Security: International Treaties to which the United States is Signatory 137 Marine Safety and Security: Federal Governing Statutes 141 Marine Environmental Protection: International Treaties to which the United States is Signatory 147 Marine Environmental Protection: Federal Governing Statutes 152 Selected Issues 162 Federal versus State Regulation of Marine Operations 162 Uniform National Standards versus Clean Water Act National Pollutant Discharge Elimination System Permitting for Vessel Discharges 164 Problems in National Implementation of International Vessel Pollution Requirements 165 Jurisdiction over Enforcement of Marine Operations in Coastal Zones 168 Chapter 8: Conclusion 171 vii Appendix 6 Review of U.S. Ocean and Coastal Law CHAPTER 1 SETTING THE STAGE INTRODUCTION Like the oceans themselves, the Nation’s marine interests are vast, complex, composed of many critical elements, and not susceptible to simplicity of treatment. Realization and accommodation of the Nation’s many diverse interests require a plan for national action and for orderly development of
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