30 ELR 10343 | Environmental Law Reporter | copyright © 2000 | All rights reserved

The Coral Reef Task Force: Protecting the Environment Through Executive Order

Robin Kundis Craig is an Assistant Professor of Law at Western New England College School of Law. Professor Craig received her J.D. in 1996 from the Lewis & Clark School of Law, her Ph.D. in English Literature in 1993 from the University of California, and her M.A. in Writing About Science in 1986 from the Johns Hopkins University. Professor Craig can be contacted through e-mail at rcraig@llama.lnet.wnec.edu or the Internet at http://www.law.wnec.edu/faculty/facultypages/craig/default.html.

[30 ELR 10343]

Coral reefs are some of the most biologically diverse and economically productive ecosystems in the world, and there are approximately 4.2 million acres of coral reefs within the jurisdiction of the United States,¹ located off the coasts of Florida, Hawaii, Texas, Louisiana, Puerto Rico, the U.S. Virgin Islands, Guam, the Northern Mariana Islands, American Samoa, and various other American-held islands in the South Pacific.² However, most of these reefs are suffering from environmental degradation. In 1998, the World Resources Institute concluded:

Most United States reefs are threatened. Almost all the reefs off the Florida coast are at risk from a range of factors, including runoff of fertilizers and pollutants from farms and coastal development. Close to half of Hawaii's reefs are threatened, while virtually all of Puerto Rico's reefs are at risk.³

Nevertheless, Congress has so far enacted no comprehensive legislation to protect the nation's coral reefs,⁴ although particular reefs have received some protection through the various federal statutes that create protected natural areas such as National Parks and National Wildlife Refuges.⁵ In the face of this congressional silence, on June 11, 1998, President Bill Clinton signed Executive Order No. 13089,⁶ which requires all federal agencies to protect coral reefs and created the U.S. Coral Reef Task Force, co-chaired by the Secretaries of the U.S. Departments of the Interior (DOI) and of Commerce (DOC). By November 1999, the Task Force had met three times and drafted a National Action Plan to Conserve Coral Reefs,⁷ which it expects to finalize in February 2000. The National Plan's main goal is an interconnected system of coral reef Marine Protected Areas (MPAs) that would regulate use of the coral reef ecosystems of the United States through marine zoning, based on accurate mapping and cutting-edge scientific research.

This Article first describes coral reefs and recounts the federal government's prior attempts to protect them. The Article then discusses Executive Order No. 13089 and the Coral Reef Task Force's operations so far. It concludes that by cobbling together existing federal statutory authority and enlisting key coral reef states as members, the Coral Reef Task Force has produced a National Plan that may prove workable without additional comprehensive federal legislation. Nevertheless, neither Executive Order No. 13089 nor the National Plan are directly enforceable, and the Coral Reef Task Force lacks a source of direct funding, rendering its coral reef protection plan vulnerable to changes in agency and state priorities and in the legislation that the Task Force currently relies upon.

I. Coral Reefs: The Basics

Coral reefs are some of the oldest ecosystems on earth.⁸ They "first appeared in the Mesozoic era some 225 million years ago and some living coral reefs may be as much as 2.5 million years old."⁹ In addition, coral reefs are some of the most biologically diverse ecosystems on earth, comparable to rain forests for sheer species variety. "Although they occupy less than one quarter of one percent of the marine environment, coral reefs are home to more than a quarter of all known marine fish species."¹⁰ "About 4,000 species of fish and 800 species of reef-building corals have been described to date,"¹¹ and coral reefs and their associated mangrove and seagrass systems provide habitat for uncounted species of mollusks and crustaceans, many of which are important sources of food, fisheries income, specimens for the aquarium [30 ELR 10344] trade, and medicines.¹² "According to one estimate, reef habitats provide humans with living resources (such as fish) and services (such as tourism returns and coastal protection) worth about $ 375 billion each year."¹³

Unfortunately, coral reefs are also some of the most fragile ecosystems in the world. A reef is actually a colony of coral polyps—tiny animals related to jellyfish and anemones.¹⁴ The hard structure of the reef comes from the calcium carbonate skeletons that the polyps secrete.¹⁵ Reef-building corals grow most often in warm, tropical waters—some of the most nutrient-deprived ocean waters that exist.¹⁶ Indeed, underwater visibility is generally spectacular in tropical seas largely because very few plankton—tiny plants and animals that populate more nutrient-rich waters of the world's oceans—can exist in those watery deserts. Although coral polyps do "fish" for the few plankton that exist in tropical seas, they thrive in this ocean environment because of their symbiotic relationship with algae. Each coral polyp contains tiny cells of algae, a chlorophyll-containing plant.¹⁷ Like all green plants, the algae can convert sunlight into food, which the polyp then uses to help sustain itself.¹⁸

Because reef-building coral depend on their internal algae, and those algae in turn depend on sunlight, healthy reefs require clear water.¹⁹ In addition, because light does not penetrate very deep into seawater, coral reefs are usually found in relatively shallow water fairly close to shore—and close to dense human populations. According to recent estimates, "almost half a billion people—8 percent of the total global population—live within 100 kilometers of a coral reef."²⁰ As a result, coral reefs are subject to a wide variety of land- and sea-based anthropogenic stresses, including shore development; pollution and sediment runoff from shores and rivers; ship collisions and grounding; vessel anchoring; discharges of oil and other chemicals from ships; overfishing; destructive fishing techniques such as blasting, bleaching, or poisoning; collection of fish and the coral itself for aquariums and coral for jewelry; and physical harm from tourists and divers.²¹

Florida and Hawaii contain the two largest reef systems in the United States and provide good examples of how human stressors can damage reef systems. The coral reefs in the Atlantic Ocean off the coast of Florida make up "the planet's third largest barrier reef system,"²² "stretching 360 sq. km from south of Miami to the Dry Tortugas,"²³ and there are "significant coral reefs located off Hawaii."²⁴ "Visitors spend about $ 1.2 billion annually in the Florida Keys . . ., where the reef tract is a primary attraction, and coral reefs in Hawaii are central to a $ 700 million marine recreational industry . . . ."²⁵ "The value of reef fisheries off the Florida Keys and Hawaii is estimated at $ 48.4 and $ 20 million, respectively . . . ."²⁶

Unfortunately, "the coral reefs of the Florida Keys exemplify the complexity of threats to reef sources."²⁷ Some threats are natural.²⁸ For example, the Florida Keys "naturally lie near the temperature limits for reef building" and thus have been damaged when Florida winters are unseasonably cold.²⁹ They have also been repeatedly subject to bleaching events and disease, and "Saharan dust has been implicated as an origin of nutrients and possibly disease spores during El Nino years."³⁰ More significant and continual, however, are the human-caused stresses to these reefs, including the polluted waters from Florida Bay; nutrients washed to sea from human activities, such as agriculture; Mississippi River pollution; and direct physical damage from boating, fishing, and diving.³¹

The Hawaiian reef system is in better shape, largely because "over 80 percent of reefs in Hawaii lie among the northwest Hawaiian Islands, stretching 1300 miles from Kauai to Kure Atoll"³²—that is, north and west of the islands [30 ELR 10345] that most tourists visit. However, the reefs in the windward southeastern Hawaiian Islands suffer from many of the same problems as the Florida reefs, including agricultural development and associated sedimentation runoff and impacts from the military and tourism.³³ "However, the most serious threats relate to rapid population growth and urbanization, leading to sewage discharges, additional construction, overuse, overfishing, industrial discharges, and port development and operations."³⁴ These threats are particularly potent in terms of biodiversity: About 25 percent of the fish and other animals that live in the reefs off the eight main islands (Oahu, Maui, Hawaii, Kauai, Lanai, Molokai, Niihau, and Kahoolawe) are endemic—that is, species found nowhere else in the world.³⁵

Because of their sensitivity to a wide variety of environmental factors, coral reefs can serve as indicators of how healthy the oceans and coastal areas are in general. Conversely, protection of coral reefs can help ensure that a wide variety of resources—land, rivers, coastal zones, and deep ocean—are managed sustainably, improving the environmental quality of extensive geographical areas. Comprehensive protection of coral reefs requires not only regulation of ocean water quality but also regulation of inland water quality and coastal and upstream land use.

II. U.S. Efforts to Protect Coral Reefs

A. The International Coral Reef Initiative and House Concurrent Resolution 8

Despite its numerous coral reef holdings, the U.S. government did little to directly protect coral reefs until 1992. In March of that year, Reps. James Scheuer (D-N.Y.), Tom Lewis (R-Fla.), Dante Fascell (D-Fla.), George E. Brown Jr. (D-Cal.), and Dennis Hertel (D-Mich.) introduced a bill that would have set "a national policy to promote the sustainable use of coral reef ecosystems and the biological resources associated with them" and would have established "a program of environmental research, monitoring, and public education relating to coral reef ecosystems."³⁶ The sponsors already recognized the value of coral reefs and could identify their anthropogenic stressors, citing "pollution, terrestrial runoff, under-regulated trade in coral products, over-exploitation of fisheries, and anchor damage" as significant problems.³⁷ However, the bill was not enacted.

More sustained efforts came in 1994, when representatives of eight countries—the United States, Japan, Australia, France, Jamaica, the Philippines, the United Kingdom, and Sweden—and several nongovernmental organizations, development banks, and United Nations organizations formed a partnership called the International Coral Reef Initiative (ICRI), which the United States officially joined in December 1994.³⁸ The ICRI is neither a governmental nor a funding organization but rather seeks to promote coral reef conservation through international cooperation, research, education, and outreach and through the Global Coral Reef Monitoring Network.³⁹ The U.S. Department or State and the National Oceanic and Atmospheric Administration (NOAA) coordinate the coral reef-related activities of the United States for the ICRI.⁴⁰ In addition, the United States served as Secretariat of the ICRI from 1994 until 1996,⁴¹ during which time ICRI held its first workshops⁴² and passed its Call to Action.⁴³

The United States also has its own Coral Reef Initiative (USCRI), which is "a partnership between Federal agencies and State, territorial, commonwealth, and local governments, nongovernmental organizations, and commercial interests to design and implement additional management, education, monitoring, research, and restoration efforts to conserve coral reef ecosystems for the use and enjoyment of future generations."⁴⁴ A key element of the USCRI is the U.S. Islands Coral Reef Initiative, which covers about 95 percent of the U.S. coral reefs.⁴⁵ In 1997, the U.S. Islands Coral Reef Initiative met, with representatives from all of the U.S. Islands, for a workshop on methods to implement the USCRI.⁴⁶ However, the USCRI is cooperative, not regulatory.

In 1996, the ICRI proposed that 1997 be designated "The International Year of the Reef"⁴⁷ in order "to promote public awareness of issues pertaining to coral reef ecosystems, through a year-long campaign of briefings, workshops, and related initiatives."⁴⁸ As part of the festivities, Rep. Jim Saxton (R-N.J.) and Rep. Neil Abercrombie (D-Haw.) introduced,⁴⁹ and Congress passed,⁵⁰ House Concurrent Resolution 8, which officially recognized the importance of coral reefs to the United States and to the world. The resolution clearly expressed "Congressional commitment to maintaining [30 ELR 10346] healthy and stable coral reef ecosystems,"⁵¹ recognizing that "coral reefs are among the world's most biologically diverse and productive marine habitats" and that "healthy coral reefs provide the basis for subsistence, commercial fisheries, and coastal and marine tourism . . . ."⁵² However, it enacted no specific measures to help coral reefs.

B. Attempts at Legislation

About six months after introducing House Concurrent Resolution 8, Representatives Saxton and Abercrombie introduced a bill, H.R. 2233, to enact the Coral Reef Conservation Act of 1997.⁵³ The bill contained no enforceable requirements; instead, it would have funded the U.S. Secretary of Commerce in providing grants to "projects for the conservation of coral reefs . . . ."⁵⁴ The bill also called for Congress to provide $ 1 million per year for five years to the Coral Reef Conservation Fund.⁵⁵ H.R. 2233 was reported to the whole House⁵⁶ but failed to achieve the necessary support to pass.⁵⁷

The next year, 1998, was widely proclaimed the "Year of the Ocean."⁵⁸ In another attempt to protect ocean resources, Representative Saxton, along with Rep. Wayne Gilchrest (R-Md.) and Rep. Brian Bilbray (R-Cal.), introduced a bill called the Oceans Act of 1998.⁵⁹ While not directly protective of coral reefs, the Oceans Act of 1998 would have established a Commission on Ocean Policy⁶⁰ and required Congress and the President to follow the Commission's recommendations to "develop and propose a coordinated, comprehensive, and long-range national policy for the responsible use and stewardship of ocean and coastal resources for the benefit of the United States, including a plan to meet resource monitoring and assessment facilities and equipment requirements of Federal ocean and coastal programs."⁶¹ The Act would have also required the President to report to Congress every two years on existing federal ocean and coastal programs.⁶² The House passed the bill and sent it to the Senate, but the 1998 regular session adjourned without the bill being carried over.

C. Executive Order No. 13089

On June 11, 1998, while the Oceans Act was making its way through Congress, President Bill Clinton directly addressed coral reef ecosystems through Executive Order No. 13089, "Coral Reef Protection."⁶³ Executive Order No. 13089 has two purposes. First, "all Federal agencies whose actions may affect U.S. coral reef ecosystems" must affirmatively act to become aware of and to protect the nation's coral reefs.⁶⁴ The Executive Order thus places federal agencies under an affirmative obligation to not only avoid harming coral reefs within U.S. waters but also to protect and enhance those reefs, subject to only limited exceptions.⁶⁵ However, Executive Order No. 13089 also states that it "does not create any right or benefit, substantive or procedural, enforceable in law or equity by a party against the United States, its agencies, its officers, or any person,"⁶⁶ severely undermining its enforceability against recalcitrant agencies.⁶⁷

Second, Executive Order No. 13089 created the Coral Reef Task Force.⁶⁸ The Secretary of the DOI and the Secretary of DOC co-chair the Task Force, acting through the Administrator of NOAA.⁶⁹ The Task Force's overarching responsibilities are to "oversee implementation of the policy and Federal agency responsibilities set forth in this order" and to "guide and support activities under the U.S. Coral [30 ELR 10347] Reef Initiative."⁷⁰ In addition, the Task Force has four specific duties: (1) coral reef mapping and monitoring; (2) research; (3) conservation, mitigation, and restoration; and (4) international cooperation.⁷¹

The Task Force's conservation, mitigation, and restoration duties are the most extensive. Under the terms of Executive Order No. 13089, the Coral Reef Task Force "shall develop, recommend, and seek or secure implementation of measures necessary to reduce and mitigate coral reef ecosystem degradation and to restore damaged coral reefs."⁷² These implementation measures can include recommendations for new legislation, if the Task Force finds such legislation "appropriate."⁷³

The Coral Reef Task Force lost no time in acting. Its first meeting was in October 1998, less than four months after its creation.

III. The Coral Reef Task Force in Action

A. Meeting 1: October 1998

In its first meeting, the Coral Reef Task Force focused on organizing its efforts to implement Executive Order No. 13089. First, the Task Force invited the governors of American Samoa, Florida, Guam, Hawaii, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands to participate in the Task Force as full members,⁷⁴ thus embracing state and territorial participants as well as federal.

Second, the Task Force established five working groups designed around the specific duties that Executive Order No. 13089 assigned to it.⁷⁵ The five working groups are: (1) Water and Air Quality, led by the U.S. Environmental Protection Agency (EPA); (2) Coastal Uses, led by NOAA; (3) Ecosystem Science and Conservation, led by the DOI; (4) Mapping and Information Synthesis, led by the National Aeronautics and Space Administration (NASA); and (5) International, led by the State Department.⁷⁶ The Task Force further established that all of the Working Groups should address three themes: (1) public education and outreach; (2) management needs; and (3) standard setting and enforcement.⁷⁷

Finally, the Task Force made plans for its next meeting. At that second meeting, the Working Groups were to present an outline of priority actions in their topic areas needed to address coral reef issues,⁷⁸ including both immediate and long-term actions. Representatives of the island governors, led by Guam, agreed to "develop a statement defining a sustainable use of coral reefs . . . ."⁷⁹ Finally, Task Force members were to "summarize the authorities of their agencies relevant to coral reef management and conservation" and to "work with [the Council on Environmental Quality (CEQ)] and [the Office of Management and Budget (OMB)] to develop a budget cross-cut for implementation of the E.O."⁸⁰

B. Meeting 2: March 1999

As instructed, the Working Groups each presented draft recommendations for implementing Executive Order No. 13089 at the Coral Reef Task Force's second meeting.

1. The Water and Air Quality Working Group Draft Recommendations

The Water and Air Quality Working Group seeks to reduce coral reef degradation from water and air pollution.⁸¹ It largely recommended working within the existing statutory and agency programs to address four major threats to coral reefs: biological and physical degradation; sediments; nutrients; and other chemical and biological pollutants.

Biological and physical degradation arise from "environmentally insensitive development and land use practices" and more direct pollution.⁸² The Working Group turned to the Clean Water Act (CWA)⁸³ and the Clean Water Action Plan⁸⁴ to address this problem, but noted that standards for what kind of water quality coral reefs require had not been adequately developed.⁸⁵ The Working Group thus focused its attention on developing technical guidance for establishing biological, water quality, and physical criteria and standards to protect coral reefs.⁸⁶

Sediments arrive at coral reefs "through a wide variety of activities, including dredging, development, agriculture, and timber harvesting"⁸⁷ and can both smother the [30 ELR 10348] coral directly and reduce light penetration.⁸⁸ The Working Group again turned to the CWA as its primary source of legal authority for addressing sedimentation, pointing in particular to the dredge-and-fill permit system under CWA § 404⁸⁹ and the nonpoint source pollution control programs under CWA § 319.⁹⁰

Nutrients reach coral reefs "through sewage treatment plant and vessel sewage discharges, agricultural and residential lawn runoff, and air deposition from automobile and electric utility emissions."⁹¹ Nutrients can harm coral reefs by promoting the growth of free-floating algae, which can decrease the amount of light reaching the coral and reduce levels of dissolved oxygen.⁹² The Working Group relied heavily on CWA § 312,⁹³ which establishes performance standards governing sewage discharges from vessels and allows states to establish "No Discharge Zones," to protect coral reefs from nutrient sources.⁹⁴

Finally, the Working Group proposed to address "discharges of oil, garbage, and water ballast from vessels" through a variety of statutory authorities. The Act to Prevent Pollution from Ships,⁹⁵ for example, addresses discharges of oil, garbage, and "noxious liquid substances" from vessels.⁹⁶ Ballast water discharges, in turn, can introduce invasive species, and the U.S. Coast Guard is currently considering the effects of invasive species on coral reefs as it promulgates regulations to implement the National Invasive Species Act of 1996.⁹⁷

In keeping with its general reliance on the CWA, the Working Group also proposed to re-prioritize three CWA grant programs to favor coral reef protections.⁹⁸ To aid the § 319 nonpoint source management program, the U.S. Department of Agriculture "will provide technical, financial, and education assistance to private landowners in identified high priority watersheds for the implementation of best management practices to reduce or mitigate off-site impacts from nonpoint source pollution to coral reefs."⁹⁹

2. The Coastal Uses Working Group Status Report

In fulfilling its mission to develop "strategies to mitigate anthropogenic stressors on coral reef ecosystems,"¹⁰⁰ the Coastal Uses Working Group focused on three such stressors: fishing pressure; coastal development and shoreline modification; and vessel traffic.¹⁰¹ Like the Water and Air Quality Working Group, moreover, the Coastal Uses Working Group emphasized existing federal statutory authority and programs in making its recommendations.

The major threats to coral reefs from fishing pressures are: "(1) Overfishing, (2) Destructive Fishing Techniques, (3) Bycatch, (4) Aquarium species collection, and (5) Aquaculture."¹⁰² The Working Group noted that most of "the legislation needed to address overfishing and destructive fishing problems on the coral reefs is in place."¹⁰³ Instead, coordination and enforcement are the major obstacles to protecting the reefs.¹⁰⁴ Many of the Working Group's recommendations emphasized that coral reefs are integrated ecosystems that cross regulatory boundaries and that need integrated protection. For example, its first recommendation, which the Group considered a high-priority, long-term strategy, was to zone coral reefs and their associated habitats for appropriate uses, including "no take" zones.¹⁰⁵ It also recommended that the use of "no-take reef reserves" be expanded to protect "at least 5 percent of U.S. [30 ELR 10349] coral reefs by 2002."¹⁰⁶ Otherwise, the group recommended improvements for the fishing industry to lessen its impacts on coral reefs.¹⁰⁷

Coastal development threatens coral reefs through "(1) Dredging, (2) Port and Harbor Development, (3) Undersea Energy Extraction and Utility Siting, (4) Undersea Cable and Pipeline Siting, and (5) Shoreline Modification."¹⁰⁸ The Working Group noted that the U.S. Army Corps of Engineers already regulates and permits many of these kinds of activities under the CWA and that the Coastal Zone Management Act (CZMA)¹⁰⁹ requires federal agencies to review their activities for consistency with state Coastal Zone Management Plans.¹¹⁰ Moreover, EPA can review many Corps-issued permits, and the U.S. Fish and Wildlife Service (FWS) must comment on projects in U.S. waters that will affect fish and wildlife resources.¹¹¹ Nevertheless, the Working Group emphasized that this extensive regulation has not been carried out with an awareness of effects on coral reefs.¹¹² It made three recommendations to balance human economic expansion with the needs of coral reefs: (1) the use of growth management plans in ports and harbors near coral reefs¹¹³; (2) development of a clear plan, with specific guidelines, to encourage avoidance and mitigation for projects near coral reefs¹¹⁴; and (3) development of economic valuations of coral reefs in all regions, to be used in the cost-benefit analyses for individual activities in the coastal zone.¹¹⁵

Finally, vessel traffic problems include: "(1) Direct Vessel Impacts, (2) Recently Abandoned Ships, and (3) Vessel Pollution."¹¹⁶ As tourism and commercial shipping near coral reefs increase, the shallow, near-shore reefs are subject to increasing direct harm from boats, including propeller and anchor damage and direct collisions.¹¹⁷ In addition, grounded vessels can also release oil and other pollutants into the water near the reefs. Enforcement authority is available for reefs in National Marine Sanctuaries, National Parks, and National Wildlife Refuges,¹¹⁸ and the Oil Pollution Act of 1990 (OPA)¹¹⁹ gives the Coast Guard authority to respond to marine oil and hazardous materials spills.¹²⁰ Nevertheless, the Working Group recommended that the relevant agencies identify "hot spots"—areas of high recreational or commercial traffic and use and high risk of damage to coral reefs—and best management practices to address those risks.¹²¹ Moreover, the National Ocean Service, a division of NOAA, proposed to develop "an improved navigational chart that consists of a conventional chart, overlaid with boundaries noting important jurisdictional areas (such as marine sanctuaries or national parks), along with environmental data showing the location of coral reefs."¹²² Finally, the Working Group proposed a public education program and advocated increased prosecutions of civil natural resource damages claims for groundings.¹²³

3. The Mapping and Information Synthesis Working Group

The primary goal of the Mapping and Information Synthesis Working Group is increased knowledge. Its recommendations to the Coral Reef Task Force updated recommendations that grew out of a workshop held in March 1998 and jointly hosted by the U.S. Geological Survey's Coastal and Marine Geology Program and the University of Hawaii.¹²⁴ The Working Group identified four particular knowledge gaps regarding coral reefs¹²⁵: (1) "baseline information showing the regional distribution of America's coral reef habitats"; (2) improved "understanding of change induced by natural processes" in coral reefs, "both on historic and geological scales"; (3) understanding of "how coral reefs will respond to anthropogenic change"; and (4) interdisciplinary studies of coral reefs.¹²⁶

To improve baseline knowledge of coral reefs, the Working Group recommended combining existing databases and studies with field mapping to produce regional coral reef maps "that convey useful and accurate information [30 ELR 10350] about the reefs."¹²⁷ Information regarding the natural change to coral reefs is recorded in the corals' own exoskeletons, which chemically and physically chronicle "sea level change, temperature, water chemistry and physical oceanographic conditions, and sediment loading,"¹²⁸ much as tree growth rings can reveal historical weather patterns on land. As a result, the Working Group recommended taking core samples of reefs and dating reefs as well as estimating the internal and external forces that affect reefs.¹²⁹

Knowledge of the effects of anthropogenic stresses on coral reefs requires the same basic information as natural change. However, the Working Group also considered "new field techniques and monitoring equipment . . . essential for documenting the effects of environmental stress."¹³⁰ It recommended measurements of sedimentation, algae increases, changes in coral cover, wave conditions, and the origin and travel patterns of algae and disease spores on ocean currents.¹³¹

All of this information, moreover, must come through interdisciplinary cooperation. The Working Group noted that several federal agencies "have programs and responsibilities related to coral reef habitats" and expertise that could be applied to coral reef investigations.¹³² However, it also recommended partnerships with state agencies, university researchers, and private and nonprofit organizations.¹³³

Finally, the Working Group submitted the final draft of a coral reef mapping strategy,¹³⁴ which would result in "comprehensive digital coral reef ecosystem maps for all States, Commonwealths, Territories, and Freely Associated States of the U.S. in seven years."¹³⁵ The strategy starts by finishing maps for Puerto Rico, the Virgin Islands, and the Florida Keys, then progressively works through the Pacific reefs.¹³⁶ By the end of the March 1999 meeting, the entire Coral Reef Task Force had recommended that "a comprehensive effort to map coral reefs for all U.S. waters be initiated" and asked the Working Group to develop a more detailed mapping plan.¹³⁷ In the interim, the Working Group was to draft coral reef maps for Puerto Rico and the U.S. Virgin Islands and some of the Pacific coral reefs and to set up an internet for group work products.¹³⁸

4. The Ecosystem Science and Conservation Working Group

The Ecosystem Science and Conservation Working Group set out to design a comprehensive system for studying, monitoring, and protecting the nation's coral reefs. It focused on four interrelated areas to achieve that goal: research and monitoring; a national system of MPAs for coral reefs; management plans for those MPAs; and the Hawaii Coral Reef Emergency Response Team.

Like the Coastal Uses Working Group, the Ecosystem Science Working Group recognized that "there is no nationally coordinated effort to determine the status of coral reefs, the causes of coral reef decline, or the impact of natural and anthropogenic stress on coral reef and associated ecosystems."¹³⁹ To address this need, the latter group proposed to: "(1) initiate and implement a standardized, nationally coordinated coral reef monitoring program; (2) establish regionally-focused, long-term (five-year) research programs in the Atlantic and Pacific; and (3) create a center for coral reef pathology to improve coral reef disease and bleaching research."¹⁴⁰

More generally, the Working Group also emphasized the need for coral reef research to focus on ecosystem and regional issues and long-term change rather than on the small-scale processes of individual reefs.¹⁴¹ Unlike the other working groups, moreover, the Ecosystem Science Working Group incorporated natural coral reef stressors into the research project, singling out bleaching and disease as areas needing further study.¹⁴²

A national system of MPAs for coral reefs would "support long-term sustainable use and conservation" of the resources by safeguarding the entire ecosystem and allowing "public education and outreach on the social, economic and ecological benefits of marine and coastal resource protection."¹⁴³ To build the system initially, the Working Group [30 ELR 10351] proposed that existing state, territorial, and federal MPAs be assessed regarding the types of reefs they protect and the level of protection given to identify gaps.¹⁴⁴ These gaps would then be filled on the basis of regional and national priorities.¹⁴⁵ The Working Group outlined a three-year plan for creating the integrated national system, culminating in legislative and regulatory revisions and the implementation of a performance assessment system.¹⁴⁶ Moreover, to promote effective management, the Working Group recommended that each coral reef MPA should have a management plan, which should be periodically evaluated and revised.¹⁴⁷ Finally, "[a] substantial portion of any coral reef protection area should be set aside as marine wilderness, free from any resource exploitation—at least 20 percent."¹⁴⁸

The state of Hawaii has a large number of coral reefs, but no one agency, state orfederal, currently has the ability "to adequately and quickly assess and minimize the major impacts" of increasing human activity near the reefs. The Working Group proposed "to create and equip the first active response team specifically designed for coal reef ecosystems,"¹⁴⁹ and it had already laid the framework for the response team by the March 1999 meeting and planned to outfit and initiate the team by June 1999.

5. The International Working Group

The International Working Group's duties are "to assess the U.S. role in international trade and protection of coral reef species" and to "implement appropriate strategies and actions to promote conservation and sustainable use of coral reef resources worldwide."¹⁵⁰ The group identified eight key international coral reef issues for which it recommended action.

First, the Working Group noted that "international trade in corals, reef fish and other species is driving destructive and unsustainable fishing practices, particularly in the Indo-Pacific region."¹⁵¹ This issue is particularly relevant to the United States because almost 80 percent of the international trade in coral, both live and dead, and 50 percent of the trade in coral reef fish for aquariums are imported into the United States.¹⁵² As a first step in addressing this problem, the Working Group recommended "a comprehensive examination of the trade in coral and coral reef species from the perspective of a major importer."¹⁵³ Moreover, the Working Group also proposed draft legislation to strengthen domestic trade restrictions on coral reef products.¹⁵⁴

Second, the Working Group addressed the issue of destructive fishing practices such as blasting, cyanide poisoning, and the live-food fish trade.¹⁵⁵ It proposed having the U.S. Agency for International Development supplement its programs for coastal zone management to include programs to retrain fishers from destructive fishing practices, to give support to wild capture alternatives such as mariculture, and to support cyanide detection programs.¹⁵⁶

The Working Group's third issue was coral bleaching and the need for international coral monitoring.¹⁵⁷ The Working Group recommended increasing coordination of U.S. remote and on-site monitoring capabilities, strengthening the ICRI's Global Coral Reef Monitoring Network and Reef Check, and "focused policy development and research to identify response strategies [that] will address ecosystem scale and socio-economic impacts of coral bleaching."¹⁵⁸

In its fourth, fifth, and sixth issues, the Working Group identified particular regions of the world—South East Asia, the South Pacific, and the Wider Caribbean—that deserves particular attention.¹⁵⁹ Destructive fishing is particularly prominent in South East Asia, and the Working Group recommended actions to address the unsustainable trade in coral as well as the causes and consequences of severe coral bleaching.¹⁶⁰ The South Pacific, in contrast, is already subject to extensive U.S. influence and control, and its reefs are in better shape than reefs in the other two regions.¹⁶¹ Nevertheless, [30 ELR 10352] the Working Group recommended greater integration of the existing programs "to minimize destructive fishing practices, build capacity, improve marine education and training, support coral reef research and monitoring, and improve management of marine resources and protected areas," including possible Peace Corps involvement.¹⁶² Finally, the Wider Caribbean is subject to pollution, development, overfishing, poverty, and tourism problems.¹⁶³ The Working Group recommended using U.S. programs and "donor institutions" to help develop an integrated management strategy for the region.¹⁶⁴

Seventh, the Working Group recognized the need to integrate international reef protection efforts with the regional action plans of the United States.¹⁶⁵ As such, it proposed having the Coral Reef Task Force build on the early U.S. leadership role in the ICRI to become a "platform for targeted and coordinated U.S. support to ICRI and the conservation and sustainable use of coral reef resources worldwide."¹⁶⁶

Finally, the International Working Group emphasized that the United States needs to cooperate with the Small Island Developing States and with the Alliance of Small Island States, involving areas such as Barbados.¹⁶⁷ Such cooperation should have the twin aims of being responsive to the island states' "needs and priorities" and "represent U.S. government interests."¹⁶⁸

6. Actions Taken by the Entire Coral Reef Task Force

After hearing the Working Groups' recommendations, the Coral Reef Task Force passed four resolutions and identified several key actions for immediate implementation. The four resolutions all took the form of statements of support. First, recognizing that the United States is the world's largest importer of corals, the Task Force voted to support evaluating options to address the importation of coral and coral reef species and to "promote sustainable harvesting of traded coral reef resources."¹⁶⁹ Second, the Task Force supported the U.S. Islands Coral Reef Strategy as a priority for receiving new funds in Fiscal Year (FY) 2000.¹⁷⁰ Third, the Task Force supported "the Department of State's statement on coral bleaching and climate change."¹⁷¹ Finally, the Task Force voted to "support the Asia Pacific Economic Cooperative's resolution against destructive fishing practices, including dynamite fishing and cyanide fishing."¹⁷²

Otherwise, the Task Force indicated that information and coordination were the country's most pressing needs regarding coral reef protection. To improve information about coral reefs, the Task Force recommended "a comprehensive effort to map and assess the U.S. coral reefs in the Pacific" and a "coordinated coral reef monitoring program."¹⁷³ Recognizing that intergovernmental coordination was critical, the Task Force also committed itself to establishing "a coordinated network of coral reef protected areas, building on existing federal, state, territory and other sites and activities"; coordinating efforts among the various governments and other partners "to build emergency response capabilities and restore injured coral reefs"; and strengthening "local and regional efforts to protect coral reefs."¹⁷⁴ These recommendations would become the heart of a National Action Plan.

C. November 1999: The Draft National Action Plan to Conserve Coral Reefs

At its third meeting, the Coral Reef Task Force reached several more decisions regarding coral reef protection. Procedurally, the Task Force planned a special session in February 2000, after President Clinton released the budget for FY 2001.¹⁷⁵ Substantively, the Task Force took a number of limited actions directed at or in response to particular issues. For example, it asked "the Army Corps of Engineers to expand the educational outreach of its regulatory permit program under the Clean Water Act to include the islands and territories of the United States"¹⁷⁶ and recognized the newly signed Memorandum of Agreement between EPA and the Corps "concerning 'Special Emphasis Given to Coral Reef Protection Under the Clean Water Act, Marine Protection, Research, and Sanctuaries Act; River and Harbors Act, and Federal Project Authorities.'"¹⁷⁷ It also asked EPA to review sewage problems, particularly in the Virgin Islands and Puerto Rico, and report back at the next Task Force meeting.¹⁷⁸ The Task Force itself promised to establish "a formal Education and Outreach Group"¹⁷⁹ and "agreed to explore and develop guidelines for mariculture as it relates to coral reef ecosystems . . . ."¹⁸⁰

Finally, and most importantly, the Coral Reef Task Force adopted the Draft National Action Plan to Conserve Coral Reefs, which was subject to public comment until January 14, 2000,¹⁸¹ and which the Task Force plans to finalize at its February 2000 meeting.¹⁸² The National Plan is the culmination of the Task Force's efforts and consists of an integrated, prioritized reworking of the Working Groups' prior recommendations, complete with a timetable for implementation.

[30 ELR 10353]

The National Plan is organized around "two fundamental themes" and presents "thirteen conservation strategies for future actions."¹⁸³ In their prior reports and recommendations, all of the Working Groups had emphasized how little is known about coral reefs. In the Draft National Plan they made the need for knowledge a fundamental theme: understanding coral reef ecosystems.¹⁸⁴ The Draft National Plan establishes four strategies designed to increase baseline knowledge regarding the location and function of coral reefs: (1) the creation of "comprehensive maps of all U.S. coral reef habitats"; (2) "long-term monitoring and assessments of reef health and trends"; (3) "strategic research on threats to reef health"; and (4) the incorporation of "the human dimension into coral reef conservation strategies."¹⁸⁵

Mapping will take five to seven years and will result in both high resolution benthic maps and coastlines surveys and "large-scale, low-resolution maps of broad coral reef ecosystems."¹⁸⁶ Monitoring will begin with high value and high risk reefs and will end with "a nationally coordinated, longterm program to assess and monitor U.S. coral reef ecosystems," including "biennial reports on the State of American Coral Reef Ecosystems."¹⁸⁷ To implement the research strategy, NOAA and the DOI will sponsor five-year "ecosystem-level research programs in the Pacific and Atlantic oceans," beginning with a Pacific Coral Reef Regional Study.¹⁸⁸ In addition, EPA, NOAA, and the DOI will implement a Coral Disease Consortium ("contingent on available funding") at those agencies' existing laboratories.¹⁸⁹

New to the Draft National Plan—at least in any kind of integrated application—are actions to actively incorporate cultural differences into the knowledge base for coral reef protections. The Working Groups collectively recognized that many of the human-related stressors of coral reefs "stem from the social, cultural, and economic fabric of regional coastal communities. The socio-economic backdrop for coral reef conservation varies so widely among U.S. reef areas . . . that common threats may have different origins and solutions depending on where the problem occurs."¹⁹⁰ As a result, the Draft National Plan calls for developing "regional economic valuations of coral reef ecosystems" and for conducting "locally targeted socio-economic studies of high-risk anthropogenic threats and/or user conflicts in specific U.S. islands."¹⁹¹

Incorporating the human dimension into reef protection also promotes the Draft National Plan's second theme, which is to reduce the adverse impacts on coral reefs from human activities.¹⁹² Recognizing that the "most severe" threats to coral reef survival "stem directly from human activities,"¹⁹³ the Working Groups collectively focussed on eight primary threats: pollution; "over-fishing and over-exploitation of coral reef species"; destructive fishing practices; unsustainable harvest; dredging and shoreline modification; vessel grounding and anchoring; disease outbreaks; and global climate change.¹⁹⁴ The Draft National Plan establishes nine strategies to reduce these threats.¹⁹⁵

Legally, the Draft National Plan relies heavily on existing statutes and enforcement mechanisms to reduce human effects on coral reefs, particularly for the two strategies of reducing habitat destruction and reducing pollution. Thus, "while the nature and magnitude of human impacts varies tremendously among U.S. reefs, many are regulated and authorized under law and can, therefore, be controlled or mitigated using existing federal and state authorities and programs tailored to local needs."¹⁹⁶

Existing law is insufficient to support all of the coral reef protection strategies, however. For example, privately owned lands raise several enforcement issues, and the Draft National Plan relies on "voluntary implementation of conservation systems" to address human impacts from such property.¹⁹⁷ Voluntary cooperation and partnerships are also the mainstay of the plan's strategies to strengthen international activities to protect coral reefs¹⁹⁸ and to reduce impacts [30 ELR 10354] of international trade in coral reef resources.¹⁹⁹ The continuing need for such cooperation also underscores the Draft National Plan's public education strategy, which targets the decisionmakers and stakeholders as much as the general public.²⁰⁰

However, the Draft National Plan's primary strategy for reducing human impact on coral reefs is the creation of a coordinated network of MPAs that protect coral reefs through extensive use of marine zoning.²⁰¹ This new national network would nevertheless rely heavily on existing law, "employing marine zoning techniques using existing federal, state, and local authorities as a means to ensure the long-term viability of coral reef ecosystems through rigorously partitioned uses such as fishing, other resource extractions, tourism, etc."²⁰² The Working Groups view this network as "the main hope for the long-term conservation of important reef resources around the world"²⁰³ and expect that new MPAs will begin filling existing gaps in protection within two years.²⁰⁴

Marine zoning appears in many of the Draft National Plan's other strategies, as well. For instance, as part of reducing the impacts from extractive uses, the plan recommends that critical U.S. coral reef fisheries habitats be protected "by expanding the coverage of no fishing zones to include representative habitats, and through innovate zoning of specific uses throughout U.S. reef ecosystems."²⁰⁵ Similarly, in the international community, the Draft National Plan recommends that the Task Force "build capacity to manage and conserve reef ecosystems and their watersheds in the Wider Caribbean, the Pacific, South East Asia, East Africa, and Middle East regions . . . support the creation and management of coral reef Marine Protected Areas, particularly those that contain substantial ecological (i.e. no-take) reserves,"²⁰⁶ and encourage other countries to "develop and implement sustainable management plans" for their coral reef fisheries.²⁰⁷

In step with its emphasis on MPAs, the Draft National Plan emphasizes restoration of degraded reefs more than might have been expected from the March recommendations. The restoration strategy derives from the Task Force's recognition that coral reefs are old, slow-growing structures.²⁰⁸ While prevention of harm is clearly preferable, "reality requires that the stewards of these slow growing habitats also be prepared to actively restore reefs that are accidentally damaged or degraded."²⁰⁹ Reef restoration, however, is "a young science," and the Draft National Plan thus gives priority in this strategy "to evaluating past actions, transferring lessons learned as well as tools and techniques to a wide range of restoration practitioners, developing new approaches to restoration, and implementing pilot restoration activities over a broader range of degraded conditions."²¹⁰

To emphasize and support the Draft National Plan's focus on MPAs, the Task Force also adopted the Ecosystem Science and Conservation Working Group's document entitled "Coral Reef Protected Areas: A Guide for Management,"²¹¹ which was subject to public comment and review through January 3, 2000.²¹² The guide restructures many of this Working Group's prior recommendations into a checklist for managers of MPAs that contain coral reefs, and it "is intended to help such participants achieve the management objectives set forth in E.O. 13089."²¹³

The last way in which the Draft National Plan seeks to reduce human impacts on coral reefs is by improving government accountability and coordination. This strategy derives directly from Executive Order No. 13089's requirement that federal agencies avoid harming coral reefs.²¹⁴ To fulfill the President's directive, the Working Groups recommended that the Task Force:

[(1) e]ncourage federal and non-federal agency preparation and submission of Coral Reef Protection Implementation Plans; [(2) e]stablish a process for the public identification, and government response, on issues relating to federal agency actions and coral reef protection; [(3) r]eview annual agency reports of programs, policies and actions that have been implemented that affect the health of U.S. coral reefs; and [(4) d]evelop guidance for [30 ELR 10355] all federal agencies for the inclusion of coral reef protections in environmental documents prepared under the National Environmental Policy Act [(NEPA)].²¹⁵

The Coral Reef Task Force addressed the first three of these four recommendations for federal agency accountability by adopting a statement entitled Oversight of Agency Actions Affecting Coral Reef Protection,²¹⁶ submitted for public comment until January 3, 2000.²¹⁷ This oversight document requires members of the Task Force to present Coral Reef Protection Implementation Plans to the Task Force by June 11, 2000²¹⁸; allows members of the public who believe that a federal agency has violated Executive Order No. 13089 to complain to the Task Force²¹⁹; and requires each Task Force member to file annual reports describing the agency's implementation of coral reef protections.²²⁰

The public complaint procedures may prove to be the most intriguing part of the oversight document. Under these procedures, any person who believes that a federal agency is acting inconsistently with its coral reef conservation duties can submit a written statement to that effect to both the agency and the co-chairs of the Task Force.²²¹ Accused agencies that are members of the Task Force must respond in writing to the complaint and must give a copy of that written response to the co-chairs.²²² The Task Force may then "offer advice and counsel to facilitate resolution of issues under this section."²²³ However, the oversight document "does not create any right or benefit, substantive or procedural, enforceable in law or equity by a party against the United States, its agencies, its officers, or any person or Task Force Member."²²⁴ A test case of public complaint is already before the Task Force, because the Task Force agreed to refer a conflict between Puerto Rico and the U.S. Department of the Navy (Navy) over bombing on Vieques Island to the Navy in accordance with the oversight document's procedures.²²⁵

D. Addendum: March 2000: Final Adoption

As this Article was going to press, the Coral Reef Task Force met again to present its final National Action Plan to Conserve Coral Reefs²²⁶ to President Clinton and Vice President Gore. The final National Action Plan is almost identical to the draft plan and again emphasizes MPAs and marine zoning as the keys to protecting U.S. coral reefs. However, the final plan also emphasizes in its core principles—as the draft plan did not—"that scientific uncertainty shall not prevent taking precautionary measures as appropriate to protect coral reefs."²²⁷ The final plan also acknowledges that some MPAs for coral reefs already exist, and thus it frames its mission as "expanding and strengthening the U.S. network of coral reef marine protected areas"²²⁸ rather than creating such a system.

At the end of the March meeting, President Clinton endorsed the National Plan²²⁹ and included $ 26 million in his FY 2001 budget to implement it. Of this funding, NOAA will receive $ 16 million and the DOI will receive the remaining $ 10 million.²³⁰ This budget proposal represents an increase of $ 15.5 million for coral reef protection compared to the FY 2000 budget.²³¹ The President and the Coral Reef Task Force share a common goal of setting aside one-fifth of all U.S. coral reef holdings as completely protected marine reserves by 2010,²³² and the Task Force intends to have all U.S. coral reefs mapped by 2009.²³³

Although one of the goals of the National Plan is to protect coral reefs from pollution, environmental groups have expressed concern that the plan's MPA focus will leave some pollution problems unsatisfactorily resolved,²³⁴ and [30 ELR 10356] NOAA Administrator James Baker has reportedly suggested that threats to coral reefs from nutrient and chemical runoff might have to be addressed separately.²³⁵ In contrast, "fishing interests—both commercial and recreational—have been concerned about fishing bans" in the MPAs.²³⁶ On the whole, however, the National Plan to Conserve Coral Reefs has been hailed as "unprecedented" and "bold and visionary,"²³⁷ a good first step in extending federal protection to the nation's coral reefs. Moreover, the Coral Reef Task Force has emphasized that the National Plan should be viewed "as a dynamic road map for achieving the goals of the Executive Order," a "living document" that the Task Force intends to "revisit[], evaluate[], and update[] regularly as conditions on the world's coral reefs change—hopefully for the better."²³⁸

IV. Existing Mechanisms for Implementing and Enforcing Executive Order No. 13089 and the National Plan

A. Federal Agency Compliance With Executive Order No. 13089

Executive Order No. 13089 imposes an affirmative duty on federal agencies to use their resources, programs, and authority to protect coral reef ecosystems. However, federal courts are generally reluctant to enforce Executive Orders, viewing them as the internal administrative mechanisms of the executive branch.²³⁹ Most of the federal circuits agree that a private party cannot enforce an Executive Order against the subject agency unless: (1) the Executive Order itself creates a private right of action; and (2) the Executive Order has the force and effect of law because it is based in a direct delegation of legislative power from Congress.²⁴⁰ President Clinton cited to seven federal statutes in Executive Order No. 13089,²⁴¹ suggesting that he was at least attempting to rely on congressional delegations of power. Even if that authority were eventually upheld, however, the Executive Order explicitly states that it "does not create any right or benefit, substantive or procedural, enforceable in law or equity by a party against the United States, its agencies, its officers, or any person."²⁴² The Executive Order thus expressly disclaims having created any private right of action, rendering it unenforceable in most federal courts.

The Coral Reef Task Force, in adopting the oversight document, has addressed this lack direct enforceability to a certain extent by allowing for private complaints from interested parties. Nevertheless, the Task Force lacks the legal authority to create a private right of action enforceable at court, and, as discussed, the oversight document, like the Executive Order itself, disclaims any such effect.

Two other possible means of enforcing the Executive Order exist: the federal Administrative Procedure Act (APA)²⁴³ and NEPA.²⁴⁴ The APA generally gives persons "suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute," a cause of action in federal district court to review a final agency action,²⁴⁵ so long as the person seeks non-monetary relief²⁴⁶ and no other cause of action is available.²⁴⁷ The reviewing court can force agencies to act²⁴⁸ or set aside any agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."²⁴⁹ However, courts have no power to review agency actions when other statutes preclude judicial review or when the agency's action is committed to the agency's discretion by law.²⁵⁰

These last two exceptions have led many federal courts to hold that if an Executive Order does not itself create a cause of action against a noncompliant agency, review is not available under the APA, either.²⁵¹ The Ninth Circuit is the exception, recently declaring that it considers APA review available when the Executive Order in question does not preclude review and when it sets objective standards, even if the Executive Order does not affirmatively allow review.²⁵² Nevertheless, Executive Order No. 13089 explicitly disallows a private right of action, indicating that it precludes APA review of agency actions that affect coral reefs even under the Ninth Circuit's more liberal approach.

As a result, the most promising vehicle for ensuring that federal agencies seriously consider coral reef protections is NEPA, and the Task Force itself has sought guidance on how NEPA might help to effectuate Executive Order No. [30 ELR 10357] 13089.²⁵³ In NEPA, Congress made it the continuing responsibility of the federal government to use its resources and programs to promote sustainable and nondegrading use of the environment,²⁵⁴ and it imposed specific responsibilities on federal agencies to pursue that goal.²⁵⁵ The most important of these duties for enforcement purposes is that agencies must include a detailed environmental impact statement (EIS) "in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment."²⁵⁶ Although this requirement is only procedural—that is, it forces federal agencies to analyze the environmental effects of their major actions, but does not require an agency to choose the most "environmentally friendly" option²⁵⁷—plaintiffs can enjoin federal agency actions if the agency has not adequately performed the NEPA analysis.²⁵⁸

Litigation regarding the interactions of NEPA and Executive Orders is limited.²⁵⁹ Even so, two different views have emerged as to whether Executive Orders can expand the scope of a federal agency's environmental impact assessment. On one side, the Ninth Circuit has indicated that relevant environmental Executive Orders do affect how courts evaluate the sufficiency of an EIS under NEPA.²⁶⁰ On the other, the U.S. District Court of the Eastern District of Virginia recently refused to allow Executive Order No. 12898,²⁶¹ addressing environmental justice, to affect its review of an EIS' adequacy. Because NEPA itself did not require an environmental justice analysis, and because actions taken under the Executive Order were not subject to judicial review, the court found that it lacked jurisdiction to review the environmental justice portions of the EIS and refused to consider the plaintiff's arguments.²⁶²

Nevertheless, even if Executive Order No. 13089 does not itself impose new requirements on federal agencies' NEPA analyses, it certainly underscores the fact that federal agencies should be aware of and should address coral reef issues when their actions could affect coral reef ecosystems, i.e., that one type of environmental impact might be to coral reefs. In particular, Executive Order No. 13089 and the Task Force's efforts may alert both citizens and courts that physical distance alone should not relieve the agency of analyzing how that action might affect coral reefs, especially if the agency action could potentially pollute a waterway whose contents eventually bathe a coral reef ecosystem. Therefore, NEPA does provide a means for indirectly forcing federal agencies to comply with the spirit of Executive Order No. 13089 and for enjoining federal agency actions when the agency has not adequately considered coral reef issues.

B. Implementing the National Action Plan to Conserve Coral Reefs

Although Executive Order No. 13089 and the Task Force charged the Working Groups with considering whether new legislation was needed to protect coral reefs, the Draft National Action Plan instead relies on re-focusing existing federal statutory programs and authority to address coral reef issues. Collectively, the members of the Coral Reef Task Force have fairly comprehensive authority to establish MPAs, to protect coral reef species, and to regulate certain sources of pollution. Moreover, cooperation from state and territorial members could add control of land-based sources of pollution that otherwise escape direct federal regulation. Thus, even without considering state law, existing federal legislation would seem to be adequate, at least on paper, to allow the Task Force to implement the National Plan.

1. Legislation Related to Marine Protected Areas

The DOI and the DOC, the two chairs of the Coral Reef Task Force, have particularly strong existing statutory authority to create and regulate MPAs, including enforcement authority. The DOI already has jurisdiction over almost 1.8 million of the nation's 4.2 million acres of coral reefs,²⁶³ regulating them primarily as national wildlife refuges, through the FWS, and as national parks, national historic parks, and national monuments, through the National Park Service.²⁶⁴

The National Park Service Organic Act²⁶⁵ allows the Secretary of the Interior to set aside areas as national parks for "the common benefit of all the people of the United States."²⁶⁶ The areas to be so designated must meet criteria of national significance, suitability, and feasibility.²⁶⁷ National [30 ELR 10358] park designations can directly protect coral reefs. For example, the National Park of American Samoa, established in 1988, exists "to preserve and protect the tropical forest and archeological and cultural resources of American Samoa, and of associated reefs."²⁶⁸ Moreover, once a national park is designated, the Secretary must implement management plans to promote sustainable use of the area's resources.²⁶⁹ The Secretary also has broad authority to promulgate regulations for each national park, which are enforceable through fines and jail sentences.²⁷⁰

Two aspects of the National Park Service Organic Act potentially limit its free use to implement the coral reef MPA system. First, Congress has expressly required the Secretary to consider "themes, sites, and resources not already adequately represented in the National Park System,"²⁷¹ suggesting that there could be "too many" coral reef-related national parks at some point. Second, new studies of areas for potential inclusion in the National Park System require specific authorization from Congress, unless the Secretary spends less than $ 25,000,²⁷² limiting the ease with which federal agencies can use the Act to protect currently unprotected coral reefs. Nevertheless, the nine existing national parks with coral reefs testify to the Act's continuing utility to the Coral Reef Task Force.

The National Wildlife Refuge System Administration Act of 1966²⁷³ makes it the Secretary of the Interior's mission "to administer a national network of lands and waters for the conservation, management, and where appropriate, restoration of fish, wildlife, and plant resources and their habitats within the United States for the benefit of the present and future generations of Americans."²⁷⁴ The Act gives the Secretary broad authority in administering the National Wildlife Refuge System, including the power to accept donations, acquire lands, and issue regulations,²⁷⁵ and it prohibits any action that harms either the habitat or the animals within a refuge.²⁷⁶ Violations of either the Act or the regulations implementing it are punishable through fines and imprisonment.²⁷⁷

The Act establishes conservation of fish and wildlife as the priority for national wildlife refuges,²⁷⁸ followed by "compatible wildlife dependent recreational uses,"²⁷⁹ which include "hunting, fishing, wildlife observation and photography, or environmental education and interpretation."²⁸⁰ Thus, the Secretary must "ensure that the biological integrity, diversity and environmental health of the System are maintained for the benefit of present and future generations of Americans,"²⁸¹ but can allow new uses of a refuge if they are compatible with the purposes of the refuge.²⁸² Moreover, the Secretary must prepare conservation plans for each refuge.²⁸³ Therefore, the priorities, goals, and methods of the National Wildlife Refuge System Administration Act are directly complementary with the aims of the Coral Reef Task Force.

The DOC, in turn, implements the National Marine Sanctuaries Act.²⁸⁴ The Secretary of Commerce, acting through NOAA, can designate as a national marine sanctuary "any discrete area of the marine environment" if the Secretary finds that "the area is of special national significance due to its resource or human-use values," that the area needs protection, and that the area is manageable.²⁸⁵ The Secretary can then promulgate regulations to protect the sanctuary.²⁸⁶ Moreover, the Act makes it unlawful to interfere in any way with the conservation and management of the sanctuary²⁸⁷ and gives the Secretary considerable enforcement authority, including the authority to conduct searches and seizures and to issue civil penalties of up to $ 100,000 per violation.²⁸⁸ Finally, persons who destroy or injure sanctuary resources are liable for the response costs and damages, including interest.²⁸⁹

In addition to allowing more MPAs, the National Marine Sanctuaries Act could promote other of the Coral Reef Task Force's goals. For example, the Act requires the Secretary of Commerce to undertake research, monitoring, and education activities and to make the sanctuaries available for outside research, monitoring, and education.²⁹⁰ Moreover, it authorizes the Secretary to enter into cooperative agreements regarding the marine sanctuaries and to solicit monetary support for them.²⁹¹ Finally, the Secretary has authority to actively promote the marine sanctuaries through symbols, sponsorships, and marketing.²⁹²

Of the 12 existing National Marine Sanctuaries, five already protect areas with coral reefs, demonstrating the Act's potential relevance.²⁹³ However, financial authorization for the National Marine Sanctuaries Act expired in 1999.²⁹⁴ Reauthorizing legislation—the proposed Sanctuaries and [30 ELR 10359] Reserves Act of 1999²⁹⁵—has passed the House²⁹⁶ and has been referred to the Senate.²⁹⁷ The Act would reauthorize both the National Marine Sanctuaries Act for five more years²⁹⁸ and would incorporate the existing marine sanctuaries into a National Marine Sanctuary System.²⁹⁹ Moreover, the bill would expand protections for sanctuaries by forbidding people not only to sell sanctuary resources but also to purchase, import, or export them.³⁰⁰ However, the Act would also prohibit the Secretary from designating additional sanctuaries unless the Secretary "publishes a finding that—(A) the addition of the new sanctuary will not have a negative impact on the System"³⁰¹ and that sufficient funding is available to implement sanctuary management plans and complete site characterization studies within 10 years. Considering that currently "NOAA believes that only 31 percent of sanctuary sites have reached a 'baseline operational level,'" largely due to lack of funding,³⁰² this proposed limitation on designating National Marine Sanctuaries could, as a practical matter, severely undercut the National Marine Sanctuaries Act's continuing usefulness in protecting additional coral reefs.

2. Statutes That Protect Marine Species

Establishing MPAs is an effective way to protect coral reef ecosystems, but MPAs can also be bolstered through direct legal protection of particular imperiled coral reef species. The two key statutes in species protection again involve the two co-chairs of the Coral Reef Task Force. The Secretary of Commerce administers the Magnuson-Stevens Fisheries Conservation Act,³⁰³ which Congress enacted "to conserve and manage the fishery resources found off the coasts of the United States."³⁰⁴ The Act works on two fronts: control of foreign fishing in U.S. waters and fisheries management within those waters. The Act controls foreign fishing by excluding foreign fishing vessels from fishing within the U.S. Exclusive Economic Zone (EEZ) unless they have a permit or international agreements allow such fishing.³⁰⁵ Moreover, if foreign countries fail to cooperate with the United States by denying U.S. vessels fishing reciprocity or by failing to obey international agreements, the Secretaries of State and the U.S. Treasury can impose trade restrictions on the foreign country involved.³⁰⁶

To promote fisheries management, the Magnuson-Stevens Act both establishes national standards for fishery conservation and empowers regional councils to regulate particular fisheries. The national standards emphasize sustainable use of individual stocks of fish based on sound science and require, overall, that "conservation and management measures shall prevent overfishing while achieving, on a continuing basis, the optimum yield from each fishery for the United States fishing industry."³⁰⁷

At the regional level, the Act establishes eight regional Fisheries Management Councils,³⁰⁸ each of which works mainly to establish (and, as necessary, revise and amend) fishery management plans "for each fishery under its authority that requires conservation and management."³⁰⁹ The fishery management plans establish "conservation and management measures" that are "necessary and appropriate for the conservation and management of the fishery, to prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery."³¹⁰

To enforce these conservation measures, the Management Council or Secretary can: (1) require permits; (2) "designate zones where, and periods when, fishing shall be limited, or shall not be permitted, or shall be permitted only by specified types of fishing vessels or with specified types and quantities of fishing gear"; (3) establish limits on the catch or sale of the fish; (4) regulate fishing equipment; (5) incorporate state conservation measures; (6) establish a limited access fishery; (7) require monitoring and observers; and (8) "prescribe other such measures, requirements, or conditions and restrictions as are determined to be necessary and appropriate for the conservation and management of the fishery."³¹¹ Moreover, the Management Council may propose, and the Secretary may promulgate, regulations to enforce the management plan and its provisions,³¹² and the Act makes it illegal for anyone to violate either the Act or permits and regulations issued pursuant to a management plan.³¹³ Violations are punishable through civil penalties of up to $ 100,000,³¹⁴ permit revocation,³¹⁵ criminal fines and imprisonment,³¹⁶ and forfeiture of the fishing vessel and fishing gear.³¹⁷

Fisheries management plans and their implementing regulations are thus potentially powerful tools for helping to protect coral reef ecosystems, and various Fisheries Management Councils and the National Marine Fisheries Service (NMFS) are already in the process of adding and amending fishery management plans to be more protective [30 ELR 10360] of coral reef species. For example, an amendment to the Fishery Management Plan for Corals and Reef Associated Plants and Invertebrates of Puerto Rico and the U.S. Virgin Islands took effect in December 1999 to establish a coral reef-related marine conservation district southwest of St. Thomas in the U.S. Virgin Islands³¹⁸ "to protect the coral habitat and the ecosystem and to evaluate the effectiveness of a reserve in increasing the level of fish stocks surrounding the reserve."³¹⁹ The South Atlantic Fisheries Management Council has also promulgated a Coral Fisheries Management Plan that it is in the process of amending,³²⁰ and the NMFS and the Western Pacific Fishery Management Council are in the process of evaluating, pursuant to NEPA, a Coral Reef Ecosystem Fishery Management Plan for the Western Pacific Region.³²¹ The Western Pacific Management Plan "would include permit and reporting requirements for non-subsistence harvest of coral reef resources, establishment of several Marine Protected Areas and a list of allowable gear types to harvest coral reef resources in the [EEZ]" and would protect approximately 4,000 square miles of coral reefs in U.S. waters.³²²

Although its protections are less comprehensive, the Endangered Species Act (ESA) of 1973³²³ seeks not only to protect the species themselves but also to conserve "the ecosystems upon which endangered species and threatened species depend . . . ."³²⁴ The Secretary of the Interior, acting through FWS, and the Secretary of Commerce, acting through the NMFS, decide on the basis of the best scientific evidence whether to list terrestrial or marine species, respectively, as endangered or threatened species deserving the Act's protections.³²⁵ Once the relevant agency decides to list a species, it must designate critical habitat.³²⁶ "Critical habitat" is habitat that is "essential to the conservation of the species" and can include both habitat that the species occupies at the time it is listed and areas outside the occupied habitat.³²⁷

Once a species is listed, federal agencies are prohibited from authorizing, funding, or taking any action that is "likely to jeopardize the continued existence of any endangered species or threatened species."³²⁸ Moreover, no person may take an endangered or threatened species.³²⁹ "Take" is a broad term under the ESA, meaning "to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct."³³⁰ The FWS and the NMFS have further defined "harm" to include significant habitat degradation,³³¹ a definition that the U.S. Supreme Court has upheld.³³²

Therefore, by listing coral reef species for protection under the ESA, the FWS and the NMFS can indirectly protect the reefs and their larger ecosystems. To date, the listing of various sea turtle species has had the most pervasive legal impact.³³³ For example, critical habitat for the Hawksbill Sea Turtle expressly includes the reefs offshore Puerto Rico.³³⁴ Moreover, federal agencies' duty not to jeopardize endangered and threatened species led EPA to specify that no discharges of pollutants would be allowed near Saipan's coral reefs because endangered Green and Hawksbill Turtles lived in the vicinity, even though those reefs were not designated critical habitat.³³⁵ Finally, plaintiffs have used the Hawksbill Sea Turtle's endangered status to challenge the Federal Emergency Management Agency's (FEMA's) construction of temporary housing for hurricane victims in the U.S. Virgin Islands.³³⁶

3. Federally Enforceable Water Quality Regulation

A number of federal statutes allow federal agencies that are members of the Coral Reef Task Force to directly regulate—generally through permitting—sources of water pollution. For example, the CWA provides a number of permit and other provisions that could help protect coral reefs from nonvessel discharges of pollutants. The Act makes it illegal for any person to discharge any pollutant except as in compliance with its provisions.³³⁷ After running through the CWA's definitional complexities, this prohibition essentially means that no one can add much of anything to the nation's waters—including the oceans—through a human-controlled conveyance³³⁸ without complying with one [30 ELR 10361] of the Act's permit provisions. These permit provisions cover permits for approved aquaculture projects³³⁹; national pollutant discharge elimination system (NPDES) permits for ordinary discharges of pollutants³⁴⁰; and § 404 permits for "the discharge of dredged or fill material into the navigable waters . . . ."³⁴¹ The § 404 "dredge and fill" permits can be instrumental in protecting wetlands, and, as has been discussed, the Coral Reef Task Force has been pressuring the Corps, which administers this permit program at the federal level,³⁴² to make the program more protective of coral reefs. More directly, the NPDES permit program includes specific criteria for discharges into the oceans,³⁴³ requiring EPA to set guidelines regarding the effect of pollutants on "plankton, fish, shellfish, wildlife, shorelines, and beaches" and giving that agency extensive authority to establish and enforce pollution guidelines that would protect coral reefs.³⁴⁴

EPA has extensive enforcement authority under the CWA against water polluters subject to the general prohibition and a permitting requirement, including administrative and court actions to obtain injunctions or to impose civil and criminal penalties on violators.³⁴⁵ Violators and the EPA are also subject to citizen suits to enforce the Act's provisions.³⁴⁶

The general prohibition on discharges of pollutants does not cover all water pollution, however, including two kinds of pollution that can directly affect coastal and ocean areas that support coral reefs. First, the general prohibition does not extend to nonpoint sources of pollution, such as run-off,³⁴⁷ which are regulated by the states.³⁴⁸ Second, discharges from ships more than three miles out to sea are expressly excluded from the CWA's definition of "discharge of a pollutant."³⁴⁹ Nevertheless, the Act does expressly regulate discharges of oil from vessels³⁵⁰ and imposes requirements for marine sanitation devices designed to reduce pollution from vessel sewage.³⁵¹

The Ocean Dumping provisions of the Marine Protection, Research, and Sanctuaries Act of 1972³⁵² fill in gaps left by the CWA by prohibiting the dumping of any material into the oceans without a permit.³⁵³ EPA cannot issue any permit unless it determines that the permitted dumping "will not unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic possibilities."³⁵⁴ The Coast Guard is charged with keeping watch for illegal dumping, and the Coast Guard, EPA, and the U.S. Attorney General enforce the Act's provisions through a variety of actions, including criminal prosecutions and penalties.³⁵⁵ The Ocean Dumping Act thus provides several federal agencies with strong legal authority to keep all kinds of pollution from ships from reaching the ocean—and coral reefs. Moreover, given the threshold finding that EPA needs to make before issuing any permit, EPA could easily refocus the Act's permit requirement to impose no-dumping requirements that will further protect coral reef ecosystems.³⁵⁶

The Act to Prevent Pollution From Ships³⁵⁷ provides even more general protections from ship-based pollution by giving domestic legal effect to the International Convention for the Prevention of Pollution From Ships of 1993, also known as the MARPOL Protocol,³⁵⁸ which prohibits the discharge of garbage and other harmful substances and requires ships to be certified that they are operating in compliance.³⁵⁹ The Act applies (with some limited exceptions, notably the Navy and non-MARPOL participants) to all U.S. ships, wherever located, to all ships within U.S. navigable waters and/or EEZ, and to U.S. ports and terminals.³⁶⁰

The Act authorizes the Secretary of whatever department in which the Coast Guard is acting to administer and enforce the MARPOL Protocol, including promulgating additional regulations.³⁶¹ This authority has two related foci: the ships themselves and the receiving ports. Ships' handling of garbage and hazardous materials is regulated through MARPOL's certification requirement.³⁶² The Act allows the Coast Guard to conduct onboard inspections for certificate compliance³⁶³ and to detain ships lacking a valid certificate or "whose condition of whose equipment's condition does not substantially agree with the particulars of the certificate onboard."³⁶⁴ As for ports and terminals, the Secretary, after consulting with EPA, promulgates regulatory standards for reception facilities for oil, noxious liquids, and garbage,³⁶⁵ [30 ELR 10362] then issues a certificate to facilities that comply with both MARPOL and the regulations.³⁶⁶ Ships who improperly discharge garbage or hazardous substances must promptly report those incidents,³⁶⁷ and violations of MARPOL, the Act, or the implementing regulations are punishable by criminal fines and civil penalties.³⁶⁸

Moreover, the Act encourages citizen participation in enforcement in two ways. First, the court or the agency can give up to one-half of the fine or penalty assessed to persons supplying information that leads to the offender's criminal conviction or civil penalty liability, encouraging witnesses and other informants to come forward.³⁶⁹ Second, the Act establishes a private right of action—a citizen suit—for "any person having an interest which is, or can be, adversely affected" against either individual violators or the federal government and allows the citizen to recover costs, attorney fees, and witness fees.³⁷⁰

Finally, Congress has dealt particularly with the problem of oil discharges into the ocean in the OPA.³⁷¹ The OPA makes responsible parties liable for all of the removal costs and damages resulting from all discharges of oil "into or upon the navigable waters and adjoining shorelines or the [EEZ]."³⁷² Damages explicitly include natural resource damages,³⁷³ giving state and federal managers of MPAs adequate legal authority to recover not only for the damage to coral reef ecosystems but also the costs of restoring them and the reasonable costs of assessing the damages.³⁷⁴ Nevertheless, the OPA is limited to discharges of oil and is reactive rather than proactive, limiting its usefulness in preserving coral reef ecosystems from further harm.

Together, the CWA, the Ocean Dumping Act, the Act to Prevent Pollution From Ships, and the OPA give federal agencies extensive authority to regulate and punish human-controlled discharges of pollutants into the upstream, coastal, and U.S.-controlled ocean waters. Once EPA establishes water quality criteria for coral reefs, moreover, agencies will be able to adjust permitting and certification requirements to be even more protective of coral reefs.

4. Federally Authorized, State-Enforceable Water Quality Regulation

As noted, federal regulatory authority under the CWA does not extend to nonpoint sources of water pollution, such as uncontrolled precipitation runoff. Nevertheless, as several of the Coral Reef Task Force's Working Groups have emphasized, nonpoint source pollution and runoff from land uses such as agriculture can harm coral reef ecosystems, even if the pollution initially occurs far upstream. Two federal statutes offer funding to states that act to control such pollution.

First, the CZMA³⁷⁵ encourages coastal states to protect their coastal resources, which explicitly include coral reefs.³⁷⁶ The CZMA funds state-created coastal zone management plans,³⁷⁷ wherein coastal states first identify the boundaries of their managed coastal zone,³⁷⁸ then define the permissible land and water uses within that zone that "have a direct and significant impact on the coastal waters."³⁷⁹ The state must then identify its own legal authority for regulating those uses³⁸⁰ and describe its organizational structure for implementing its management program.³⁸¹ Controls can take the form of criteria and standards, direct state land and water use planning and control, and/or administrative review of activities within the coastal zone for consistency with the management plan.³⁸²

Twenty-nine coastal states and territories have established and received approval for their coastal zone management plans.³⁸³ Nevertheless, by 1990 Congress deemed the existing CZMA inadequate. The Coastal Zone Act Reauthorization Amendments³⁸⁴ gave states that already had approved coastal zone management plans 30 months to prepare and submit to EPA and NOAA a Coastal Nonpoint Pollution Control Program, the purpose of which was "to develop and implement management measures for nonpoint source pollution to restore and protect coastal waters . . . ."³⁸⁵ States that failed to submit or receive approval for a nonpoint source program would begin to lose their CZMA federal funding.³⁸⁶ All 29 of the coastal states that had approved coastal zone management plans now have approved nonpoint programs as well.³⁸⁷

To receive this approval, coastal states had to ensure that their coastal zone management plans "contain[] enforceable policies and mechanisms to implement the applicable requirements of the Coastal Nonpoint Pollution Control Program . . . ."³⁸⁸ Moreover, the nonpoint pollution programs had to implement nonpoint source management measures in conformity with EPA's and NOAA's guidance.³⁸⁹ [30 ELR 10363] The two agencies responded by identifying five major categories of coastal nonpoint pollution and by prescribing management measures for these categories.³⁹⁰ The five categories selected—agricultural runoff; urban runoff; silvicultural runoff; hydromodification, dams and levees, and shoreline erosion control; and marinas and recreational boating³⁹¹—emphasize that much coastal and near-offshore pollution comes from land use practices.

Together, coastal zone management plans and Coastal Nonpoint Pollution Control Programs give states with near-shore coral reefs federal authority and funding to control many of the anthropogenic stressors of those reefs that occur within the coastal zone. Moreover, while effective enforcement of these programs depends on state motivation, the governors of American Samoa, Florida, Guam, Hawaii, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands are all full members of the Coral Reef Task Force,³⁹² suggesting that their states and territories are willing to use their CZMA authority to the maximum extent to protect coral reefs. Only the relatively minor reefs in the Gulf of Mexico off of Louisiana and Texas are unrepresented by a full Task Force member, suggesting that those reefs may not be as well protected from coastal management problems.

However, all reefs are potentially subject to stress from pollution that originates far upstream from the closest coastal area, outside the CZMA's purview. CWA § 319 provides funding to all states that enact comprehensive nonpoint source control programs that can control this upstream nonpoint source pollution.³⁹³ However, unlike the CZMA, the CWA does not require that these state programs have enforcement mechanisms. The effectiveness of state nonpoint source programs thus depends entirely on the state, and states can vary considerably.³⁹⁴ When the upstream pollution originates within a state that is a member of the Coral Reef Task Force, it is again to be expected that the state or territory will effectively use its nonpoint source program to protect coral reefs. However, some reefs—like those in the Gulf of Mexico, which are bathed in runoff from the entire Mississippi River watershed—may suffer from the ineffective nonpoint source controls of upstream states.

C. Acts Currently Before Congress, 1999-2000

Five bills directly related to coral reefs are currently before the 106th Congress: S. 725, introduced in March 1999 by Sens. Olympia Snowe (R-Me.) and John McCain (R-Ariz.); S. 1253, introduced in June 1999 by Sen. Daniel Inouye (D-Haw.); H.R. 2903, introduced in September 1999 by Representative Saxton; H.R. 3133, introduced in October 1999 by Reps. Eni Faleomavaega (D-Am. Sam.), Abercrombie, Christensen, Donna Christian-Christensen (D-V.I.), Peter Deutsch (D-Fla.), Carlos Romero-Barcelo (D-P.R.), and Robert Underwood (D-Guam); and S. 1888, introduced in November 1999 by Sens. Daniel Akaka (D-Haw.), Inouye, and Bob Graham (D-Fla.). All five bills, like the legislation proposed in 1997, would provide federal funding for coral reef conservation projects.³⁹⁵ The bills vary, however, regarding how much assistance they provide and how the grants must be distributed. S. 1253, S. 1888, and H.R. 3133 would each provide $ 20 million a year for five years and allow government funding for up to 75 percent of each project, but each would allocate project funding so that at least 40 percent of it would go to help Pacific reefs, at least 40 percent to help reefs in the Caribbean, Gulf of Mexico, and Florida, and the rest to projects that address high priority issues, as identified in consultation with the Coral Reef Task Force.³⁹⁶ S. 725 would provide $ 4 million a year for three years, cap the federal contribution at 50 percent, and require a four-way division in projects: $ 3.8 million each year to be divided along the same 40 percent/40 percent/rest split and $ 200,000 each year to go to emergency projects.³⁹⁷ Finally, S. 2903 would provide $ 10 million a year for five years and impose no cap; however, it would give priority to "projects which promote sustainable development and ensure effective, long-term conservation or restoration of coral reefs."³⁹⁸

S. 725, H.R. 2903, and S. 1888 are funding bills only. S. 1253 and H.R. 3133, however, are companion bills that each propose a more extensive Coral Reef Protection Act of 1999. Beyond funding coral reef conservation projects, each bill would establish a National Program to protect coral reefs that would authorize the Secretary of Commerce to pursue its own coral reef activities.³⁹⁹ Moreover, both would prohibit the owner of a new vessels from receiving proper documentation when that owner had abandoned a prior vessel on a coral reef, if the prior vessel remains abandoned or was removed and cleaned up using public money.⁴⁰⁰

From there, the two bills part company. S.1253 would designate nine fishing vessels grounded in Pago Harbor as Comprehensive Environmental Response, Compensation, and Liability Act sites.⁴⁰¹ H.R. 3133, in contrast, would provide more comprehensive protection by making all persons and vessels that injure or destroy U.S. coral reefs liable for response costs, damages, forfeiture and seizure costs, and interest, which the Secretary could enforce through federal civil actions.⁴⁰² Moreover, the Secretary would retain all [30 ELR 10364] such money received for further use in restoring and conserving coral reefs.⁴⁰³

H.R. 3133 is thus clearly the most protective of the five coral reef bills now pending, although it is also the most individualistic, casting doubts on its ability to attract a majority of votes. If passed, however, the House's version of the Coral Reef Protection Act of 1999 would strengthen the Coral Reef Task Force's ability to fulfill the goals of Executive Order No. 13089 by providing both funding and enforcement authority directed explicitly at coral reefs. Moreover, the bill's liability provisions are general enough to potentially reach some causes of harm to coral reefs, such as upstream nonpoint source pollution, that are currently beyond federal enforcement authority.

V. Conclusion: Potentially Effective Environmental Protection Through Executive Order

The Coral Reef Task Force, in implementing Executive Order No. 13089, has issued a Draft National Plan that relies heavily on refocusing existing federal statutory authority to make that authority directly applicable and relevant to preserving coral reef ecosystems. This existing statutory authority is particularly strong in allowing the Task Force to establish a coordinated system of coral reef MPAs, in protecting the species that are part of coral reef ecosystems, and in addressing certain pollution issues. However, the National Plan's refocusing process leaves the federal agencies that are members of the Task Force potentially vulnerable to charges of undermining the congressional intent behind general environmental statutes that, with one exception, never mention coral reefs, as those members begin to direct resources provided for more general programs to Executive Order No. 13089's narrower goal.

In addition, the federal members of the Coral Reef Task Force lack any direct means of controlling upstream nonpoint source pollution that can stress coral reefs. While the coastal states and territories who are members of the Task Force can be expected to do their parts to control such pollution, not all of the relevant nonpoint sources are in coastal states. The reefs most vulnerable to this nonpoint source problem appear to be those in the Gulf of Mexico, both because Texas and Louisiana are not members of the Task Force and because of the volume of water and pollution that the Mississippi River delivers to those reefs from many inland states.

Finally, despite the Task Force's adoption of the oversight document, both Executive Order No. 13089 and the National Plan lack direct enforcement mechanisms to compel continued government cooperation regarding, and prioritization of, coral reef protection. Should the Administration's priorities shift—even to a new environmental cause—or should member agencies feel a pinch in their broader program obligations, the Task Force's operations could dissipate into the unenforceable realm of executive branch "internal management."

As with much environmental regulation, therefore, the success of the Coral Reef Task Force will probably come down to money—specifically, to the willingness of Congress and state legislatures to help fund various aspects of coral reef protection and to the ability of the Task Force to generate its own sources of revenue. The bills currently before Congress could provide some money for research and preservation projects, but none of them would fund the Task Force directly, nor would they provide a guaranteed budget for coral reef enforcement. Nor, given the fate of other coral reef legislation, is it at all guaranteed that any of these bills will become law.

Self-sustaining MPAs funded through user fees, subscriptions, support societies, volunteer organizations, etc., may be the long-term solution to protecting America's coral reefs from continued degradation. Moreover, such self-funded MPAs are a laudable goal even if Congress and state legislatures do provide some initial funding. Coral reefs already attract the interest and recreational use of numerous segments of the population, and their beauty and diversity supply ready inducements for popular protection. By involving the general public directly, moreover, coral reef MPAs could also serve to focus popular attention on more generalized pollution problems, such as nonpoint source pollution. In addition to protecting the coral reefs ecosystems, therefore, a well-funded system of coral reef MPAs, coupled with education programs and protective access governed by marine zoning, could lead to better management of coastal and upstream land uses as well.

1. U.S. Coral Reef Task Force, Figure 1: DOI Holdings With Coral Reefs, in Coral Reef Task Force, Protecting Coral Reefs: Building on the Year of the Ocean (visited Mar. 8, 2000) http://coralreef.gov/DOI.PNCR/figure 1.html. The 4.2 million acre figure is for reefs within the U.S. Exclusive Economic Zone (EEZ), which extends 200 nautical miles offsbore. Id.

2. Id.

3. World Resources Institute, Publication Description: Reefs at Risk: A Map-Based Indicator of Threats to the World's Coral Reefs (visited Mar. 3, 2000) http://www.igc.org/wri/indictrs/reefrisk.htm.

4. Indeed, the most extensive federal legislation related to reefs deals not with natural coral reefs but the formation of artificial reefs from obsolete ships. See 16 U.S.C. §§ 1220-1220d.

5. See discussion infra Part III.B.1.

6. Exec. Order No. 13089, §§ 2, 4, 63 Fed. Reg. 32701, ELR ADMIN. MAT. 45096 (June 11, 1998).

7. WORKING GROUPS OF THE U.S. CORAL REEF TASK FORCE, DRAFT: THE NATIONAL ACTION PLAN TO CONSERVE CORAL REEFS (Nov. 2, 1999).

8. DIRK BRYANT ET AL., REEFS AT RISK: A MAP-BASED INDICATOR OF THREATS TO THE WORLD'S CORAL REEFS 5, 8 (1998).

9. Id.

10. Id. at 7 (citing Don McAllister, Status of the World Ocean and Its Biodiversity, SEA WIND, Oct./Dec. 1995, at 14).

11. Id. at 8 (citing Gustav Paulay, Diversity and Distribution of Reef Organisms, in LIFE AND DEATH OF CORAL REEFS 303-04 (Charles Birkeland ed., 1997).

12. Id. at 9-10. In 1997, the House Committee on Resources noted that the 1995

domestic landings of commercial reef fish and shellfish (snapper, grouper, spiny lobster, etc.) exceeded $ 79.5 million; that reef fish imports, for consumption or the marine aquarium trade, account for an additional $ 25-50 million annually; that a chemical compound derived from Caribbean reef sponges is the active ingredient in medicines which are widely used in cancer chemotherapy; and many other marine plants and animals which live on coral reefs produce compounds with anti-viral, anti-bacterial and related properties.

H.R. REP. NO. 105-69, 1997 WL 205582, at *5 (Apr. 23, 1997).

13. BRYANT ET AL., supra note 8, at 8 (citing Robert Constanza et al., The Value of the World's Ecosystem Services and Natural Capital, 387 NATURE 256 (1997)).

14. Donald Hinrichsen, Requiem for Reefs?, INT'L WILDLIFE, Mar./Apr. 1997, P14 (available at http://www.nwf.org/nwf/intlwild/coral.html).

15. BRYANT ET AL., supra note 8, at 9.

16. Id.

17. Id.

18. Id. at 11.

19. Id.

20. Id. at 6.

21. Id. at 11-16. Reefs are also subject to natural stresses such as changes in ocean temperature, as happens during El Nino events; hurricanes; and disease. Id. In addition, because many reef species begin their lives as free-floating plankton and/or are highly migratory, changes in ocean currents and ocean pollution miles from the reef itself can affect the reef's overall health. Id.

22. National Oceanic & Atmospheric Administration, Cover Page: The Extent and Condition of Coral Reefs P1 (visited Mar. 2, 1998) http://state_of_coast.noaa.gov/bulletins/html/crf_08/crf.html.

23. Steven L. Miller & Michael P. Crosby, National Picture, in The Extent and Condition of U.S. Coral Reefs (visited Mar. 3, 1998) http://state_of_coast.noaa.gov/bulletins/html/crf_08/crf.html.

24. National Oceanic & Atmospheric Administration, supra note 22.

25. Steven L. Miller & Michael P. Crosby, Introduction, in The Extent and Condition of U.S. Coral Reefs (visited Mar. 9, 2000) http://state_of_coast.noaa.gov/bulletins/html/crf_08/crf.html (citing D.B.K. ENGLISH ET AL., LINKING THE ECONOMY AND ENVIRONMENT OF FLORIDA KEYS/KEY WEST: ECONOMIC CONTRIBUTION OF RECREATING VISITORS TO THE FLORIDA KEYS/KEY WEST (1996); Richard W. Grigg, Hawaii's Coral Reefs: Status and Health in 1997, the International Year of the Reef, in STATUS OF CORAL REEFS IN THE PACIFIC 61-72 (Richard W. Grigg & Charles Birkeland eds., 1997)).

26. Id. (citing CHRISTT ADAMS, ECONOMIC ACTIVITIES ASSOCIATED WITH THE COMMERCIAL FISHING INDUSTRY IN MONROE COUNTY, FLORIDA (1992); Grigg, supra note 25, at 61-72.

27. BRYANT ET AL., supra note 8, at 32.

28. For a good history of a particular reef problem—the crown-of-thorns seastar—and an extended discussion of the difficulties in distinguishing "natural" reef stressors from anthropogenic stressors, see JAN SAPP, WHAT IS NATURAL?, CORAL REEF CRISIS xi-xv, 141-216 (1999).

29. Id.

30. Id. Bleaching is a particularly mysterious phenomenon that "occurs when polyps expel the colorful algae that live in their tissues, causing the corals to turn white. Sometimes the corals recover, sometimes they do not. Scientists have reported bleaching at 60 sites around the globe." Hinrichsen, supra note 14, PP30-31.

31. BRYANT ET AL., supra note 8, at 32.

32. Miller & Crosby, supra note 23.

33. BRYANT ET AL., supra note 8, at 32.

34. Id.

35. Id. at 37.

36. 138 CONG. REC. E772 (daily ed. Mar. 20, 1992) (statement of Rep. Scheuer).

37. Id.

38. Gayle Grant, International Coral Reef Initiative, 8 GEO. INT'L ENVTL. L. REV. 491, 491-92 (1996); H.R. REP. NO. 105-69, 1997 WL 205582, at *6-7 (Apr. 23, 1997). Specifically, the ICRI was "an outgrowth of Agenda 21 of the Rio Earth Summit which called for an international integration approach to addressing the issue of coral reefs . . . ." Grant, at 491.

39. Grant, supra note 38, at 492.

40. H.R. REP. NO. 105-69, 1997 WL 205582, at *6-7.

41. Grant, supra note 38, at 492. Australia took over as Secretariat in 1996, id., followed by France in 1998.

42. Id. at 491-92.

43. Magen Griffiths, International Year of the Reef 1997, 1997 COLO. J. INT'L ENVTL. L. & POL'Y 196.

44. Exec. Order No. 13089, § 1(b), 63 Fed. Reg. 32701, ELR ADMIN. MAT. 45096 (June 11, 1998).

45. Id.

46. U.S. ISLANDS CORAL REEF INITIATIVE, U.S. ISLANDS CORAL REEF INITIATIVE WORKSHOP: SUMMARY REPORT 1 (Sept. 25-26, 1997) (available at http://www.hawaii.edu/ssri/Is_CRI.html). In late 1999, the U.S. Islands Coral Reef Initiative issued its U.S. All Islands Coral Reef Initiative Strategy. U.S. ALL ISLANDS CORAL REEF INITIATIVE COORDINATING COMMITTEE, U.S. ALL ISLANDS CORAL REEF INITIATIVE STRATEGY (1997) (available at http://www.hawaii.edu/ssri/Is_CRI.html).

47. Griffiths, supra note 43.

48. H.R. REP. NO. 105-69, 1997 WL 205582, at *7 (Apr. 23, 1997); Griffiths, supra note 43.

49. 143 CONG. REC. E86 (daily ed. Jan. 9, 1997) (statement of Rep. Saxton).

50. 143 CONG. REC. H1742, H1744 (daily ed. Apr. 23, 1997) (results of House vote by Speaker pro tempore); 143 CONG. REC. S10778, S10779 (daily ed. Oct. 9, 1997) (passing House Concurrent Resolution 8 with amendments); 143 CONG. REC. H8866, H8867 (daily ed. Oct. 21, 1997) (passing House Concurrent Resolution 8 as amended by the Senate).

51. H.R. REP. NO. 105-69, 1997 WL 205582, at *4.

52. H.R. Con. Res. 8, 105th Cong., 143 CONG. REC. H8866 (daily ed. Oct. 21, 1997) (enacted).

53. H.R. 2233, 105th Cong. § 1 (1997).

54. Id. § 4(a).

55. Id. §§ 5(a), 6.

56. 143 CONG. REC. H8066 (daily ed. Sept. 29, 1997) (H.R. 2233 read to House, with Representative Saxton moving to suspend the rules and pass the bill).

57. 143 CONG. REC. H8293, H8293-94 (daily ed. Oct. 1, 1997) (recording the vote; H.R. 2233 was defeated by a vote of 230 in favor to 181 against).

58. See, e.g., S. REP. NO. 105-209 (1998), 1998 WL 307408, at *1 (June 10, 1998) (discussing House Concurrent Resolution 131, "[a] Concurrent Resolution acknowledging 1998 as the International Year of the Ocean and expressing the sense of the Congress regarding the ocean").

59. H.R. 3445, 105th Cong. (1998) (as amended Sept. 15, 1998).

60. Id. § 4(a)(1).

61. Id. § 3(a).

62. Id. § 3(b).

63. 63 Fed. Reg. 32701, ELR ADMIN. MAT. 45096 (June 11, 1998). President Clinton based his authority for the Executive Order on the Clean Water Act (CWA), 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607; the Coastal Zone Management Act (CZMA), 16 U.S.C. §§ 1451-1465, ELR STAT. CZMA §§ 302-319; the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1883; the National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209; the National Marine Sanctuaries Act, 16 U.S.C. §§ 1431-1445; the National Park Service Organic Act, 16 U.S.C. §§ 1-3; and the National Wildlife Refuge System Administration Act, 16 U.S.C. §§ 668dd-ee.

64. Exec. Order No. 13089, § 2(a), 63 Fed. Reg. 32701, ELR ADMIN. MAT. 45096 (June 11, 1998). In general, "federal agencies whose actions affect U.S. coral reef ecosystems, shall, subject to the availability of appropriations, provide for implementation of measures needed to research, monitor, manage, and restore affected ecosystems, including, but not limited to, measures reducing impacts from pollution, sedimentation, and fishing." Id. § 3. More specifically, President Clinton ordered federal agencies to do three things:

(a) identify their actions that may affect U.S. coral reef ecosystems; (b) utilize their programs and authorities to protect and enhance the conditions of such ecosystems; and (c) to the extent permitted by law, ensure that any actions they authorize, fund, or carry out will not degrade the conditions of such ecosystems.

Id. § 2(a). The Order defines "U.S. coral reef ecosystems" to be "those species, habitats, and other natural resources associated with coral reefs in all maritime areas and zones subject to the jurisdiction or control of the United States . . . ." Id. § 1(a).

65. Id. § 2(b). Specifically, federal agencies can avoid actively protecting coral reefs only during war or national emergency, for reasons of national security, during emergencies, and as a result of acts of God. Id.

66. Id. § 6.

67. See discussion infra Part IV.A.

68. Exec. Order No. 13089, § 4, 63 Fed. Reg. 32701, ELR ADMIN.MAT. 45096 (June 11, 1998).

69. Id. The Task Force also includes:

The Administrator of the Environmental Protection Agency, the Attorney General, the Secretary of the Interior, the Secretary of Agriculture, the Secretary of Commerce, the Secretary of Defense, the Secretary of State, the Secretary of Transportation, the Director of the National Science Foundation, the Administrator of the Agency for International Development, and the Administrator of the National Aeronautics and Space Administration.

Id.

70. Id. § 4.

71. Id. § 5.

72. Id. § 5(c). "These measures shall include solutions to problems such as land-based sources of water pollution, sedimentation, detrimental alteration of salinity or temperature, over-fishing, over-use, collection of coral reef species, and direct destruction caused by activities such as recreational and commercial vessel traffic and treasure salvage." Id.

73. Id.

74. U.S. Coral Reef Task Force, Summary of Decisions: First Meeting of the United States Coral Reef Task Force, Biscayne National Park, Florida, October 19-20, 1998 (last modified Feb. 11, 1999) http://coralreef.gov/mtgsum.html.

75. Id.

76. Id.

77. Id.

78. Id. In addition, "specific workplans and budgets required for implementation of these actions to meet the goals of the Executive Order (E.O.) should also be developed." Id.

79. Id.

80. Id.

81. Water & Air Quality Working Group, U.S. Coral Reef Task Force, Draft Recommendations (visited Mar. 3, 2000) http://coralreef.gov/WGREP.html.

82. Id.

83. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

84. U.S. EPA ADMINISTRATOR CAROL BROWNER & U.S. SECRETARY OF AGRICULTURE DAN GLICKMAN, CLEAN WATER ACTION PLAN (revised Aug. 7, 1998) (available from http://www.cleanwater.gov/action).

85. Water & Air Quality Working Group, supra note 81.

86. Id. The Working Group committed itself to five specific actions. EPA proposed to provide technical guidance for developing biological assessment methods and narrative criteria for coral reefs and to "develop a nationally consistent approach for developing and establishing biocriteria in state water quality standards, and for integrating biological assessment and criteria into the TMDL [total maximum daily load] and NPDES [national pollutant discharge elimination system] permit programs." Id. The Working Group would also develop "general narrative and/or numeric physical guidelines for coral reef health," id., and research and develop "methodologies and default numerical criteria for marine regions." Id. EPA would develop "nutrient criteria documents explaining methodologies that can be used to calculate nutrient criteria for coral reef protection." Id Finally, EPA would use its authority under CWA § 403(c), which prohibits discharges into the outer oceans unless the discharge will not result in "unreasonable degradation of the marine environment," to collect and evaluate monitoring data about those seas and discharges. Id.

87. Id.

88. Id.

89. Id. (relying on 33 U.S.C. § 1344, ELR STAT. FWPCA § 404). Specifically, EPA will work with the U.S. Army Corps of Engineers to exclude "the use of any [section 404] Nationwide permit for activities that would directly or indirectly impact coral reefs" and "to develop regulatory guidance to reinforce the Section 404(b)(1) Guidelines for activities that would impact Special Aquatic Sites, including coral reefs." Id. In addition, the Working Group will evaluate various coral reef mitigation projects in Hawaii, Puerto Rico, and the U.S. Virgin Islands—projects designed "to mitigate the impacts on reef ecosystems from Section 404 authorized activities." Id.

90. Id. (relying on 33 U.S.C. § 1329, ELR STAT. FWPCA § 319). However, the Working Group also noted that the CZMA's Coastal Nonpoint Pollution Control Program, see 16 U.S.C. § 1455b, available in ELR STAT. CZMA, and the U.S. Department of Agriculture's programs for controlling agricultural runoff would also help address the problem. Water & Air Quality Working Group, supra note 81.

91. Water & Air Quality Working Group, supra note 81.

92. Id.

93. 33 U.S.C. § 1322, ELR STAT. FWPCA § 312.

94. Water & Air Quality Working Group, supra note 81 (relying on 33 U.S.C. § 1322, ELR STAT. FWPCA § 312). Two of the Working Group's three proposed actions focused on vessel sewage—encouraging states to establish boat pump-out facilities and No Discharge Zones under CWA § 312 and examining "the extent to which vessel sewage discharges present a significant problem for coral reef ecosystems." Id. Its last proposed action was to use modeling to identify areas where air pollution was affecting the reefs off of South Florida. Id. The Working Group also noted that EPA and the U.S. Department of Agriculture had recently released a "Unified National Animal Feeding Operations Strategy which addresses, in part, the problem of nutrient loadings to waterways from livestock feeding operations," and that the Clean Air Act, 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618, could be used to regulate sources of air pollution that are found to harm coral reefs. Water & Air Quality Working Group, supra note 81.

95. 33 U.S.C. §§ 1901-1915.

96. Water & Air Quality Working Group, supra note 81 (relying on 33 U.S.C. §§ 1901-1915).

97. Id. (relying on 16 U.S.C. §§ 4713-4714). In addition, President Clinton has recently issued an Executive Order on Invasive Species, see Exec. Order No. 13112, 64 Fed. Reg. 25, ELR ADMIN. MAT. 45105 (Feb. 3, 1999), which requires all federal agencies to act to prevent invasive species from displacing native species. Id. The Working Group proposes that "during the course of this review, Federal agencies should also determine the extent to which activities identified as affecting invasive species also impact coral reef ecosystems." Water & Air Quality Working Group, supra note 81.

98. Water & Air Quality Working Group, supra note 81. In particular, "EPA will encourage states and territories to target Section 319 assistance and funding to projects that will help improve the health of coral reef ecosystems"; EPA is considering directing the Clean Water State Revolving Fund to eligible projects "that would reduce adverse impacts on coral reef ecosystems"; and "EPA has funds available through the National Capacity Development Project to demonstrate the successful elimination of barriers to the wider use of decentralized wastewater treatment." Id.

99. Id.

100. Coastal Uses Working Group, U.S. Coral Reef Task Force, Status Report (visited Mar. 8, 2000) http://coralreef.gov/CUWGreport.html.

101. Id.

102. Id.

103. Id. "States and territories regulate fishing within their territorial waters," while "management of fisheries between 3 and 200 nautical miles from shore is largely the responsibility of NOAA's National Marine Fishery Service through fishery management plans (FMPs) developed by the Regional Fishery Management Councils." Id.

104. Id.

105. Id. Relatedly, the Working Group also recommended that the Task Force "identify and conserve essential fish habitat for fishery resources," id; that enforcement authority be enhanced, id., and that the Task Force develop a coral reef ecosystem fishery management plan for the western Pacific coral reefs. Id.

106. Id.

107. Specifically, the Working Group recommended addressing the problem of marine debris on coral reefs in light of the fact that there are "more than 6000 metric tons of nets currently on the coral reefs of the Northwest Hawaiian Islands," id.; monitoring and limiting the collection of reef species for the aquarium trade, id.; applying additional fishing gear regulations, id.; and addressing fishery impacts on deeper reefs as new technologies are making such fishing possible. Id.

108. Id.

109. 16 U.S.C. §§ 1451-1465, ELR STAT. CZMA §§ 302-319.

110. Coastal Uses Working Group, supra note 100 (relying on the River and Harbors Act, 33 U.S.C. §§ 540-633; the CWA, 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607; the Marine Protection, Research, and Sanctuaries Act (also known as the Ocean Dumping Act), 33 U.S.C. §§ 1401-1445; and the CZMA, 16 U.S.C. §§ 1451-1465, ELR STAT. CZMA §§ 302-319).

111. Id. (relying on 33 U.S.C. § 1344(b), (c), ELR STAT. FWPCA § 404(b), (c), and the Fish and Wildlife Coordination Act, 16 U.S.C. §§ 661-665, 665a, 666, 666a-666c).

112. Id.

113. Id.

114. Id.

115. Id. Coral reefs in the Florida Keys have already been valued at $ 2,833 per cubic meter. Id.

116. Id.

117. Id. For example, "in the Florida Keys National Marine Sanctuary alone, there are over 500 reported vessel groundings per year." Id.

118. Id. (relying on National Marine Sanctuaries Act, 16 U.S.C. §§ 1431-1445; National Park Service Organic Act, 16 U.S.C. §§ 1-3; National Wildlife Refuge Administration Act, 16 U.S.C. §§ 668dd-668ee). See also discussion infra Part IV.B.1.

119. 33 U.S.C. §§ 2701-2761, ELR STAT. OPA §§ 1001-7001.

120. Coastal Uses Working Group, supra note 100 (relying on 33 U.S.C. § 2702, ELR STAT. OPA § 1003). Spills of hazardous materials can also be addressed through the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405, and the River and Harbors Act, 33 U.S.C. §§ 540-633, while the Act to Prevent Pollution From Ships, 33 U.S.C. §§ 1901-1915, and the Ocean Dumping Act, 33 U.S.C. §§ 1401-1445, can address other kinds of pollution, such as garbage. Coastal Uses Working Group, supra note 100. See also discussion infra Part IV.B.3.

121. Coastal Uses Working Group, supra note 100.

122. Id.

123. Id.

124. U.S. Geological Survey, Executive Summary, in AMERICA'S CORAL REEFS: A PROGRAM FOR MAPPING, RESEARCH, AND ASSESSMENT TO INSURE VITALITY, PROTECT RESOURCES, AND UNDERSTAND CHANGE (last modified Feb. 18, 1999) http://coralreef.gov/reef-workshop2.html.

125. U.S. Geological Survey, Introduction, in AMERICA'S CORAL REEFS: A PROGRAM FOR MAPPING, RESEARCH, AND ASSESSMENT TO INSURE VITALITY, PROTECT RESOURCES, AND UNDERSTAND CHANGE (last modified Feb. 18, 1999) http://coralreef.gov/reef-workshop3.html.

126. U.S. Geological Survey, supra note 124.

127. U.S. Geological Survey, A Program for Mapping, Research, and Assessment, in AMERICA'S CORAL REEFS: A PROGRAM FOR MAPPING, RESEARCH, AND ASSESSMENT TO INSURE VITALITY, PROTECT RESOURCES, AND UNDERSTAND CHANGE (last modified Feb. 18, 1999) http://coralreef.gov/reef-workshop6.html. These maps would be based both on remote sensing techniques such as satellite imaging and investigations of the reefs themselves, including ground truthing and basic oceanographic characterization. Id.

128. Id.

129. Id. Specifically, the Working Group recommended the following techniques: "coring of entire reef transects to interior depths of 30 feet," "individual coral coring for studying annual changes to corals," "surface observations and measurements of species abundance," "coralline algae identification," "radiometric daring," "trace indicators as proxy," and "carbon reservoir and acid racimization tracers." Id. It also recommended that information be gathered about "reef growth and calcification estimates," "zonation of coral communities," "abundance and condition of reef-building organisms," "indicators of light or depth," "sediment production rates," "sediment transport pathways and storage sites," "current structure," "wave/reef interactions," "nutrient levels," and "import mechanisms and pathways for sediment, nutrients, and other pollutants." Id.

130. Id.

131. Id.

132. U.S. Geological Survey, Partnerships, in AMERICA'S CORAL REEFS: A PROGRAM FOR MAPPING, RESEARCH, AND ASSESSMENT TO INSURE VITALITY, PROTECT RESOURCES, AND UNDERSTAND CHANGE (last modified Feb. 18, 1999) http://coralreef.gov/reef-workshp7.html.

133. Id.

134. MAPPING & INFORMATION SYNTHESIS WORKING GROUP, U.S. CORAL REEF TASK FORCE, FINAL DRAFT: A STRATEGY TO MAP STATE, COMMONWEALTH, TERRITORY, AND FREELY ASSOCIATED STATE CORAL REEF ECOSYSTEMS IN THE UNITED STATES (Mar. 5-6, 1999).

135. Id. at 4.

136. Id.

137. MAPPING & INFORMATION SYNTHESIS WORKING GROUP, U.S. CORAL REEF TASK FORCE, PARTICIPANT LETTER 1 (Mar. 30, 1999).

138. Id. at 1-2.

139. Working Group on Ecosystem Science & Conservation, U.S. Coral Reef Task Force, Draft: Research and Monitoring: Proposed Actions (visited Mar. 8, 2000) http://coralreef.gov/R&MfinalMS.html.

140. Id.

141. Id. "Long-term, holistic ecological studies are needed to improve our understanding of the complex mechanisms that govern coral reef ecosystems." Id.

142. Id. Coral bleaching is the loss of the coral's "symbiotic algae and/or their pigments" (pigments, like chlorophyll, are what plants like algae use to photosynthesize) and killed many corals in 1997-1998. Id. Coral reef disease also appears to be increasing. Id. Although both events are "natural," both have been linked to human influence as well. In particular, "evidence suggests that human activities play a significant role in the recent outbreaks of coral reef disease . . . ." Id.

143. Working Group on Ecosystem Science & Conservation, U.S. Coral Reef Task Force, Draft: Building a National System of Marine Protected Areas for Coral Reefs (visited Mar. 1, 1999) http://coralreef.gov/MPAfinal.html.

144. Id.

145. Id. Selection would take into account six factors: biogeographic criteria; ecological criteria; naturalness; economic, social, and scientific importance; international or national significance; and feasibility. Id.

146. Id.

147. WORKING GROUP ON ECOSYSTEM SCIENCE & CONSERVATION, U.S. CORAL REEF TASK FORCE, DRAFT: CORAL REEF PROTECTED AREAS: A BLUEPRINT FOR MANAGEMENT (Mar. 1, 1999) http://coralreef.gov/CRPA.blueprint.html. The plans should address harvesting activities, recreational use, water pollution, and coastal development. Id. However, the group stressed that a plan for a given marine protection area should be sensitive to the "cultural norms, local history, and political experience" surrounding the particular reef system. Id.

148. Id.

149. WORKING GROUP ON ECOSYSTEM SCIENCE & CONSERVATION, U.S. CORAL REEF TASK FORCE, DRAFT: HAWAII CORAL REEF EMERGENCY RESPONSE TEAM: ISSUES AND PROPOSED ACTIONS (Mar. 1, 1999) http://coralreef.gov/HI.emergency.html. Specifically, the team would consist of a coral reef biologist, reef fish biologist, and enforcement officer from the Hawaii Department of Land and Natural Resources; the Hawaii Deputy Attorney General; a water quality specialist and hazard evaluation emergency response specialist from the Hawaii Department of Health; coral reef biologists from both the U.S. Fish and Wildlife Service and the National Marine Fisheries Service; a U.S. Coast Guard liaison; a U.S. Navy liaison; and four to six researchers from the University of Hawaii. Id.

150. INTERNATIONAL WORKING GROUP, U.S. CORAL REEF TASK FORCE, EXECUTIVE SUMMARY: DRAFT REPORT TO THE UNITED STATES CORAL REEF TASK FORCE (Mar. 5-6, 1999) http://coralreef.gov/exesum.html.

151. Id.

152. Id.

153. Id. In the short term, it recommended an increased enforcement capacity "to intercept illegal shipments and accurately collect and verify trade data"; the creation of educational materials to "emphasize the concerns regarding the unsustainable trade in coral reef species and destructive fishing practices"; and potential application of a cyanide detection test to live tropical fish imports. International Trade Sub-Group, U.S. Coral Reef Task Force, Executive Summary, in DRAFT: INTERNATIONAL TRADE IN CORAL AND CORAL REEF SPECIES (visited Sept. 13, 1999) http://coralreef.gov/trade.html. As longer term goals, the group recommended continued monitoring of the global trade in nonprotected coral reef species; promoting aquaculture, mariculture, and captive breeding; and assisting "source countries in creating sustainable trade programs." Id.

154. Id.

155. INTERNATIONAL WORKING GROUP, supra note 150.

156. Id.

157. Rafe Pomerance, U.S. Department of State, Draft: Coral Bleaching, Coral Mortality, and Global Climate Change (visited Mar. 8, 2000) http://coralreef.gov/bleaching.html.

158. INTERNATIONAL WORKING GROUP, supra note 150.

159. Id.

160. Id. This region supplies most of the trade in live and dead coral and aquarium fish. INTERNATIONAL WORKING GROUP, U.S. CORAL REEF TASK FORCE, INTERNATIONAL WORKING GROUP DRAFT REPORT app. (Southeast Asia Subgroup, Report to U.S. Coral Reef Task Force) (available at http://coralreef.gov/IWGmain.html).

161. INTERNATIONAL WORKING GROUP, supra note 160, at app. (Pacific Subgroup, Report to U.S. Coral Reef Task Force).

162. INTERNATIONAL WORKING GROUP, supra note 150.

163. Id. Moreover, about "25% of the oil transported worldwide by sea passes through the region." Id. All told, "almost [two-thirds] of reefs in the Wider Caribbean are at risk and about [one-third] are at high risk of degradation . . . ." INTERNATIONAL WORKING GROUP, supra note 160, at app. (Wider Caribbean Subgroup, U.S. Coral Reef Task Force).

164. INTERNATIONAL WORKING GROUP, supra note 150.

165. Id.

166. Id.

167. Id.

168. Id.

169. U.S. CORAL REEF TASK FORCE, U.S. CORAL REEF TASK FORCE ANNOUNCES NEW ACTIONS FOR THE PROTECTION OF CORAL REEFS (Mar. 6, 1999) (press release available at http://coralreef.gov/pressrel.html).

170. Id.

171. Id.

172. Id.

173. Id.

174. Id.

175. U.S. Coral Reef Task Force, Actions Taken by the United States Coral Reef Task Force at Its Third Meeting, November 2-3, 1999. St. Croix, U.S. Virgin Islands (visited Mar. 8, 2000) http://coralreef.gov/actions.html.

176. Id.

177. Id.

178. Id.

179. Id.

180. Id.

181. 64 Fed. Reg. 67928 (Dec. 3. 1999).

182. U.S. Coral Reef Task Force, Supra note 175.

183. WORKING GROUPS OF THE CORAL REEF TASK FORCE, supra note 7, at 1.

184. Id.

185. Id. at 7.

186. Id. at 10.

187. Id. at 11-12. The Task Force projects that implementation of this monitoring project will take six years. Id.

188. Id.

189. Id. at 13.

190. Id. at 14.

191. Id.

192. Id. at 1.

193. Id. at 14.

194. Id. at 4.

195. Id. at 7. These strategies are to:

[(1)] create a network of coral reef Marine Protected Areas; [(2)] reduce impacts of extractive uses; [(3)] reduce habitat destruction; [(4)] reduce pollution; [(5)] restore damaged reefs; [(6)] reduce global threats to coral reefs; [(7)] reduce impacts from international trade in coral reef species; [(8)] improve Federal accountability and coordination; and [(9)] create and informed public for coral reef conservation.

Id.

196. Id. at 14. For example, "many of the adverse habitat impacts of coastal development and vessel groundings can be prevented through consistent and proactive application of existing federal and state authorities and programs, and through a rapid and scientifically informed response to the damage." Id. at 17. Moreover, the Plan plans to "strengthen and improve federal and state permitting and management programs for coastal development activities that impact coral reef habitats by developing long-needed technical guidance, impact thresholds and policy directives designed to avoid or minimize adverse impacts to reefs" and to reduce the harm from vessel groundings by "strengthening and standardizing enforcement and damage assessment actions." Id.

As for pollution, "although the sources, characteristics and impacts of water pollution vary widely among U.S. reefs, many could be significantly reduced or potentially eliminated by fully implementing existing authorities among various federal and state agencies." Id. at 18. The Draft National Plan identifies five pollutants that are of particular importance: sediment, nutrients, chemicals, marine debris, and invasive alien species. Id. To implement the pollution reduction strategy, the Plan more particularly recommends strengthening of "the scientific rigor and ecological relevance of existing water quality programs and permitting mechanisms that routinely affect coral reefs" and controlling "direct offshore discharges from known point sources including sewage and industrial pipes, and vessel operations." Id.

197. Id. at 14-15. For example, the Plan recommends that the Task Force "develop innovative partnerships with landowners and users to reduce land-based sources of pollution on a watershed scale." Id. at 18.

198. Id. at 20-21. In particular, the Plan recommends that the Task Force "foster strategic partnerships with other countries, international organizations and institutions, the public and private sectors, and non-governmental organizations to address international threats to coral reefs," id. at 20; "strengthen the International Coral Reef Initiative and implement its Renewed Call to Action, and support the Global Coral Reef Monitoring Network and its linkage to the national monitoring effort," id. at 21; and "strengthen international research, monitoring and assessment efforts aimed at understanding, predicting and preventing the impacts of large-scale phenomena such as bleaching and disease, and their socio-economic impacts." Id. at 21.

199. Id. at 21-22. Nevertheless, the Working Groups continue to recommend that domestic law enforcement regarding illegal trade in coral reef species be improved, id. at 21, and continue to suggest that Congress may need to enact more legislation regarding the importation and exportation of such species. Id. at 22.

200. Id. at 22-23. In particular, the Working Groups recommended that the Task Force:

[(1) i]ncrease national and international awareness of the ecological, economic and cultural importance of coral reefs; [(2) i]nform local and regional audiences of the linkage between their actions and local coral reef health; [(3) e]ducate specific user groups (e.g. fishers, vessel owners, divers, etc.) about ways to minimize the impacts of their specific activity; [(4) p]rovide critically needed information to coastal decision-makers in order to positively influence reef conservation issues at the local, regional and national levels; [(5) i]ncrease awareness of and support for that actions proposed by the U.S. Coral Reef Task Force; and [(6) e]stablish a position as the CRTF [Coral Reef Task Force] Education Coordinator to over see and coordinate Task Force education efforts on a national and local scale, including development of a competitive grants program to support community-based coral protection activities.

Id. at 23.

201. Id. at 15.

202. Id. at 16.

203. Id. at 15.

204. Id. at app. B: Project Summary Tables vi.

205. Id. at 16. This strategy also includes reducing overfishing; eliminating habitat damage; eliminating destructive fishing practices; improving fishing regulations and gear restrictions; removing fishing debris from the U.S. Pacific Islands; restricting domestic collection of coral; monitoring collection of coral species; and evaluating import and export authority and policies. Id.

206. Id. at 21.

207. Id.

208. Id. at 19.

209. Id. The Working Groups emphasized that the federal agencies have a higher duty under Executive Order No. 13089 because they are expressly prohibited from harming coral reefs. "Consequently, restoration is not viewed by the CRTF Working Groups as a means to mitigate actions or projects that are expected to adversely impact reef habitats." Id.

210. Id. The restoration strategy also includes developing "response capabilities that reduce the impact of vessel groundings, or other events, on coral reefs." Id. at 20.

211. U.S. Coral Reef Task Force, supra note 175.

212. 64 Fed. Reg. 67928 (Dec. 3, 1999).

213. WORKING GROUP ON ECOSYSTEM SCIENCE & CONSERVATION, U.S. CORAL REEF TASK FORCE, DRAFT: CORAL REEF PROTECTED AREAS: A GUIDE FOR MANAGEMENT (Oct. 27, 1999) http://coralreef.gov/CRTF.TAB7.html.

214. Exec. Order No. 13089, § 2, 63 Fed. Reg. 32701 (June 11, 1998).

215. WORKING GROUPS OF THE CORAL REEF TASK FORCE, supra note 7, at 22.

216. U.S. Coral Reef Task Force, supra note 175.

217. 64 Fed. Reg. 67928 (Dec. 3, 1999).

218. U.S. CORAL REEF TASK FORCE, DRAFT: OVERSIGHT OF AGENCY ACTIONS AFFECTING CORAL REEF PROTECTION (Oct. 27, 1999) http://coralreef.gov/CRTF.TAB8.html. The plan must describe how the agency will:

[(1)] identify actions that may affect U.S. Coral Reef ecosystems; [(2)] utilize existing programs and authorities to protect and enhance the conditions of such ecosystems; [(3)] to the extent permitted by law, ensure that actions they authorize, fund, or carry out will not degrade the conditions of such ecosystems; and [(4)] provide, subject to the availability of appropriations, for implementation of measures needed to research, monitor, manage, and restore affected ecosystems, including but not limited to measures reducing impacts from pollution, sedimentation, and fishing.

Id. Each member's plan will be posted on the Internet.

219. Id.

220. Id. Specifically, the report must include:

(i) a description of any significant changes to the implementation plan; (ii) a summary of accomplishments; (iii) a summary of significant issues and any issues raised under Section 2 of the Order and how they were treated; (iv) any instances in which the agency found it necessary to rely on any of the exceptions to the policy in Section 2 of the Order, and the terms prescribed for invoking the exception(s) to the extent permitted by law; and (v) any other information that the agency wishes to share with the Task Force and the public.

Id. These reports will also be posted on the Internet.

221. Id.

222. Id. The co-chairs will invite a written response from non-member agencies.

223. Id.

224. Id.

225. U.S. Coral Reef Task Force, supra note 175; see also Cox News Service, Investigators Find Dump, Bomb Craters in Sea Off Vieques, THE NEWS & OBSERVER (Raleigh, North Carolina), Dec. 11, 1999, at A6.

226. U.S. CORAL REEF TASK FORCE, THE NATIONAL ACTION PLAN TO CONSERVE CORAL REEFS (Mar. 2, 2000) [hereinafter NATIONAL PLAN].

227. Id. at 9.

228. Id. at 17.

229. H. Josef Herbert, Proposal Would Save Coral Reefs, THE COLUMBIAN, Mar. 3, 2000, at All.

230. U.S. Coral Reef Task Force, Coral Reef Initiatives: FY 2001 President's Budget—$ 26 Million (visited Mar. 8, 2000) http://coralreef.gov/coral00budsum.pdf.

231. Id.

232. Herbert, supra note 229, at All; Madelyn Appelbaum, NOAA & Stephanie Hanna, U.S. DOI, U.S. Coral Reef Task Force Unveils Groundbreaking Plan: Will Tackle Major Risks to Economy, Consumers, Environment 1 (Mar. 2, 2000) (press release available at http://coralreef.gov/crtfpressrelease0302.pdf).

233. Id. at 2.

234. Herbert, supra note 229, at All (reporting on the reaction of Roger Rufe, president of the Center for Marine Conservation); H. Josef Herbert & David Fleshler, Clinton Seeking Protection for Coral Reefs: Plan Designates 20% as Reserves, SUN-SENTINEL, Mar. 3, 2000, at 3A (reporting the reaction of Craig Quirolo, founder and marine projects director of Reef Relief).

235. Herbert & Fleshler, supra note 234, at 3A.

236. Herbert, supra note 229, at All.

237. Id. (quoting Roger Rufe, president of the Center for Marine Conservation).

238. NATIONAL PLAN, supra note 226, at iv.

239. See, e.g., National Ass'n of Gov't Employees, Inc. v. Federal Labor Relations Admin., 179 F.3d 946, 951 (D.C. Cir. 1999) ("An insubordinate agency is subject to Executive Branch enforcement of the EO through persuasion and, ultimately, termination of the resisting official.").

240. Dong v. Slattery, 84 F.3d 82, 85 (2d Cir. 1996); Zhang v. Slattery, 55 F.3d 732, 747-48 (2d Cir. 1995); Chen Zhou Chai v. Carroll, 48 F.3d 1331, 1338 (4th Cir. 1995); Facchiano Constr. Co. v. U.S. Dep't of Labor, 987 F.2d 206, 210 (3d Cir.), cert. denied, 510 U.S. 822 (1993); Haitian Refugee Ctr. v. Baker, 953 F.2d 1498, 1510-11 (11th Cir.), cert. denied, 502 U.S. 1122 (1992); Independent Meat Packers Ass'n v. Butz, 526 F.2d 228, 234 (8th Cir. 1975), cert. denied, 424 U.S. 966 (1976).

241. Exec. Order No. 13089, § 1, 63 Fed. Reg. 32701, ELR ADMIN. MAT. 45096 (June 11, 1998).

242. Id. § 6.

243. 5 U.S.C. §§ 701-706, available in ELR STAT. ADMIN. PROC.

244. 42 U.S.C. §§ 4321-4370d, ELR STAT. NEPA §§ 2-209.

245. 5 U.S.C. § 702, available in ELR STAT. ADMIN PROC.

246. Id.

247. Id. § 704, available in ELR STAT. ADMIN PROC.

248. Id. § 706(1), available in ELR STAT. ADMIN PROC.

249. Id. § 706(2)(A), available in ELR STAT. ADMIN PROC.

250. Id. § 701, available in ELR STAT. ADMIN PROC.

251. Dong v. Slattery, 84 F.3d 82, 85 (2d Cir. 1996) (holding that the APA is not available to enforce an Executive Order that does not have the force of law); Haitian Refugee Ctr. v. Baker, 953 F.2d 1498, 1510-11 (11th Cir. 1992) (disallowing APA review because judicial review contradicts the purpose of the Executive Order); Colon v. Carter, 633 F.2d 964, 966 (1st Cir. 1980) (disallowing judicial review because, assuming the President was an "agency" for APA purposes, his designation of a relocation site through an Executive Order was committed to his discretion).

252. City of Carmel-by-the-Sea v. U.S. Dep't of Transp., 123 F.3d 1142, 1165-66, 27 ELR 21428, 21440-41 (9th Cir. 1997) (allowing judicial review through the APA even though neither of the two Executive Orders involved "explicitly creates a cause of action or mentions judicial review"); see also Sierra Club v. Peterson, 705 F.2d 1475, 1478 & n.4, 13 ELR 20585, 20586 & n.4 ("The fact that there is no express or implied private right of action under EO 12088 does not prevent review of agency action under the APA.") (citing California v. Watt, 683 F.2d 1253, 1270, 12 ELR 21084, 21092 (9th Cir. 1982): Chrysler Corp. v. Brown, 441 U.S. 281. 317 (1979)).

253. WORKING GROUPS OF THE CORAL REEF TASK FORCE, supra note 7, at 22.

254. 42 U.S.C. § 4331(b), ELR STAT. NEPA § 101(b).

255. Id. § 4332, ELR STAT. NEPA § 102.

256. Id. § 4332(c), ELR STAT. NEPA § 102(c). Unless the need for a full-on EIS is clear, agencies often proceed by preparing an initial environmental assessment (EA), see 40 C.F.R. § 1508.9 (1999), which can lead to a finding of no significant impact (FONSI), precluding the need for an EIS. See 40 C.F.R. § 1508.13.

257. Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558, 8 ELR 20288, 20297 (1978).

258. E.g., Ross v. Federal Highway Admin., 162 F.3d 1046, 1054-55, 29 ELR 20342, 20345 (10th Cir. 1998); Kettle Range Conservation Group v. BLM, 150 F.3d 1083, 1086, 28 ELR 21426, 21428 (9th Cir. 1998).

259. See generally Robert M. Lewis, Enforcing Executive Orders, 1998 ARMY LAW. 51 (discussing the use of Executive Orders in NEPA cases).

260. See National Wildlife Fed'n v. Adams, 629 F.2d 587, 592-93, 10 ELR 20959, 20961-62 (9th Cir. 1980) (finding support for the sufficiency of an EIS in the fact that the agency relied on a wetlands Executive Order in evaluating alternatives under NEPA); Ventura County v. Gulf Oil Corp., 601 F.2d 1080, 1086, 9 ELR 20653, 20655 (9th Cir. 1979) (noting that a remedy would exist if the agency failed to follow an Executive Order in its NEPA analysis).

261. Exec. Order No. 12898, 59 Fed. Reg. 7629, ELR ADMIN. MAT. 45075 (Feb. 11, 1994).

262. Citizens Concerned About Jet Noise v. Dalton, 48 F. Supp. 2d 582, 604, 29 ELR 21340, 21348 (E.D. Va. 1999).

263. U.S. Coral Reef Task Force, supra note 1.

264. Id. The FWS regulates eight National Wildlife Refuges scattered throughout the Pacific, four concentrated in the Florida reefs, and seven more in the Caribbean. Id. The National Park Service, in turn, oversees four Pacific sites, two Florida sites, and three Caribbean sites. Id. In addition, the Office of Insular Affairs manages Wake Atoll in the Pacific and Navassa Island in the Caribbean. Id.

265. 16 U.S.C. §§ 1-3.

266. Id. § 1a-1.

267. Id. § 1a-5(b)(2)(A), (B). In addition, in its study of new potential National Parks, the Secretary of the Interior must consider nine factors:

(i) the rarity and integrity of the resources;

(ii) the threats to those resources;

(iii) similar resources are already protected in the National Park System or in other public or private ownership;

(iv) the public use potential;

(v) the interpretive and educational potential;

(vi) costs associated with acquisition, development, and operation;

(vii) the socioeconomic impacts of any designation;

(viii) the level of local and general public support; and

(ix) whether the area is of appropriate configuration to ensure long-term resource protection and visitor use.

Id. § 1a-5(c)(3)(A).

268. Id. § 410qq(b) (enacted through Pub. L. No. 100-571, § 1, 102 Stat. 2879 (Oct. 31, 1988)).

269. Id. § 1a-7(b).

270. Id. § 3. However, "no natural curiosities, wonders, or objects of interest shall be leased, rented, or granted to anyone on such terms as to interfere with free access to them by the public . . . ." Id.

271. Id. § 1a-5(b)(2)(A), (B).

272. Id. § 1a-5(b)(3), (4).

273. Id. §§ 668dd-668ee.

274. Id. § 668dd(a)(2).

275. Id. § 668dd(b).

276. Id. § 668dd(c).

277. Id. § 668dd(f).

278. Id. § 668dd(a)(1), (3)(A).

279. Id. § 668dd(a)(3)(C).

280. Id. § 668ee(2).

281. Id. § 668dd(a)(4)(B).

282. Id. § 668dd(d)(1)(A), (3)(A)(I).

283. Id. § 668dd(e).

284. Id. §§ 1431-1445b.

285. Id. § 1433(a).

286. Id. § 1434.

287. Id. § 1436.

288. Id. § 1437(a), (b), (c).

289. Id. § 1443.

290. Id. § 1440.

291. Id. § 1442.

292. Id. § 1445b(a).

293. The five are: the Gray's Reef National Marine Sanctuary off the coasts of South Carolina, Georgia, and northern Florida; the Florida Keys National Marine Sanctuary; the Flower Garden Banks National Marine Sanctuary in the Gulf of Mexico; the Hawaiian Islands Humpback Whale National Marine Sanctuary; and the Fagatele Bay National Marine Sanctuary in American Samoa. National Oceanic & Atmospheric Administration, Marine Sanctuaries Home Page (visited Sept. 22, 1999) http://www.sanctuaries.nos.noaa.gov/oms/oms.html.

294. 16 U.S.C. § 1444.

295. H.R. 1243, 106th Cong. (1999).

296. 145 CONG. REC. H8410, H8415 (daily ed. Sept. 21, 1999) (voting to pass H.R. 1243).

297. 145 CONG. REC. S11253, S11253 (daily ed. Sept. 22, 1999) (noting receipt of H.R. 1243 from House).

298. H.R. 1243, 106th Cong. § 112 (1999).

299. Id. § 104(a).

300. Id. § 106.

301. Id. § 105(f).

302. H.R. REP. NO. 106-224, 1999 WL 493119, at <*>26 (July 12, 1999).

303. 16 U.S.C. §§ 1801-1883.

304. Id. § 1801(b)(1).

305. Id. §§ 1821(a)-(c), (f), 1824.

306. Id. § 1825(a), (b).

307. Id. § 1851(a)(1). Conservation and management measures must also, among other things, be "based upon the best scientific information available," id. § 1851(a)(2), and "take into account the importance of fishery resources to fishing communities in order to (A) provide for the sustained participation of such communities, and (B) to the extent practicable, minimize adverse economic impacts on such communities." Id. § 1851(a)(8).

308. Id. § 1852(a)(1). The eight are the New England, the Mid-Atlantic, the South Atlantic, the Caribbean, the Gulf, the Pacific, the North Pacific, and the Western Pacific Councils. Id.

309. Id. § 1851(h)(1).

310. Id. § 1853(a)(1)(A). The plan must also "specify objective and measurable criteria for identifying when the fishery to which the plan applies is overfished . . . ." Id. § 1853(a)(10).

311. Id. § 1853(b). However, management plans cannot use individual fishing quotas. Id. § 1853(d).

312. Id. §§ 1853(c), 1854(b).

313. Id. § 1857(1)(A).

314. Id. § 1858(a).

315. Id. § 1858(g).

316. Id. § 1859(b).

317. Id. § 1860(a).

318. 64 Fed. Reg. 60132 (Nov. 4, 1999).

319. Id.

320. 64 Fed. Reg. 59152, 59152-53 (Nov. 2, 1999); see also 48 Fed. Reg. 39255 (Aug. 30, 1983) (approving the Fishery Management Plan for Coral and Coral Reefs of the Gulf of Mexico and the South Atlantic).

321. 64 Fed. Reg. 32210 (June 16, 1999).

322. Id.

323. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA § 2-18.

324. Id. § 1531(b), ELR STAT. ESA § 2(b).

325. Id. § 1533(a)(1)(A), ELR STAT. ESA § 4(a)(1)(A).

326. Id. § 1533(b)(2), ELR STAT. ESA § 4(b)(2). In general, the ESA requires critical habitat to be designated at the same time that the species is listed, id. § 1533(b)(6)(C), ELR STAT. ESA § 4(b)(6)(C), but the listing agency can delay the designation if "critical habitat of such species is not then determinable." Id. § 1533(b)(6)(C)(ii), ELR STAT. ESA § 4(b)(6)(C)(ii).

327. Id. § 1532(5)(A), ELR STAT. ESA § 3(5)(A).

328. Id. § 1536(a)(2), ELR STAT. ESA § 7(a)(2).

329. Id. § 1538(a)(1)(A)-(C), ELR STAT. ESA § 9(a)(1)(A)-(C).

330. Id. § 1532(19), ELR STAT. ESA § 3(19).

331. 50 C.F.R. § 17.3 (1999).

332. Babbitt v. Sweet Home Chapter of Communities for a Great Or., 515 U.S. 687, 708, 25 ELR 21194, 21199 (1995).

333. However, it is also worth noting that the critical habitat for the Hawaiian monk seal includes the Pearl, Hermes, and Maro Reefs in Saipan. 64 Fed. Reg. 15749, 15750 (Apr. 1, 1999).

334. 47 Fed. Reg. 27295 (June 24, 1982).

335. 64 Fed. Reg. 15749, 15750 (Apr. 1, 1999).

336. Hawksbill Sea Turtle v. Federal Emergency Management Agency, 11 F. Supp. 2d 529, 29 ELR 20100 (D.V.I. 1998). The challengers showed that the turtles depended on nearby coral reefs and brought in experts to testify that the sediment-laden runoff from the construction project would jeopardize the coral reefs in the outer bay, smothering the coral and killing it. Id. at 535 n.9, 539, 29 ELR at 20102 n.9, 20104. However, they failed to provide evidence of direct harm to the turtles or that the coral reef habitat in the affected bay supplied the turtles' primary food source, id. at 540, 29 ELR at 20105, and FEMA had included mitigation measures in the construction project, id. at 543, 29 ELR at 20106, so the injunction was denied. Nevertheless, the potential power of the ESA to indirectly protect coral reefs was demonstrated.

337. 33 U.S.C. § 1311(a), ELR STAT. FWPCA § 301(a).

338. See id. § 1362(12), ELR STAT. FWPCA § 502(12) (defining "discharge of a pollutant" to mean "(A) any addition of any pollutant to navigable waters from any point source, (B) any addition of any pollutant to the waters of the contiguous zone or the ocean from any point source other than a vessel or other floating craft"); id. § 1362(14), ELR STAT. FWPCA § 502(14) (defining "point source" as "any discernible, confined and discrete conveyance"); id § 1362(6), ELR STAT. FWPCA § 502(6) (defining "pollutant" as "dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water"); id § 1362(7), ELR STAT. FWPCA § 502(7) (defining "navigable waters" to mean "waters of the United States, including the territorial seas").

339. Id. § 1328(a), ELR STAT. FWPCA § 318(a).

340. Id. § 1342(a), ELR STAT. FWPCA § 402(a).

341. Id. § 1344(a), ELR STAT. FWPCA § 404(a).

342. Id. § 1344(d), ELR STAT. FWPCA § 404(d).

343. Id. § 1343(a), ELR STAT. FWPCA § 403(a).

344. Id. § 1343(a), (c)(1), ELR STAT. FWPCA § 403(a), (c)(1).

345. Id. § 1319(b)-(d), (g), ELR STAT. FWPCA § 309(b)-(d), (g). For court actions, criminal penalties can range from $ 2,500 to $ 1 million, id. § 1319(c), ELR STAT. FWPCA § 309(c), and civil penalties can reach $ 25,000 per day of violation. Id. § 1319(d), ELR STAT. FWPCA § 309(d). Administratively assessed penalties can reach $ 125,000. Id. § 1319(g)(2)(B), ELR STAT. FWPCA § 309(g)(2)(B).

346. Id. § 1365(a), ELR STAT. FWPCA § 505(a).

347. Id. § 1362(12), (14), ELR STAT. FWPCA § 502(12), (14).

348. See discussion infra Part IV.B.4.

349. 33 U.S.C. § 1362(12)(B), (7), (8), ELR STAT. FWPCA § 502(12)(B), (7), (8).

350. Id. § 1321, ELR STAT. FWPCA § 311.

351. Id. § 1322, ELR STAT. FWPCA § 312.

352. 33 U.S.C. §§ 1401-1445.

353. Id. § 1411(a). Specifically, the Act declares that:

(1) no person shall transport from the United States, and (2) in the case of a vessel or aircraft registered in the United States or flying the United States flag or in the case of a United States department, agency, or instrumentality, no person shall transport from any location any material for the purpose of dumping it into ocean waters.

Id. In addition, no person can bring material from elsewhere and dump it into the territorial sea or the contiguous zone of the United States, Id. § 1411(b).

354. Id. § 1412(a). EPA must consider nine specific factors before issuing any permit, id. § 1412(a)(A) to (a)(I), and Congress has categorically forbidden permits for "radiological, chemical, and biological warfare agents, high-level radioactive waste, and medical waste." Id. § 1412(a).

355. Id. § 1417(c).

356. This is particularly true because EPA also has explicit authority to designate sites and time periods for dumping and to establish prohibitions for dump sites. Id. § 1412(c)(1), (2).

357. 33 U.S.C. §§ 1901-1915.

358. Id. § 1901(a)(3), (4).

359. Id. §§ 1901(a)(5), 1904(a).

360. Id. § 1902(a), (b).

361. Id. § 1903(a), (b).

362. Id. § 1904(a), (b), (c).

363. Id. § 1904(d).

364. Id. § 1904(e).

365. Id. § 1905(a).

366. Id. § 1905(c)(1). The certificates are valid for five years. Id. § 1905(c)(3)(A).

367. Id. § 1906(a).

368. Id. § 1908(a), (b).

369. Id. § 1908(a), (b).

370. Id. § 1910(a), (d).

371. 33 U.S.C. §§ 2701-2761, ELR STAT. OPA §§ 1001-7001.

372. Id. § 2702(a), (b), ELR STAT. OPA § 1002(a), (b). Discharges can be intentional or unintentional and include "spilling, leaking, pumping, pouring, emitting, emptying, or dumping." Id. § 2701(7), ELR STAT. OPA § 1001(7).

373. Id. § 2702(b)(A), ELR STAT. OPA § 1002(b)(A).

374. Id. § 2706(d)(1), ELR STAT. OPA § 1006(d)(1).

375. 16 U.S.C. §§ 1451-1465, ELR STAT. CZMA §§ 302-319.

376. Id. § 1452(2)(A), ELR STAT. CZMA § 303(2)(A).

The CZMA is one of the very few federal acts to even mention coral reefs. The "coastal zone," for purposes of the Act, is "the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and thereunder), strongly influenced by each other and in proximity to the shorelines of the several coastal states, and includes islands, transitional and intertidal areas, salt marshes, wetlands, and beaches." Id. § 1453(1), ELR STAT. CZMA § 304(1).

377. Id. § 1452(2), ELR STAT. CZMA § 303(2).

378. Id. § 1455(d)(2)(A), ELR STAT. CZMA § 306(d)(2)(A).

379. Id. § 1455(d)(2)(B), ELR STAT. CZMA § 306(d)(2)(B).

380. Id. § 1455(d)(2)(D), ELR STAT. CZMA § 306(d)(2)(D).

381. Id. § 1455(d)(2)(F), ELR STAT. CZMA § 306(d)(2)(F).

382. Id. § 1455(d)(11), ELR STAT. CZMA § 306(d)(11).

383. 58 Fed. Reg. 5182, 5183 (Jan. 19, 1993).

384. Pub. L. No. 101-508, § 6217, 104 Stat. 1388-314 (Nov. 5, 1990) (codified as 16 U.S.C. § 1455b).

385. 16 U.S.C. § 1455b(a)(1), available in ELR STAT. CZMA.

386. Id. § 1455b(c)(3), (4), available in ELR STAT. CZMA.

387. 63 Fed. Reg. 56146 (Oct. 21, 1998).

388. 16 U.S.C. § 1455(d)(16), ELR STAT. CZMA § 306(d)(16).

389. Id. § 1455b(b), available in ELR STAT. CZMA. Management measures, for purposes of nonpoint pollution control, are:

economically achievable measures for the control of the addition of pollutants from existing and new categories and classes of nonpoint sources of pollution, which reflect the greatest degree of pollutant reduction achievable through the application of the best available nonpoint pollution control practices, technologies, processes, siting criteria, operating methods, or other alternatives.

Id. § 1455b(g)(5), available in ELR STAT. CZMA.

390. 56 Fed. Reg. 27618, 27619 (June 14, 1991).

391. Id.

392. WORKING GROUPS OF THE U.S. CORAL REEF TASK FORCE, supra note 7, at 25. In addition, Michael L Ham of the Guam Coastal Management Program chairs the All U.S. Islands Working Group. Id. at 26.

393. 33 U.S.C. § 1329, ELR STAT. FWPCA § 319.

394. For example, California just enacted a new contaminated runoff law that "requires the state to develop tough enforcement policies that put real teeth into its runoff reduction program," while Virginia's program is insufficient on several grounds, including enforcement. Center for Marine Conservation, Regional Field Report, MARINE CONSERVATION NEWS, Autumn 1999, at 14.

395. S. 725, 106th Cong. § 3(5) (1999); H.R. 2903, 106th Cong. § 3(5) (1999); S. 1888, 106th Cong. § 3(3) (1999); S. 1253, 106th Cong. § 2(10) (1999); H.R. 3133, 106th Cong. § 2(10) (1999).

396. S. 1253, 106th Cong. §§ 11(a), 6(b), (d) (1999); S. 1888, 106th Cong. §§ 5(a), 4(c)(1), (d) (1999); H.R. 3133, 106th Cong. §§ 11(a), 6(b), (d) (1999).

397. S. 725, 106th Cong. §§ 7(a), 4(b), (d) (1999).

398. S. 2903, 106th Cong. §§ 5(a), 4(c) (1999).

399. S. 1253, 106th Cong. § 7(a) (1999); H.R. 3133, 106th Cong. § 7(a) (1999).

400. S. 1253, 106th Cong. § 8(1999); H.R. 3133, 106th Cong. § 8(1999).

401. S. 1253, 106th Cong. § 9 (1999).

402. H.R. 3133, 106th Cong. § 9(a)(1)(A), (B) (1999).

403. Id. § 9(a)(4).

30 ELR 10343 | Environmental Law Reporter | copyright © 2000 | All rights reserved