32 ELR 10190 | Environmental Law Reporter | copyright © 2002 | All rights reserved

Sustaining the Unknown Seas: Changes in U.S. Ocean Policy and Regulation Since Rio '92

[Editors Note: In June 1992, at the United National Conference on Environment and Development (UNCED) in Rio de Janeiro, the nations of the world formally endorsed the concept of sustainable development and agreed to a plan of action for achieving it. One of those nations was the United States. In September 2002, at the World Summit on Sustainable Development, these nations will gather in Johannesburg to review progress in the 10-year period since UNCED and to identify steps that need to be taken next. In anticipation of the Rio + 10 summit conference, Prof. John C. Dernbach is editing a book that assesses progress that the United States has made on sustainable development in the past 10 years and recommends next steps. The book, which is scheduled to be published by the Environmental Law Institute in June 2002, is comprised of chapters on various subjects by experts from around the country. This Article will appear as a chapter in the book. Further information on the book will be available at www.eli.org or by calling 1-800-433-5120 or 202-939-3844.]

Robin Kundis Craig is an Associate Professor of Law at Western New England College School of Law. She received her J.D. in 1996 from the Lewis & Clark School of Law; her Ph.D. in literature and science in 1993, from the University of California; and her M.A. in Writing About Science in 1986 from the Johns Hopkins University. In addition, from 1986 to 1988, Professor Craig taught marine biology and island ecology at the Catalina Island Marine Institute, Avalon, California.

[32 ELR 10190]

Introduction

Oceans cover more than 70% of our planet.¹ With an average depth "about five times the average elevation on land,"² the world's oceans hold "about 97% of the total water on earth"—a massive amount compared to the 0.02% of the earth's water found in inland lakes, channels, and seas.³ Oceans were the cradle of life on earth, supporting primitive life forms that arose "approximately 3.5 to 3.7 billion years ago."⁴ Today, scientists estimate that, conservatively, "more than 250,000 different types of plants and animals live in oceans"; some estimates run as high as 10 million species.⁵ In addition, water evaporating from oceans drives the earth's hydrological cycle⁶; "seawater dissolves large quantities of existing carbon dioxide (CO₂) from the atmosphere"⁷; and oceans play a significant role in the earth's weather.⁸

Despite the obvious importance of the oceans to the well-being of the world, however, our knowledge of this vast expanse is extremely limited. "We are better informed about the Moon and Mars than about the bottom of the ocean floor; we know more about the life cycle of stars than those of the sperm whale, giant squid, and many of the creatures sought by the world's fishing fleets."⁹ Given this ignorance, for much of history humans have looked at the ocean's size and refused to believe that they could do it any real harm. As little as a quarter of a century ago, the sustainability of the oceans seemed like a non-issue.¹⁰

By the early 1990s, however, it was becoming clear that humans could not only destroy individual marine species but also kill entire seas. For example, the Black Sea in eastern Europe once supported a complex ecosystem that included pike, sturgeon, sea grass nurseries, kelp forests, and monk seals.¹¹ However, as a result of "overfishing, oil spills, industrial discharges, nutrient pollution, wetlands destruction, [and] the introduction of alien species,"¹² its ecosystem collapsed by the late 1980s, replaced by the monotony of tons of alien jellyfish.¹³

Although earlier international agreements had recognized that certain specific resources of the ocean—generally fish and marine mammals—could be overexploited,¹⁴ [32 ELR 10191] Agenda 21 of the United Nations Conference on Environment and Development¹⁵ is the first worldwide acknowledgment that the oceans as a whole can be unsustainably used and hence need to be sustainably developed. Chapter 17 of Agenda 21 addresses ocean resources.¹⁶ Most basically, Chapter 17 recognizes that "the marine environment—including the oceans and all seas and adjacent coastal areas—forms an integrated whole that is an essential component of the global life-support system and a positive asset that present opportunities for sustainable development."¹⁷ Its overall goal is to develop "new approaches to marine and coastal areas management and development, at the national, subregional, regional, and global levels, . . . that are integrated in content and are precautionary and anticipatory in ambit"¹⁸—i.e, to transform countries' use of oceans and seas into a precautionary approach.

If successfully applied to ocean resources, the precautionary approach would be a profound shift in historical paradigms. Until the mid-1970s and 1980s, all of the oceans except relatively narrow (generally three-mile) bands off nations' coasts were considered international waters, and the international regime was largely "freedom of the seas,"¹⁹ including the freedom to exploit ocean resources without limit. World fisheries most obviously demonstrate coastal nations' continuing inability to extricate themselves from this "historical paradigm of inexhaustibility."²⁰ In the United States, "it's been a very slow process by which reality has sunk in about the need to conserve fish."²¹ Canada has exhibited similar slowness in managing its collapsing cod stocks.²² However, the paradigm of inexhaustibility also has governed attitudes regarding marine pollution and dumping of trash at sea. Revelations in the early 1990s of Soviet disposal of nuclear materials in the oceans off Norway disturbed the world,²³ and more routine disposal continues to affect the living creatures of the sea.²⁴

In the decade since the 1992 Rio Conference, the United States has only begun to shift away from the paradigm of inexhaustibility to a new paradigm of sustainable use and precautionary thinking. Efforts to achieve sustainable use have been and will continue to be hampered by a lack of knowledge about what healthy and sustainable oceans actually look like.²⁵ However, some basic aspects of sustainable use of the oceans are obvious, even if the specific regulatory standards that should be implemented are not. Sustainable use of the oceans requires that all activities, individually and collectively, both coastal and deepwater, preserve water quality sufficient to support the biological, chemical, and physical processes of the ocean without stress, so that oceans can support a variety of healthy ecosystems; nurture the plankton (small, sometimes microscopic, plants and animals that drift near the surface of oceans) that generate much of the earth's atmospheric oxygen and form the basis of all ocean food chains; deter outbreaks of pathogens and other harmful organisms; dissolve excess CO₂ from the atmosphere; and circulate in currents that aid human navigation, drive relatively predictable weather patterns, and cycle heat and nutrients throughout the depths and around the world. Sustainable development further requires that humans remove only the amount of biological resources—algae/seaweed, fish, marine mammals, coral, etc.—that those species can comfortably replace between human harvests and that will not disrupt the greater food webs and ecosystems of which those species are a part. In addition, species that are already overexploited need to be allowed to recover. Finally, sustainable use of the oceans requires that humans plan for their uses of the oceans, not just season to season but also through decades-long programs that recognize that human populations are increasing, especially along the coast; that many ocean and coastal ecosystems are fragile and easily stressed or destroyed; that the transition to sustainable use will require restriction and even elimination of jobs in overcapitalized sea-related industries; and that lack of information cannot be an excuse for business as usual but rather should serve as a warning that we really do not know what we are doing to ocean resources. As is often the case in protecting the environment, sustainable use of the oceans will require an initial period of increased regulation and displacement—or at least reconfiguration—of human activities to allow the precautionary approach to take hold and to re-figure use of the oceans as a limited privilege subject to restriction rather than as a historical and cultural right.

To achieve an international precautionary approach to and sustainable use of the oceans and seas, Chapter 17 of Agenda 21 outlines seven programs, the first four of which [32 ELR 10192] are the most applicable to the United States.²⁶ Together, these program areas—integrated management and sustainable development of coastal areas, marine environmental protection, marine living resources of the high seas, and marine living resources under national jurisdiction—cover the entire ocean geographically and ecologically and seek not only to sustainably develop the oceans but also to improve knowledge about this important resource.

A review of U.S. implementation of these four programs since 1992 reveals three general characteristics of its ocean regulation that it needs to review and rethink in the next decade. First, the United States has done a much better job of establishing and achieving measurable substantive goals for obvious problems with causes that are easy to identify and regulate than for longer term, more complex problems-in-the-making. For example, by 1992 the United States had already enacted strong mechanisms to address marine pollution from readily regulable sources and to protect charismatic marine species, such as marine mammals, that were easily identifiable as overhunted or otherwise endangered. In contrast, the United States has only recently begun to address multi-cause and less obvious problems in order to ensure a precautionary approach and sustainable development. For example, despite increasing signs that many commercial fish stocks are overfished, short-term fishing interests have generally prevailed over long-term conservation measures to ensure sustainable fisheries. Regarding marine pollution, the United States has been slow to address the multiplicity of sources of land-based runoff and even slower to impose substantive goals for reducing such pollution of the marine environment. These distinctions in regulatory focus and effect indicate that U.S. ocean policy has yet to fully embrace the precautionary approach and the necessary long-term thinking that sustainable use requires. They also indicate that U.S. regulation often falters when information about marine ecosystems and humans' effects on them is incomplete or inconclusive. In the next 10 years, therefore, the United States needs to substantially increase its knowledge base regarding the marine ecosystems under its jurisdiction, and the information sought should bebroad in scope—historical, biological, chemical, ecological, and physical/geological. In addition, the United States should more fully integrate a longer term, multi-generational perspective into ocean regulation.

Second, the United States has, since 1992, generally continued to regulate ocean resources on a resource-by-resource and species-by-species basis. As a result, the United States currently regulates water quality as a separate issue from species preservation, ocean mineral extraction as a separate issue from habitat preservation, and individual species as unrelated to each other. The practical result is that the United States lacks a single coherent policy regarding its marine resources, which are instead managed through a sometimes bewildering array of federal, state, and local laws, implemented through numerous federal, state, and local regulatory entities whose missions and priorities do not always dovetail neatly. Resource-by-resource regulation has also meant that, until very recently, no regulatory authority has addressed the use of oceans on an ecosystem basis. Recent scientific studies, however, indicate that human impacts on marine ecosystems are not only cumulative but synergistic—i.e., that the combined effect of, for example, overfishing and pollution can be far more detrimental to a marine ecosystem than the individual effects of both, viewed in isolation, would suggest. Therefore, in the next 10 years, the United States should work to increase its nascent efforts in ecosystem-based ocean management and to coordinate the multiplicity of programs that affect its marine environment into a coherent ocean management policy with clear goals and consistent management priorities.

[32 ELR 10193]

Finally, regulation of the oceans in the United States has been complicated by its system of federalism, which divides governmental authority between the federal government and the state and territorial governments. As will be discussed in the next section, federalism multiplies the number of governmental authorities that can affect the ocean environment not only with respect to land issues, such as land-based pollution and coastal zone management, but also with respect to the sea itself. Federalism has also ensured that when the federal government has sought to address nationally certain ocean-related issues, such as land-based runoff or coastal zone management, its primary focus has been procedure—the fact of state planning—rather than substantive goals. The result, like resource-by-resource management, has been an improvement over no planning but still leaves large areas of the oceans and coasts subject to significant variations in actual management. Thus, in the next decade, the United States should reevaluate the relative weight of national and state interests in the coastal zone, then identify and find ways to impose substantive goals for that zone that will address the effects of the growing numbers of Americans who want to live and work by the sea.

I. The Background for Implementing Chapter 17 of Agenda 21: Ocean Jurisdiction, UNCLOS III, and Regulation of Ocean Waters in the United States

A. The 1982 United Nations Convention on the Law of the Sea

International law recognizing coastal nations' jurisdiction over the ocean and its resources is an important precedent to sustainable development, particularly in light of the historical tradition of freedom of the seas. For this international regulatory structure, Chapter 17 depends heavily upon the 1982 United Nations Convention on the Law of the Sea (UNCLOS III),²⁷ which came into force on November 16, 1994.²⁸

UNCLOS III establishes several zones of control over the world's oceans, building on prior Conventions on the Law of the Sea and customary international law. First, the area beyond national control is the high seas, where UNCLOS III preserves the traditional notion of "freedom of the seas."²⁹ Second, the band of ocean closest to a coastal nation's shore is the territorial sea. UNCLOS III expands a signatory nation's territorial sea from the prior general international consensus of 3 miles to 12 miles and gives each nation sovereignty over the waters, the airspace, the seabed, and the subsoil within that band,³⁰ subject to peaceful ships' right of innocent passage.³¹ Third, immediately beyond the territorial sea is the contiguous zone, which extends 24 miles from shore.³² Coastal nations can use the contiguous zone to enforce laws relating to activities in the territorial sea.³³ Fourth, UNCLOS III gives signatory nations "the exclusive right to authorize and regulate drilling on the continental shelf for all purposes,"³⁴ subject to the right of other nations to lay cables and pipes over the shelf.³⁵ The continental shelf extends throughout "the natural prolongation of [a coastal nation's] land territory to the outer edge of the continental margin, or to a distance of 200 miles,"³⁶ allowing coastal nations to control at least 200 miles of "seabed and subsoil."³⁷

Finally, UNCLOS III establishes a new, broad zone called the exclusive economic zone (EEZ).³⁸ A coastal nation's EEZ can extend 200 nautical miles out to sea,³⁹ and within that broad band the coastal nation has "sovereign rights to explore, exploit, conserve, and manage the natural resources, "whether living or non-living," in the waters, seabed, and subsoil, plus rights to explore and exploit the EEZ economically, plus jurisdiction over marine research and conservation.⁴⁰ With regard to conservation, coastal states "determine the allowable catch of the living resources" in their EEZs,⁴¹ "taking into account the best scientific evidence available" and ensuring that the EEZ's living resources are "not endangered by over-exploitation."⁴² Foreign fishing fleets must comply with the coastal nation's conservation and management regulations,⁴³ which coastal nations can enforce.⁴⁴

With regard to "international" stocks of living resources, signatory nations must cooperate to manage straddling stocks⁴⁵ that live in two or more countries' EEZs and highly migratory species,⁴⁶ such as tuna, that travel great distances in the open ocean. In addition, signatory nations have a duty to "take measures which are designed . . . to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield,"⁴⁷ even in the high seas. Given the lack of national sovereignty over these seas, however, conservation measures for high seas living resources must be achieved through international cooperation.⁴⁸

[32 ELR 10194]

More generally, UNCLOS III states baldly that signatory nations "have the obligation to protect and preserve the marine environment."⁴⁹ Its preservation focus, however, is marine pollution: signatory nations "shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce, and control pollution of the marine environment . . . ."⁵⁰ The duty is comprehensive, extending to "all sources of pollution of the marine environment."⁵¹ UNCLOS III also leaves in force all other international agreements regarding protection of the marine environment.⁵²

Finally, UNCLOS III recognizes the importance of marine research to the world and includes comprehensive provisions governing such research.⁵³ Signatory nations "shall promote and facilitate the development and conduct of marine scientific research,"⁵⁴ but the exact availability of such research depends upon where it is being conducted.⁵⁵

B. Jurisdiction Over the Oceans in the United States

Although UNCLOS III provides a foundation for Chapter 17 of Agenda 21, its framework becomes more complex when translated to the United States. First, the United States has signed but not ratified UNCLOS III.⁵⁶ Nevertheless, the United States has treated UNCLOS III's establishment of a 12-mile-wide territorial sea, 24-mile-wide contiguous zone, 200-mile-wide EEZ, and extensive continental shelf as customary international law and has claimed each of these jurisdictional zones for itself through statutes and presidential proclamations.⁵⁷ As a result, the United States controls "more than 4 million square miles of ocean territory, the largest and richest in the world"⁵⁸—an area larger than the land mass of the country.⁵⁹ Although U.S. commitment to all of UNCLOS III's obligations and responsibilities is less clear, in 1997 the United States did note that UNCLOS III "continues to serve as a comprehensive framework with respect to the uses of the oceans."⁶⁰

Second, the U.S. system of federalism divides regulatory power between the federal government and the 50 state governments, and this division of regulatory authority extends to the oceans. The history of ocean regulatory authority in the United States is convoluted,⁶¹ but under the Submerged Lands Act of 1953,⁶² coastal states received title to the lands beneath and control over coastal waters at least three miles out to sea,⁶³ subject to the federal government's regulation for "commerce, navigation, national defense, and international affairs . . . ."⁶⁴ Therefore, the general pattern of ocean regulatory jurisdiction in the United States is that the coastal states control the waters, seabed, subsoil, and attendant natural resources out to 3 miles, while the federal government regulates the zone from 3 to 12 miles as its sovereign territorial sea, the zone from 12 to 24 miles as its contiguous zone, the zone from 3 to 200 miles as its EEZ, and the entirety of its continental shelf beyond 3 miles, out to at least 200 miles. This division of regulatory authority complicates any attempt to regulate uniformly the oceans under U.S. jurisdiction, particularly with respect to coastal zone management and pollution regulation.

[32 ELR 10195]

II. U.S. Progress Toward Sustainable Development of the Oceans, Program by Program

A. Integrated Management and Sustainable Development of Coastal Areas, Including EEZs

1. The Importance of the Coastal Zone

The place where the waters of the seas meets the land—the coasts—are indeed unique places in our global geography. They are unique in a very real sense as sites for port and harbor facilities that capture the large monetary benefits associated with waterborne commerce and as locations for industrial processes requiring water cooling, such as power generation plants.⁶⁵

One-half of the world's population lives near a coast; "two-thirds of the world's largest cities are located on coasts and populations of coastal areas are growing faster than inland populations."⁶⁶

Although popular areas, coastal zones in many ways are unsuitable for human development, particularly development immediately adjacent to the sea. The zone where the ocean meets the land is a zone of constant change, from daily tides to yearly rhythms of sand accumulation and depletion to sudden (and for humans, often devastating) rearrangements and poundings in sea-born storms, including hurricanes. Human development, in contrast, seeks to stabilize and make permanent these shoreline areas, often with disastrous results.

Nevertheless, replicating world statistics, the coasts are extraordinarily popular areas with Americans. About one-half of the U.S. population lives in the narrow coastal fringe,⁶⁷ within this country's 673 coastal counties.⁶⁸ Even when he or she does not live on the coast, moreover, "the average American spends 10 recreational days on the coast each year. In 1993 more than 180 million Americans visited ocean and bay beaches—nearly 70% of the U.S. population. Coastal recreation and tourism generate $ 8 to $ 12 billion annually."⁶⁹

Large and growing coastal populations interfere with sustainable development of coastal areas by polluting, overusing, and destroying several kinds of productive and diverse ecosystems. Some of the most vital areas of the coastal zone are coastal wetlands, which include estuaries, salt and tidal marshes, and mud flats.⁷⁰ All wetlands provide critical habitat and ecosystem services.⁷¹ For example, wetlands vegetation can protect coasts from erosion "by slowing runoff and by evenly distributing the energy in runoff."⁷² Estuaries, however, are particularly important. "An estuary is the area in which the ocean tides meet a river current, with the river's freshwater diluting the saltwater,"⁷³ and this special environment, not quite freshwater, not quite marine, breeds species diversity.⁷⁴ "Estuaries provide habitat for more than 75% of America's commercial fish catch, and for 80-90% of the recreational fish catch. Estuarine-dependent fisheries are among the most valuable within regions and across the nation, worth more than $ 1.9 billion in 1990, excluding Alaska."⁷⁵ In addition, "the vegetation in estuaries works as a natural filter: Grasses, seaweeds, and other plant life slow fast-flowing waters and remove certain pollutants from them as the tide rises and falls."⁷⁶

Physical aspects of the coastal zone are also critical to that zone's continued integrity and productivity. Beaches, for instance, buffer more inland areas against storms and seasonal changes in ocean currents, but they can only perform these functions if sand is free to flow along the coastline. Beach developments, breakwaters, groins, and causeways throughout the United States disrupt the natural flow of sand, often leaving sand-starved eroded wastelands where beautiful and functional beaches used to be.

2. Sustainable Development in the Coastal Zone and Agenda 21

Sustainable development of the coastal zone requires that governments plan for and control continuing growth so that the natural features of this zone—estuaries, beaches, bays, and so forth—can continue to respond to and function within the continual processes of change that are the most prevalent feature of the nation's coasts. Acknowledging these realities, Chapter 17's first program relies heavily on planning and management to achieve sustainable development of the coastal zone. It begins by emphasizing three basic facts: (1) the coastal zones of the world are densely populated, often by poor communities, and are likely to become even more so as the 21st century progresses⁷⁷; (2) coastal areas [32 ELR 10196] and the EEZ are important resources that benefit these populations⁷⁸; and (3) "coastal resources and the coastal environment are rapidly being degraded and eroded in many parts of the world."⁷⁹ Under this program, coastal nations "commit themselves to integrated management and sustainable development of coastal areas and the marine environment under their national jurisdiction,"⁸⁰ largely through coastal zone management procedures, including applying "preventive and precautionary approaches . . . ."⁸¹

To achieve sustainable development of the coastal zone, however, coastal zone planning must recognize that human development on the coast attempts to impose stability and permanence on real estate that is by nature transient or cyclical and must resolve that tension in ways that preserve the various functions of the natural coast. Thus, planning should include measures to protect and preserve coastal wetlands, including establishment of wetland reserves and zoning restrictions to limit development on top of functional coastal ecosystems—particularly development, like housing, that does not require immediate access to the sea. Similarly, coastal planning should work to protect and preserve beaches by minimizing structures that interrupt the natural patterns of beach nourishment. In addition, such planning should encourage the growing numbers of coastal residents to settle inland of the immediate coastal zone, in developments with small footprints designed to minimize runoff of water and pollutants and coastal erosion and to maximize green belts, pollution control, and containment of urban runoff and sewage to prevent untreated overflows from reaching the sea. Chapter 17 is more general in its approach, but it does note that coastal zone management and planning procedures should include "land and water use and siting policies"⁸²; identify "critical areas" of the coast, "including eroded zones"⁸³; require "prior environmental impact assessment"⁸⁴; provide for "conservation and restoration of altered critical habitats"⁸⁵; and develop and implement "environmental quality criteria."⁸⁶

In the coastal sea, sustainable development requires that government protect and preserve sensitive offshore ecosystems, such as coral reefs, and to maintain ocean water quality despite land-and sea-based pollution. The precautionary principle might even require a presumption, at least in coastal areas that are already densely populated, against further development and sea traffic, especially if the coastal environment cannot adequately perform its functions of water filtration, erosion control, and habitat for marine species. Chapter 17 admonishes coastal nations to maintain the biological diversity of marine species in the areas under national jurisdiction and to maintain the productivity of marine ecosystems.⁸⁷

Finally, sustainable development of the coastal zone becomes much easier when coastal populations understand the importance of the coast's ecosystems and natural functions. In keeping with the theme of improving information that runs throughout Chapter 17, coastal nations should develop "public education, awareness and information programs" about the coastal zone,⁸⁸ improve their information regarding marine ecosystems and species,⁸⁹ and cooperate internationally, especially with developing nations,⁹⁰ with regard to knowledge, experience, education, guidelines, information exchange, and continuing observation of the ocean and coasts.⁹¹

3. Coastal Zone Management in the United States

As noted, the primary focus of Chapter 17's first program is on the process of coastal zone planning. The United States had laws in place significantly before the Rio Conference in 1992 to encourage coastal zone management and has since achieved nearly full participation in these programs. Procedurally, therefore, the United States is nearly fully compliant with the Rio Conference's goals. Coastal zone management, however, should also achieve the substantive goal of sustainable use and development, and here the United States can still make progress. While it is clear that coastal zone management has prevented or controlled the rate of degradation of U.S. coastal zones in certain areas, much of the coastal zone is nevertheless degraded. In addition, population projections indicate that human-caused pressures on the coastal zone will only increase in the foreseeable future. Therefore, in order to achieve sustainable development of the coastal zone, the United States needs to move beyond the mere fact of planning to planning that achieves specific national goals for the nation's coasts.

Given the division of jurisdictional authority between states and the federal government three miles out to sea, coastal zone management in the United States is largely the province of the various coastal states. Nevertheless, seeking to prod states into more effective coastal zone management, the federal government in 1972 enacted the Coastal Zone Management Act (CZMA),⁹² through which the federal government has bribed and cajoled coastal states into enacting comprehensive coastal zone management plans that, coincidentally, meet Chapter 17's goals. The CZMA was the major regulatory framework for protecting U.S. coastal zones in 1992 and remains so today.

In the CZMA, Congress found that "there is a national interest in the effective management, beneficial use, protection and development of the coastal zone,"⁹³ which it defined as "the coastal waters (including the lands therein and thereunder) and the adjacent shorelands (including the waters therein and thereunder)," including "islands, transitional and intertidal areas, salt marshes, wetlands, and beaches" along both marine shores and the Great Lakes.⁹⁴ Congress also established a national policy "to preserve, protect, develop, and where possible, to restore and enhance, [32 ELR 10197] the resources of the Nation's coastal zone for this and succeeding generations"⁹⁵—a policy of sustainable use and development, at least in words.

Under the Act, the federal government gives money and technical assistance to states that enact comprehensive coastal zone management programs. These state programs must include 16 elements in order to qualify for federal grants,⁹⁶ including delineation of the state's coastal zone⁹⁷; designations and prioritization of land and water uses in various areas of that zone, including conservation and preservation uses⁹⁸; and, since 1990, "enforceable policies and mechanisms" to address nonpoint source pollution—water pollution from diffuse sources such as runoff.⁹⁹ In addition, once a coastal state has an approved program, the federal government must ensure that federal activities and federally permitted private activities are consistent with the state program when those activities take place in or might affect the state's coastal zone.¹⁰⁰

In enacting the CZMA, the United States became the first developed nation in the world "to create a national state-oriented program of coastal management through national legislation."¹⁰¹ Thirty-five coastal states and territories can participate in the CZMA's program.¹⁰² The West Coast was the first to be protected, with Washington State receiving the first CZMA program approval in 1976,¹⁰³ followed by Oregon and California in 1977.¹⁰⁴ By 1990, only five coastal states did not have an approved CZMA program, and only one of those (Texas) has a marine coast.¹⁰⁵ In addition, American Samoa, Guam, the Mariana Islands, Puerto Rico, and the U.S. Virgin Islands each had an approved CZMA program before the Rio Conference in 1992.¹⁰⁶

To help deter further development in the coastal zones, Congress removed many federal subsidies supporting construction in the coastal zone in the 1982 Coastal Barrier Resources Act.¹⁰⁷ The Act protects the remaining undeveloped coastal barrier areas¹⁰⁸ and provides that "no new expenditures or new financial assistance may be made available under authority of any Federal law for any purpose"¹⁰⁹ in those areas, subject to certain exceptions.¹¹⁰ In addition, for other areas, the Act prohibits new federal flood insurance coverage or assistance from Housing and Urban Development programs when such funding is inconsistent with the Act's purposes.¹¹¹

Wetlands and estuaries received specific and varied protection under federal law before the Rio Conference. The CZMA, for example, created the National Estuarine Research Reserve System, a nationwide network of estuary reserves.¹¹² Amendments to the federal Clean Water Act (CWA)¹¹³ in 1987 established the National Estuary Program,¹¹⁴ allowing state governors to nominate estuaries "of national significance and request a management conference to develop a comprehensive management plan for the estuary."¹¹⁵ More generally, today as in 1992, CWA § 404 regulates dredging and filling in the nation's "navigable waters,"¹¹⁶ which include coastal wetlands.¹¹⁷ Therefore, any person who seeks to dredge or fill coastal wetlands, as in a coastal construction project, must have a permit from the [32 ELR 10198] U.S. Army Corps of Engineers.¹¹⁸ Moreover, because dredging and filling is a federally permitted activity occurring in the coastal zone, the CZMA's consistency provisions also apply, and the relevant coastal state also has the right under the CWA to impose conditions on any proposed CWA § 404 permit.¹¹⁹

By 1992, therefore, the United States had already enacted fairly extensive programs to manage the coastal zone and to protect its wetlands and estuaries. Moreover, although baseline data are largely missing, "it is clear that the CZMA program has, in thousands of instances around the U.S. shoreline, prevented inappropriate coastal development, fostered public access to the coast, served to protect fragile coastal resources such as wetlands, and protected the public from coastal hazards."¹²⁰

Nevertheless, the CZMA and CWA programs have been insufficient to prevent overall degradation of the nation's coastal zones or to make significant progress in restoring degraded areas, particularly degraded wetlands. Neither the CZMA nor the CWA explicitly incorporates a precautionary approach, and coastal development has only increased in the last decade. Moreover, although data are largely unavailable that would allow accurate comparisons of the nation's coastal zones across time,¹²¹ in January 2001, the U.S. Environmental Protection Agency (EPA) rated the overall national coastal condition as being somewhere between "poor" and "fair."¹²² More specifically, while coastal water quality is generally "good," pollutants have been accumulating in the tissues of marine organisms, leading EPA to rate that aspect of the coastal environment as "fair."¹²³ In addition, approximately 58% of the nation's coastline miles have been under fish consumption advisories, particularly along the Gulf Coast (100%) and Atlantic Coast (62%).¹²⁴ Coastal sediments and the benthic creatures living near them are in "poor" condition; eutrophic (oxygen-deprived) conditions also received a "poor" rating overall.¹²⁵ In addition, the EPA-rated coastal wetland loss received "poor" because 50% of such wetlands were lost in the United States between 1780 and 1980.¹²⁶ Qualitatively:

About 56% of estuaries in the continental United States are in good condition for supporting aquatic life use (animal and plant communities) and human uses (such as drinking water, agriculture, swimming, and boating) . . . . About 34% of the estuarine area shows evidence of impaired aquatic life use and 33% of the area shows evidence of impaired human use based on available data. In fact, 23% of estuarine area in the United States is degraded for both aquatic life and human uses.¹²⁷

The report also makes clear that most of the stresses to coastal zones come directly from their human populations.¹²⁸

If current projections are correct, population pressures will impede restoration and preservation of the coastal zone for decades to come and may result in further degradation of coastal wetlands, beaches, and waters and the services they provide, despite fairly extensive state and federal regulation. In its 1998 State of the Coast Report, the National Oceanic and Atmospheric Administration (NOAA) noted that the coastal zone—"comprising 17% of the continuous U.S. land area—[was] home to more than 53% of the nation's population," and the coastal population "is increasing by 3,600 people per day, giving a projected total increase of 27 million people between now and 2015,"¹²⁹ a growth rate "faster than that for the nation as a whole . . . ."¹³⁰ Economic losses from natural disasters (hurricanes, tsunamis, coastal erosion) are also projected to increase.¹³¹ "Population pressures include increased solid waste production, higher volumes of urban nonpoint runoff, loss of green space and wildlife habitat, declines in ambient water and sediment quality, and increased demands for wastewater treatment, potable water, and energy supplies."¹³² In addition, "development pressures have resulted in substantial physical changes along many areas of the coastal zone. Coastal wetlands continue to be lost to residential and commercial development, while the quantity and timing of freshwater flow, critical to river and estuarine function, continue to be altered."¹³³

Some progress has been made in the last decade. The CZMA remains the most comprehensive coastal planning program in the United States,¹³⁴ and, as of August 2001, only Illinois still lacks a program for its small section of the Great Lakes coast.¹³⁵ Moreover, states have increasingly enacted policies that should help to preserve the quality and natural functions of the coastal zone. While restricting population movement to the coasts is obviously unconstitutional and impractical, the states and territories have responded to coastal population pressure by giving priority to water-dependent uses, discouraging other kinds of development, and today such policies "cover 97% of the U.S. shoreline."¹³⁶ [32 ELR 10199] In addition, "most coastal states have adopted statewide building codes that incorporate some type of standards for hazard-resistant construction, one of the most cost-effective measures for mitigating disaster damages."¹³⁷ Coastal monitoring programs increased throughout the 1990s and continue to improve,¹³⁸ helping to ensure that lack of information will no longer be an excuse for lack of action.

Nevertheless, new levels of management and planning are needed to address these increasing population pressures in the coastal zone. The CZMA has not been significantly amended since 1990. State and territorial CZMA programs vary considerably,¹³⁹ and efforts to include marine as well as land activities are a relatively recent development.¹⁴⁰ In addition, new threats to coastal populations have emerged since the Rio Conference, particularly threats from marine infectious agents. Such problems are typical of degraded coastal areas.¹⁴¹ Although 56 states and territories have water quality standards for bacteria, and the coastal states and territories apply such standards to their marine waters,¹⁴² 33% of the nation's beaches "had an advisory and/or closing in effect at least once during 1998 . . . ."¹⁴³ "The most frequent sources of disease-causing micro-organisms (pathogens) are sewage overflows, polluted storm water runoff, sewage treatment plant malfunctions, boating wastes, and malfunctioning septic systems."¹⁴⁴

Both EPA and Congress have recently addressed the problem of marine pathogens. In 1997, EPA instituted the Beaches Environmental Assessment, Closure, and Health (BEACH) Program "to significantly reduce the risk of infection to users of the nation's recreational waters through improvements in recreational water programs, communication, and scientific advances."¹⁴⁵ Two years later it published its Action Plan for Beaches and Recreational Waters,¹⁴⁶ and its programs received a significant legislative boost in 2000, when Congress passed the Beaches Environmental Assessment and Coastal Health (BEACH) Act of 2000.¹⁴⁷ This Act amends the CWA to require states to establish coastal recreation water quality standards for the pathogens that the EPA Administrator designates.¹⁴⁸ The CWA then requires all coastal states to ensure that ocean water quality actually meets these standards.¹⁴⁹

Despite the fact that "the United States has perhaps the most elaborate legal framework in the world for management of ocean and coastal resources,"¹⁵⁰ other problems remain in ensuring sustainable development of its coastal zone. The CZMA is primarily process-oriented and imposes very few substantive standards on states.¹⁵¹ The program also needs greater ties to science and greater coordination between state and federal efforts,¹⁵² and "with a few exceptions, . . . state [coastal zone management] programs continue to be focused primarily on traditional shoreland uses in the coastal zone."¹⁵³ Sustainable development of U.S. coastal zones—particularly given the projected population increases—will require integrated management of both land and water resources and increased coordination between all levels of government.

4. Specific Recommendations for the Next 10 Years

In the next 10 years, the United States should more substantively address problems that population pressures on the coastal zone create. As has been noted, currently the CZMA is primarily a procedure-oriented statute, focused more on getting states to enact management plans for their coastal zones than on achieving specific national goals for those zones. Now that almost all eligible states and territories have coastal zone management plans, Congress should take the next step and amend the CZMA to include more substantive goals for and a precautionary approach to coastal development. For example, the Act currently requires state programs to "includee procedures whereby specific areas [32 ELR 10200] may be designated for the purpose of preserving or restoring them for their conservation, recreational, ecological, historical, or esthetic values"¹⁵⁴ but does not require or otherwise encourage the states to actually designate any such areas. Congress could amend this provision to condition future federal funding on (or to provide additional federal funding for) states designating a certain percentage of their coastal acreage—preferably wetlands, beaches, mangrove forests, and other such areas—as undevelopable preserves. Similar amendments could encourage states to protect sensitive marine species and ecosystems, preserve coral reefs, discourage nearshore coastal development, address boating and recreational use issues, and to adopt a precautionary presumption that further development within a certain distance of the mean high tide line is prohibited.

Even with such amendments, however, the Fifth Amendment of the U.S. Constitution will complicate states' efforts to preserve and protect the natural features and ecosystems of the coastal zone. Under the U.S. Supreme Court's interpretation of the Fifth Amendment's Takings Clause,¹⁵⁵ states cannot deprive coastal landowners of all the economic value of their land—such as by zoning the property unbuildable—without paying the owner just compensation.¹⁵⁶ As a practical matter, therefore, the Fifth Amendment makes developmental restrictions and restoration of natural areas along the ocean prohibitively expensive for states in those areas where states most need to insist on such restrictions and restoration—areas like the southern California coast, where buildings and streets form an almost unbroken covering for hundreds of miles along the ocean.

Nevertheless, over one-half of the U.S. population already lives in the coastal zone, making sustainable developmentof that zone a national as well as state issue. Neither individual property owners nor state and local governments nor the nation as a whole will profit if large sections of the U.S. coasts become so choked with human development and its attendant pollution and wastes that beaches completely disappear, wetlands are filled in or die, coastal sediments are toxic wastes, and fish and shellfish are poisonous. In the next 10 years, therefore, the federal government should decide that: (1) preserving viable coastal zones for future generations is a national priority; and (2) preserving functional nearshore and offshore ecosystems and the services that they provide for the future requires buying, restoring, and preserving coastal property now, particularly functional wetlands and other buffer areas between the land and sea. Only by ensuring that coastal lands and coastal waters have sufficient freedom to interact with one another under conditions that preserve their functional integrity as biological, chemical, and physical systems can we hope to ensure that the coastal zone will continue to be a highly productive and desirable place to live and work.

B. Marine Environmental Protection

1. Sources and Impacts of Marine Pollution

Chapter 17's second program, Marine Environmental Protection, focuses on marine pollution. Maintaining and restoring the quality of marine waters is essential to sustainable development of the oceans. Depending on the type, marine pollution can: (1) block sunlight, interfering with photosynthesis in phytoplankton (small drifting plants such as diatoms), coral, and marine plants, which form the base of marine food chains and produce large quantities of oxygen; (2) induce chemical and biological reactions that use up the available dissolved oxygen, suffocating fish and shellfish; (3) acutely poison marine organisms, killing or weakening them; (4) bioaccumulate, or concentrate through biological processes, in the tissues of marine organisms, interfering with the organism's long-term health and poisoning the food chain of which it is a part; or (5) physically harm marine organisms and ecosystems, as when oil coats seabirds, plastic ropes entangle whales, or drifting nets destroy kelp forests. Sustainable development of the oceans for future generations will be impossible if ocean waters deteriorate so badly that they cannot support the physical, chemical, and biological processes that marine organisms and other ocean resources require. Moreover, even when marine pollution does not immediately interrupt ocean processes or kill large numbers of marine organisms, it can still stress the ocean environment, reducing the seas' productivity and leaving marine species and ecosystems more vulnerable to disease and natural disasters.

The popular image of marine pollution is an ocean-based oil spill, such as the 1989 Exxon Valdez disaster off the coast of Alaska. Carried into state and federal legislatures, however, this image undermines U.S. ability to sustainably maintain ocean water quality, because the most important sources of marine pollution are not ocean-based. Oil pollution is a good example of the land/sea source split in marine pollution: "The world's oceans receive about 3.25 million tons of oil each year—with the majority of oil coming from street runoff along the coasts rather than tanker spills."¹⁵⁷

Overall, by weight, discharges and runoff from land account for 44% of marine pollution; airborne land emissions for 33%; accidental spills and shipping for 12%; ocean dumping for 10%; and offshore oil and gas drilling and mining for 1%.¹⁵⁸ Runoff from land sources carries to the oceans "excess fertilizers, herbicides, and insecticides from agricultural lands and residential areas"; "toxic chemicals from urban runoff and energy production"; "sediment from improperly managed construction sites, crop and forest lands, and eroding streambanks"; "salt from irrigation practices and acid drainage from abandoned mines"; and "bacteria and nutrients from livestock, pet wastes, and faulty septic systems . . . ."¹⁵⁹ Two of the three leading sources of water quality impairment in estuaries, for example, are urban runoff and agricultural runoff.¹⁶⁰

[32 ELR 10201]

Besides directly polluting the ocean, runoff also has been associated with increased numbers of harmful algal blooms (HABs).¹⁶¹ For example, two types of single-celled marine dinoflagellates, Gonyaulax and Gymnodium, "multiply when there is a profusion of nitrogen and phosphorus [as from fertilizer runoff],¹⁶² warm temperatures, and little competition."¹⁶³ During a "bloom," these microscopic plants cause a "red tide," producing neurotoxins that shellfish accumulate when they eat the algae, rendering the shellfish unfit for human consumption.¹⁶⁴ HABs also create marine "dead zones," more scientifically known as eutrophic zones. Algae blooms often use up all of the dissolved oxygen in a given area of the ocean,¹⁶⁵ rendering that area unable to support life. The largest eutrophic zone in the United States, occupying 7,000 square miles, recurs every spring and summer in the Gulf of Mexico off the mouth of the Mississippi River, causing massive fish kills.¹⁶⁶

Runoff is one type of nonpoint source pollution—that is, pollution from diffuse, hard-to-regulate sources.¹⁶⁷ Another type of nonpoint source of pollution into the oceans is atmospheric deposition of pollutants. "These pollutants come from man-made sources such as the burning of fossil fuels, industrial processes, cars and other forms of transportation, fertilizer, and the volatilization of animal wastes."¹⁶⁸ Such pollutants can settle out of the air directly onto marine waters or settle onto land and be carried to the ocean in runoff.¹⁶⁹ The most problematic of these pollutants are nutrients, such as nitrogen compounds, and toxic pollutants that persist in the environment and bioaccumulate in the tissues of marine organisms, such as mercury, dichlorodiphenyltrichloroethane (DDT), polychlorinated biphenyls (PCBs), and dioxins.¹⁷⁰ "It is estimated that anthropogenic mercury emissions have tripled the mercury concentration in the air and in the surface of the ocean since 1900," and, although locales vary, "roughly 10-40% of the nitrogen that reaches East and Gulf Coast estuaries is transported and deposited via the atmosphere."¹⁷¹ Sulfur dioxide (SO₂) and nitrogen compounds in the air can also cause acid rain, which acidifies the water it falls on, killing marine plants and animals,¹⁷² and air deposition of nitrogen compounds contributes to HABs and eutrophication.¹⁷³

2. Agenda 21's Provisions

Chapter 17's second program seeks to halt and reverse degradation of the marine environment from various sources of pollution. Much of this program deals with land-based pollution, especially because "no global scheme to address marine pollution from land-based sources" currently exists.¹⁷⁴ Chapter 17 recognizes that several land-based activities contribute to marine degradation, including "human settlements, land use, construction of coastal infrastructure, agriculture, forestry, urban development, tourism and industry"; "coastal erosion and siltation are of particular concern."¹⁷⁵

To address land-based pollution, nations "should take account of the Montreal Guidelines for the Protection of the Marine Environment From Land-Based Resources."¹⁷⁶ These guidelines provide "a checklist for national legislation, as well as for the development of global, regional or sub-regional agreements,"¹⁷⁷ to address land-based marine pollution. Under Chapter 17, nations should act also regionally and globally to develop guidance and technologies to deal with land-based marine pollution.¹⁷⁸

Sewage receives particular attention, and Chapter 17 advocates that all nations build and maintain adequate sewage treatment facilities¹⁷⁹ and establish "programmes to control effluent discharge."¹⁸⁰ Other sources of land-based marine pollution should be subject to monitoring, risk and environmental impact assessments, and regional cooperation.¹⁸¹ More specific goals include: (1) eliminating discharges of pollutants that are toxic, persistent, and/or bioaccumulative¹⁸²; (2) "promoting controls over anthropogenic inputs of nitrogen and phosphorus that enter coastal waters where such problems as eutrophication threaten the marine environment or its resources"¹⁸³; (3) controlling runoff and other kinds of nonpoint source pollution¹⁸⁴; and (4) preventing coastal erosion and siltation.¹⁸⁵

Chapter 17 also addresses sea-based activities that cause pollution. By 1992, numerous international conventions and treaties already had addressed pollution from shipping and dumping at sea, and Chapter 17 encourages their full implementation.¹⁸⁶ In addition, Chapter 17 pushes full implementation [32 ELR 10202] of the marine pollution provisions of UNCLOS III.¹⁸⁷ Chapter 17 also advises additional provisions to address pollution from cargo ships¹⁸⁸ and nuclear fuel,¹⁸⁹ air pollution from ships,¹⁹⁰ hazardous substance transportation and disposal,¹⁹¹ pollution from oil and gas platforms,¹⁹² and the pollutants found in anti-fouling paints.¹⁹³

Finally, Chapter 17 encourages nations to protect marine ecosystems by assessing the impact of ships in sensitive areas¹⁹⁴; acting in coastal zones "to protect and preserve rare or fragile ecosystems, such as coral reefs and mangroves"¹⁹⁵; controlling invasions of alien species through ballast water discharges¹⁹⁶; and ensuring that adequate charts of their ocean and coastal territories exist.¹⁹⁷ Chapter 17 thus recognizes that the biological and the physical/chemical components of the marine environments are interrelated.

Overall, the Marine Environmental Protection program emphasizes that "[a] precautionary and anticipatory rather than a reactive approach is necessary to prevent the degradation of the marine environment."¹⁹⁸ In addition, the program promotes the collection and dissemination of information about the marine environment and pollution's effects on it¹⁹⁹ and development of more efficient pollution control technology.²⁰⁰

3. Marine Pollution Control in the United States

By the time of the Rio Conference in 1992, the United States had already accomplished many of the Marine Environmental Protection program's specific goals regarding marine pollution, especially with respect to readily identifiable industrial, municipal, and ship-based sources of marine pollution, including sewage. Shortly before the Rio Conference, moreover, the United States enacted additional programs to address oil pollution and some forms of air-borne water pollution. The United States has yet to fully meet Chapter 17's primary emphasis, however, because land-based nonpoint source pollution continues to degrade ocean water quality in unsustainable ways.

The starting point for ocean water quality regulation in the United States is the federal CWA. The 1972 Act established a comprehensive program "to restore and maintain the chemical, physical, and biological integrity of the Nation's waters."²⁰¹ Several sections of this Act are devoted to federal grants and loans for construction of publicly owned sewage treatment works,²⁰² which then operate pursuant to federally dictated national pollutant discharge elimination system (NPDES) permits.²⁰³ Largely as a result of these provisions, wastewater treatment plants served almost 79% of this country's population in 1991 and almost 81% by 1993.²⁰⁴

More generally, the CWA subjects the nation's ocean and coastal waters to a regulatory regime of permits, effluent limitations, water quality standards, and ocean discharge criteria. Under the NPDES permit program, all discharges of pollutants must have a CWA permit.²⁰⁵ "Discharge of a pollutant" encompasses almost all "point source" discharges—discharges from "any discernible, confined, and discrete conveyance," like a pipe or structure—into the coastal navigable waters, the territorial sea, the contiguous zone, or the ocean.²⁰⁶ The requirements in a particular NPDES permit derive from EPA-set effluent limitations, which establish numeric limitations for various pollutants²⁰⁷; state-set water quality standards, which establish desired uses for state-controlled waters and the water quality criteria necessary to achieve those uses²⁰⁸; and, for discharges into the territorial sea, contiguous zone, and EEZ, EPA-set ocean discharge criteria, which determine the level of degradation allowable in these marine waters.²⁰⁹ Toxic pollutants are subject to especially stringent effluent limitations.²¹⁰

The NPDES permit program does not cover all sources of marine pollution, however. For example, it does not cover discharges of pollutants from "vessels or other floating craft" in the contiguous zone or the ocean.²¹¹ Nevertheless, by 1992 the U.S. Congress had enacted a plethora of statutes to regulate and punish point sources of marine pollution that the CWA's NPDES program did not reach, including legislation to implement most of the international conventions on ocean pollution.²¹² Such regulation also extended [32 ELR 10203] to preventing introduction of alien invasive species from ballast water.²¹³

The NPDES program also does not apply to nonpoint sources of pollution such as land-based runoff. However, in 1987, Congress amended the CWA to address water-based nonpoint source pollution,²¹⁴ requiring states to submit nonpoint source management programs to the EPA Administrator for approval.²¹⁵ The federal government supplies funding and technical assistance to the states to help with their nonpoint source programs,²¹⁶ but the CWA imposes no substantive requirements on states except that states identify "the best management practices and measures" to reduce nonpoint source pollution from state-defined categories.²¹⁷ Nothing in the CWA requires states to actually enforce their nonpoint source programs, and state programs vary considerably in stringency.²¹⁸

In 1990, Congress amended the CZMA to require coastal states to address nonpoint source pollution in their coastal zone management programs.²¹⁹ Coastal states had to adopt measures that conformed to guidance from EPA and NOAA,²²⁰ and states had to be able to enforce the measures that they enacted.²²¹ Thus, the CZMA's nonpoint source management provisions are arguably more effective than the CWA's nonpoint source program. However, the CZMA program is limited to the very narrow, statutorily defined coastal zone and does not reach more landward causes of nonpoint source pollution.²²²

Finally, the CWA does not address air-borne marine pollution. However, by 1992 the federal and state governments regulated emissions of air pollution pursuant to the much-amended Clean Air Act.²²³ Moreover, in 1990 Congress added an acid deposition control program²²⁴ to the Act to reduce the emissions of SO₂ and nitrogen oxides (NO_x) that cause acid rain.²²⁵

U.S. progress in controlling ocean-based pollution and point source discharges on land has generally been good. EPA recently recognized that water clarity is generally "good" throughout the nation's coastal waters,²²⁶ and oil spills have been decreasing in volume for the past 20 years, although the number of spills has remained constant at 5,000 to 7,000 per year.²²⁷ In addition, in 1996, the National Defense Authorization Act²²⁸ amended the CWA to provide EPA and the U.S. Department of Defense joint authority to establish standards for liquid discharges from U.S. Armed Forces vessels,²²⁹ and those agencies finalized the first phase of such standards in 1999.²³⁰

However, persistent and bioaccumulative toxics remain a problem. "Almost 20,000 industrial and municipal discharges occur[] in estuarine waters of the United States" under the NPDES program,²³¹ and "approximately 160,000 factories dump 68,000 tons of toxic metals and 57,000 tons [32 ELR 10204] of toxic organic chemicals into the coastal waters of the United States each year."²³² A sediment toxicity study that began in 1991 indicates that 66% of sediments in estuaries are contaminated with toxic pollutants, a figure that rises to 80% for smaller estuaries,²³³ and in January 2001, EPA rated sediment contamination "poor" for all coastal areas except the Southeast.²³⁴ Fish tissue contamination is slightly better, rated "fair" overall,²³⁵ but contamination from persistent toxic pollutants threatens already endangered whales.²³⁶

As important as toxic pollutants are, however, they are not the largest pollution problem in achieving sustainable development of the oceans. Instead, most ocean pollution comes from "sewer overflow, storm water runoff, polluted water runoff, and sewage treatment malfunctions"²³⁷ —that is, from sewage system inadequacies and, more importantly, land-based nonpoint source pollution. Some progress has been made. For example, to address continuing sewage problems, EPA has issued a Combined Sewer Overflow Control Policy and, most recently, draft guidance to implement the water quality-based provisions in that policy.²³⁸ In addition, EPA has been implementing new stormwater regulations under the CWA throughout the 1990s, essentially bringing urban stormwater runoff within the NPDES permitting program, starting with the largest cities and activities first. By late 1999, these regulations had reached cities of less than 100,000 people and construction sites of five acres or less.²³⁹ EPA and NOAA revised their CZMA guidance to require states to submit a 15-year nonpoint source strategy with 5-year benchmarks and goals.²⁴⁰ In addition, as of August 2001 all coastal states had received conditional approval of their CZMA nonpoint source management programs, and several states are well on their way to full approval.²⁴¹ Finally, in 1995 the United States hosted an international conference that developed a Global Programme of Action (GPA) regarding land-based sources of marine pollution, and it has helped to develop a clearinghouse of information to implement that program.²⁴² The GPA builds on UNCLOS III and Agenda 21 to establish a six-step program for coastal nations to address land-based marine pollution.²⁴³ It also provides recommended approaches for controlling sewage, persistent organic pollutants, radioactive substances, heavy metals, oils and hydrocarbons, nutrients, sediment mobilization, litter, and physical alteration and destruction of coastal habitats.²⁴⁴

Nevertheless, land-based ocean pollution, particularly from nonpoint sources, remains a significant problem. The United States admitted in 1997 that, in effectuating the goals of Chapter 17, its implementation of land and water use and siting policies to protect the oceans—policies that could potentially address land-based ocean pollution—had been poor.²⁴⁵ In February 1998, EPA and the U.S. Department of Agriculture released their Clean Water Action Plan,²⁴⁶ concluding that "polluted runoff is the most important source of water pollution"²⁴⁷ and that "the success in cleaning up pollution from point sources (e.g., factories and sewage treatment plants) has not yet been matched by controls over polluted runoff from sources such as farms, urban areas, forestry, ranching, and mining operations."²⁴⁸ "The numbers and diversity of reported HAB incidents have increased during the past 25 years to include almost every U.S. coastal state,"²⁴⁹ in part because of nutrient runoff, costing the nation approximately $ 100 million per year²⁵⁰ and affecting organisms as large as marine mammals.²⁵¹ Oceans off the United States harbor increasing numbers of eutrophic and/or hypoxic (oxygen-lacking) areas.²⁵² "Atmospheric [32 ELR 10205] deposition is [still] a large contributor to the nitrogen load of many coastal waters," contributing to eutrophication problems, and air emissions of NO_x "increased between 1970 and 1997, followed by a slight decline in 1998."²⁵³

In addition to not adequately addressing marine pollution from nonpoint sources, the United States lacks a baseline standard of what overall ocean water quality should be. For internal fresh waters, the CWA creates this baseline through state-issued water quality standards.²⁵⁴ However, states have no authority to set water quality standards for ocean waters more than three miles out to sea. EPA prepared new ocean discharge criteria that would have established "baseline water quality standards for ocean waters beyond three miles offshore. These waters, designated 'Healthy Ocean Waters,' would be protected by both a narrative statement of desired quality and pollutant-specific numeric criteria," which would apply to all NPDES permits for discharges into the territorial sea, contiguous zone, or EEZ.²⁵⁵ These new rules would have been the first national statement on ocean water quality since 1980, when the EPA published its last ocean discharge criteria,²⁵⁶ and the first indication, in practical terms, of what the United States' goals should be regarding ocean water quality. However, publication of the proposed rules was stalled when President George W. Bush took office in January 2001,²⁵⁷ and, as of August 2001, EPA had not re-proposed them.²⁵⁸

4. Specific Recommendations for the Next 10 Years

Especially in comparison to other countries, the United States generally has done a good job of regulating and preventing marine pollution. However, its most effective efforts have focused on readily identifiable and controllable point sources of pollution, such as ships and factories. To make further progress in this aspect of sustainable development, the United States must address the remaining issues in sewage treatment and the problem of land-based nonpoint source pollution.

Regarding sewage treatment, EPA has solicited responses to its combined sewage overflow guidance and is considering turning that guidance into regulation.²⁵⁹ Like EPA's stormwater regulations, such rules would force municipalities to ensure that rain and snowmelt do not overwhelm treatment facilities, preventing such runoff from polluting the oceans. EPA should implement such rules in the next decade.

In addition, EPA has taken steps to address atmospheric deposition of marine pollutants. It has instituted new measures to reduce emissions of NO_x and to reduce acid rain²⁶⁰ and predicts that such measures will reduce NO_x emissions by over six million metric tons by 2010.²⁶¹ However, EPA needs to monitor these new programs over the course of the next decade to ensure that the expected reductions actually occur and to search for ways to bring about even greater reductions.

The biggest challenge regarding marine pollution for the next decade will be control of other kinds of land-based nonpoint source pollution, especially land-based runoff. Historically, the federal government has been reluctant to impose specific requirements on land-based source of polluted runoff because of the close connection such requirements would have to land use planning,²⁶² which traditionally is the province of state and local government, not the federal government.²⁶³ Land use becomes an issue in nonpoint source pollution regulation because controlling nonpoint runoff generally involves imposition of best management practices (BMPs), which are specific instructions for how to use land. For example, BMPs to control agricultural runoff of pesticides and fertilizers might include organic or pesticide-reducing integrated pest management plus maintenance of wetlands and "buffer strips" along waterways to trap and filter escaping chemicals.

Nevertheless, as with coastal population management, nonpoint source pollution of the oceans has become a national issue, and there are several steps that the federal government should take in the next decade to address it. First, Congress should amend the CWA's nonpoint program to parallel the CZMA's, requiring states to have enforceable measures to control nonpoint source pollution based on recommended measures that EPA would identify.²⁶⁴ Such an amendment would encourage states to enact roughly equivalent nonpoint source controls. Second, to address variations in states' willingness to enforce their nonpoint source control programs, Congress should amend both the CWA and the CZMA to give private citizens a right to sue [32 ELR 10206] nonpoint source polluters when nonpoint source pollution impairs ocean water quality.²⁶⁵

Finally, to give this right to sue practical value, Congress should amend the CWA to impose baseline water quality requirements for all zones of the ocean. Under the current Act, states can already establish water quality standards for the three-mile zone closest to shore, but EPA needs explicit authority to do the same for the rest of the EEZ. Congress has not amended the CWA to reflect expansion of U.S. regulatory control through a 200-mile EEZ. As a result, EPA currently lacks explicit authority to set water quality standards—as opposed to ocean discharge criteria—for the ocean. This deficiency is important, because "water quality standard" is a term of art in the CWA, and only water quality standards clearly trigger the provisions of the CWA that ensure that the designated level of water quality is maintained or restored, regardless of whether pollution comes from point sources, nonpoint sources, or both.²⁶⁶ In addition, provisions of the CWA that address interstate pollution do not comfortably address the problem of upstream runoff polluting federally controlled ocean waters.²⁶⁷ As a result, under current law, even if EPA had promulgated its new ocean discharge criteria—an improvement to be encouraged and pursued during the new Administration—it still would have lacked clear legal authority to regulate land-based activities that threaten "Healthy Ocean Waters."²⁶⁸

Without an enforceable baseline standard against which the condition of ocean water quality can be measured and toward which ocean water quality can be pushed, HABs, dead zones, eutrophication, sediment contamination, sediment runoff, and all other problems associated with nonpoint source runoff will only increase, impeding the productivity of—and hence the sustainable development of—the oceans. The precautionary principle demands that this continual disruption and poisoning of the nation's ocean cease. The precautionary principle also needs to inform how and whether land-based activities will be conducted and to change the paradigm of inexhaustibility that pervades human thinking even here. The United States could make astounding progress toward controlling land-based pollution of the oceans if every developer, farmer, silvaculturist, forestry operation, sewage treatment plant, and urban planner had to prove an affirmative answer to one question: Are you certain that your actions will not harm or impair the ocean, or any of the organisms that inhabit the ocean, most directly downstream of your watershed? Such a truly precautionary regulatory regime is unlikely to garner political support in the next 10 years, but it is worth identifying as a potential future goal now.

C. Sustainable Use and Conservation of Marine Living Resources of the High Seas

1. The Importance of Marine Living Resource of the High Seas

Under UNCLOS III, the dominant theme for the high seas—the oceans beyond the various coastal nation's EEZs—is still freedom of the seas. As a result:

Conservation efforts for the high seas are caught in the tragedy of open access. The seas are used by everyone but owned by no-one. Usually no single agency or organization in society is responsible for the careful management and conservation of the seas. This makes marine conservation doubly difficult.²⁶⁹

Nevertheless, a number of commercially important fish species, such as tuna, mackerel, and marlin,²⁷⁰ as well as the great whales, spend much of their lives in waters outside any nation's regulatory jurisdiction. Moreover, in the decade before the Rio Conference, "fisheries on the high seas . . . considerably expanded and [in 1992] represented approximately 5[%] of total world landings."²⁷¹ Thus, the world cannot afford to ignore the high seas in sustainably developing the oceans.

2. Sustainable Development of High Seas/International Marine Living Resources and Agenda 21

As with any marine living resource, from a human perspective sustainable development of high seas marine living resources requires that the world's nations ensure that sufficient numbers of these organisms escape each year to reproduce in sufficient numbers to ensure an equally large (or larger) population of that species in the next and infinitely successive years. From a broader perspective, however, sustainable development requires that, at the same time, humans ensure that their harvest does not interfere with the food chains and ecosystems of which the target species is a part or destroy physical and biological resources unrelated to the target species, as through bycatch of undesired organisms, entanglement in fishing gear, or destruction of the ocean floor and habitat.

Although several different kinds of living organisms inhabit the high seas, Chapter 17 focuses on fish, recognizing that fishing regulation on the high seas "is inadequate in many resources and some resources are overutilized."²⁷² As a result, coastal nation cooperation "is essential particularly for highly migratory species and straddling stocks"²⁷³ and should use "multi-species management and other approaches that take into account relationships among species, especially in addressing depleted species, [32 ELR 10207] but also in identifying the potential of underutilized or unutilized populations."²⁷⁴

Although signatory nations "commit themselves to the conservation and sustainable use of marine living resources on the high seas,"²⁷⁵ Chapter 17 emphasizes reducing waste²⁷⁶ and enforcing existing regulations and conventions²⁷⁷ rather than reducing harvest. Indeed, nations are to act to "develop and increase the potential of marine living resources to meet human nutritional needs"²⁷⁸ and to "maintain and restore populations of marine species at levels that can produce the maximum sustainable yield as qualified by relevant environmental and economic standards, taking into consideration relationships among species."²⁷⁹ Endangered marine species²⁸⁰ and marine mammals,²⁸¹ however, do receive special consideration, and signatory nations agree to "preserve habitats and other ecologically sensitive areas."²⁸² In addition, Chapter 17's high seas living resources program relies heavily on the provisions in UNCLOS III governing straddling stocks and highly migratory species²⁸³ and other existing international agreements²⁸⁴ to effectuate its goals.

3. Marine Living Resources of the High Seas and the United States

Measuring any single country's progress toward sustainable development of high seas marine living resources is, by definition, difficult, because the high seas are international commons. Nevertheless, prior to 1992 the United States was a world leader in international conservation of marine species, and it has maintained that role throughout the last decade. Its efforts over the last few years have included initiating new programs to protect species, such as sharks, that have only relatively recently become commercial fishing targets; it also participates in several long-term international recovery programs. Still, international efforts to achieve sustainable development of high seas living marine species are hampered by lack of scientific data, and the United States could do much to lead the international effort by encouraging basic and unbiased research.

By the time of the Rio Conference in 1992, the United States had entered 13 multinational treaties and 9 bilateral agreements regarding straddling stocks, highly migratory species, and other marine resources that exist in the high seas and/or in more than one nation's EEZ. In addition, the United States was participating in four international marine science programs.²⁸⁵ Most of these agreements relate to fishing,²⁸⁶ although by 1992 the United States had also signed onto conventions that protect endangered species, whales, and the various marine living resources of the Antarctic.²⁸⁷

Internationally, the protection of whales had been one of the more comprehensive conservation efforts for high seas marine living resources long before 1992. Under Chapter 17, nations continue to recognize the responsibility and authority of the International Whaling Commission "for the conservation and management of whale stocks and the regulation of whaling pursuant to the 1946 International Convention for the Regulation of Whaling,"²⁸⁸ a treaty that created the commission and gave it authority to regulate whaling internationally. In addition to regulating whaling, "the International Whaling Commission has declared the Indian [32 ELR 10208] Ocean and Southern Ocean as no-take sanctuaries for whales, covering about 100 million km², 30% of the world's ocean and mostly in international waters,"²⁸⁹ anticipating Chapter 17's precept that important marine areas should be protected. By 1992, the United States had signed the International Convention for the Regulation of Whaling²⁹⁰ and established an international reputation for protecting whales, reinforced domestically through the 1972 Marine Mammal Protection Act's explicit prohibition on commercial whaling.²⁹¹

Similarly, by 1992 the United States was also fully implementing international protections for endangered species, including marine endangered species. The 1973 Endangered Species Act,²⁹² among other things, implements the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES)²⁹³ and helps to implement the International Convention for the Northwest Atlantic Fisheries and the International Convention for the High Seas Fisheries of the North Pacific Ocean.²⁹⁴ CITES establishes international lists of endangered species and severely limits trade in those species, while the other two treaties seek to protect and manage fisheries resources in the North Atlantic and North Pacific Oceans, respectively.

The United States continues to demonstrate international support and leadership in managing whales and endangered species in international waters. For example, the United States continues to be a strong proponent of international whale conservation²⁹⁵ and has used trade restrictions to try to impose marine mammal and endangered species restrictions on other nations.²⁹⁶ Nevertheless, since 1992 it has directed most of its efforts in sustainable use of high seas marine living resources toward high seas and transboundary fisheries. Most importantly, although the United States has not signed or ratified UNCLOS III, it has signed and ratified the 1995 United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks.²⁹⁷ The agreement entered into force on December 11, 2001, 30 days after the 30th nation (Malta) ratified it.²⁹⁸ Under this agreement, the United States has committed itself "to responsible fisheries"²⁹⁹ and to "ensuring the long-term conservation and sustainable use of straddling fish stocks and highly migratory fish stocks"³⁰⁰; to "adopting measures to ensure long-term sustainability" of these stocks despite fishing on the high seas³⁰¹; and to "applying the precautionary approach widely to conservation, management, and exploitation of straddling fish stocks and highly migratory fish stocks in order to protect the living marine resources and preserve the marine environment."³⁰² Moreover, the United States must ensure that ships flying the U.S. flag gather and provide the information necessary to implement the agreement³⁰³ and comply with all conservation and management measures that the United States has implemented or agreed to.³⁰⁴

The United States has also adopted the 1995 United Nations Code of Conduct for Responsible Fisheries.³⁰⁵ However, the United States views its own domestic legislation as sufficient to meet this code's requirements and has made few extra efforts on the international stage.³⁰⁶

[32 ELR 10209]

These two new programs, in conjunction with prior international agreements, effectively commit the United States to sustainable management of fisheries that require international cooperation. In addition, the United States has signed onto the Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea (1994),³⁰⁷ which entered into force in 1995, and has entered into cooperative fisheries programs with Ireland (1995), Chile (1995), the European Union (1997), and Vietnam (1998).³⁰⁸ It also created, with Japan, the North Pacific Interim Scientific Committee for Tuna and Tuna-Like Species in January 1995.³⁰⁹

Most of the information available regarding the actual status of international marine species relates to highly migratory fisheries species. This information paints contrasting pictures for the Pacific and Atlantic Oceans. According to NOAA's most recent Report on the Status of U.S. Living Marine Resources, overall harvest of Pacific Ocean highly migratory pelagic species such as tunas and marlins decreased 41% overall between 1992 and 1999.³¹⁰ Of the species for which NOAA has adequate information to make assessments, five species are considered underutilized, meaning additional human fishing is possible; two species are fully utilized; and only the blue marlin is overutilized.³¹¹ Moreover, the North Pacific albacore, which was probably overutilized in the 1970s and 1980s, "appears to have recovered, aided by reduced catches and a productivity increase."³¹² However, the status of seven Pacific species is unknown,³¹³ indicating that more information is necessary to adequately address, internationally, the management of these species.

In the Atlantic Ocean, by contrast, six highly migratory pelagic species are overfished³¹⁴ and two species are fully utilized.³¹⁵ The status of all other species is unknown.³¹⁶ Thus, while the total number of overutilized fish species fell overall between 1992 and 1999,³¹⁷ highly migratory Atlantic species are overwhelmingly overutilized. Moreover, harvest of these species increased significantly between 1992 and 1999,³¹⁸ and "marlin and sailfish bycatch in tuna and swordfish fisheries are a major concern . . . ."³¹⁹

The status of Atlantic species had improved only slightly by March 2001, when the National Marine Fisheries Service (NMFS) issued its latest Stock Assessment and Fishery Evaluation for Atlantic Highly Migratory Species.³²⁰ According to this report, four highly migratory species are still overfished, while Atlantic yellowfin tuna and South Atlantic albacore tuna are fully fished.³²¹ Moreover, "bycatch of finfish and sea turtles and incidental catches of marine mammals and seabirds continue to be areas of concern in [highly migratory species] management,"³²² and overcapitalization of the industry continues to drive overfishing.³²³

Nevertheless, by 2001 the United States had established several measures to improve the status of internationally fished species. For example, it reduced quotas for the North Atlantic swordfish for the next three years, plus reduced the discard allowance.³²⁴ The United States has also negotiated an agreement with Japan that allows the two countries to mutually meet the quota goals in a 10-year international stock rebuilding plan for swordfish.³²⁵ The United States has created a new plan of action for pelagic sharks³²⁶ and implemented new requirements to reduce bycatch in the pelagic longline fishery.³²⁷ At the most recent International Commission for the Conservation of Atlantic Tunas (ICCAT), moreover, the "United States successfully negotiated a two-phase rebuilding plan for Atlantic blue and white marlin."³²⁸ In the first phase of this plan, countries will reduce white marlin landings 67% and blue marlin landings 50% from 1999 levels.³²⁹ The United States is also participating in a 20-year ICCAT rebuilding program for bluefin tuna.³³⁰ The United States thus is working for sustainable fishing in international fisheries, although Atlantic highly migratory species may take many decades to recover to sustainable levels.

4. Specific Recommendations for the Next 10 Years

Sustainable development of fisheries depends on fisheries management programs that regulate human fishing to maintain species stocks at levels that allow for continued human fishing over generations while simultaneously maintaining the ecosystems and food webs of which target species are a part. Effective fisheries management programs, therefore, require detailed information about the status of each fish stock, its breeding habitats, and its interactions with the rest of the marine environment. Such information is particularly [32 ELR 10210] difficult to acquire for highly migratory species like tuna, which often seem to "just disappear" into the open ocean. Without such information, however, any attempt at worldwide sustainable management is little more than guesswork, in violation of the precautionary principle.

Considering that even the basic status of one-half of the fished highly migratory species is unknown, the U.S. priority in the next 10 years should be to fund or help fund comprehensive international scientific research to obtain basic information about international marine living resources—information to be shared with the rest of the world. In the interim, the United States should continue to reduce—and to encourage other nations to reduce—catch limits for all species known to be or suspected of being in danger of being overfished. Moreover, it should continue to prohibit—and to encourage other nations to prohibit—fishing methods such as long-lining that needlessly kill nontarget species and/or destroy the marine environment.

D. Sustainable Use and Conservation of Marine Living Resources Under National Jurisdiction

1. Living Marine Resources Under National Jurisdiction

Unlike Chapter 17's third program, which addresses sustainable development of marine living resources that live largely outside any one nation's ocean jurisdiction, like tuna and whales, Chapter 17's fourth program addresses marine living resources like shellfish and nearshore fish existing mostly within nations' EEZs and thus, under UNCLOS III, subject to direct national regulation. Sustainable development of these national marine living resources requires the same balance between human harvest and the species' need to breed and to interact with their environment that international species require. However, because theseliving resources are subject to national regulation, control of their use does not require nearly as much international cooperation as for species covered under the third program.

Human fishing and hunting for particular marine species such as seals and cod provided the first evidence that humans could unsustainably use the ocean's resources. "Overfishing of large vertebrates and shellfish was the first major human disturbance to all coastal ecosystems examined," worldwide.³³¹ Nevertheless, fishing in waters under national jurisdiction remains an important ocean activity. Worldwide, in 1992, "marine fisheries yielded 80 to 90 million tons of fish and shellfish per year, 95[%] of which is taken from waters under national jurisdiction."³³² Moreover, "yields have increased nearly fourfold over the past four decades."³³³ "Marine living resources provide an important source of protein in many countries and their use is often of major importance to local communities and indigenous people."³³⁴

The United States is no exception. Indeed, "since 1990, the United States has consistently ranked fifth in world fisheries catch by weight," and in 1995 its catch amounted to 5% of the world's total production of marine and freshwater products.³³⁵

2. Agenda 21's Provisions

Chapter 17 recognizes that the marine living resources within a nation's jurisdiction, if sustainably used, offer increased potential to meet nutritional and social needs, particularly in developing countries."³³⁶ As in Chapter 17's third program, the national living marine resources program's focus is to promote maximum sustainable use³³⁷ while reducing waste.³³⁸ Realizing the potential of living marine resources

requires improved knowledge and identification of marine living resource stocks, particularly of underutilized and unutilized stocks and species, use of new technologies, better handling and processing facilities to avoid wastage, and improved quality and training of skilled personnel to manage and conserve effectively the marine living resources of the exclusive economic zone and other areas under national jurisdiction.³³⁹

Also like the third program, the fourth program focuses primarily on fish. Chapter 17 recognizes that fisheries face "mounting problems, including local overfishing, unauthorized incursions by foreign fleets, ecosystem degradation, overcapitalization and excessive fleet sizes, underevaluation of catch, insufficiently selective gear, unreliable databases, and increasing competition between artisanal and large-scale fishing and between fishing and other types of activities."³⁴⁰ These problems extend to specialized ecosystems that support fisheries, such as coral [32 ELR 10211] reefs and mangrove swamps, which "are among the most highly diverse, integrated and productive of the Earth's ecosystems."³⁴¹ In addition, Chapter 17 again encourages special protections for endangered marine species³⁴² and marine mammals.³⁴³

Although this fourth program, like the third, relies uponUNCLOS III,³⁴⁴ it also recognizes that these marine living resources are, by definition, subject to national regulation. Thus, signatory countries should "implement strategies for the sustainable use of marine living resources"³⁴⁵ and "strengthen their legal and regulatory frameworks . . . ."³⁴⁶ In addition, "states should identify marine ecosystems exhibiting high levels of biodiversity and productivity and other critical habitat areas and should provide necessary limitations on use in these areas, through, inter alia, designation of protected areas."³⁴⁷ Priority for protecting marine areas should go to coral reefs, estuaries, temperate and tropical wetlands, including mangroves, sea grass beds, and other spawning and nursery areas.³⁴⁸

3. Fish and Shellfish Under U.S. Jurisdiction

As has been noted, commercial fishing stocks gave humans the first warnings that ocean resources could be overexploited, and measures to sustainably develop fisheries have been some of the most visible (and controversial) implementations of Chapter 17's more general goals. Although the United States was already managing fisheries long before the Rio Conference, "overutilization is causing many species that sustain these U.S. fisheries to fall below the levels required to produce long-term potential yield,"³⁴⁹ threatening to render American fisheries unsustainable by impairing species' abilities to maintain their numbers from year to year. Fishing regulation in the United States has long worked from the "paradigm of inexhaustibility," resulting in overcapitalization of the industry and pressures on regulators to meet short-term economic needs rather than long-term goals of sustainability. Congress changed this regulatory scheme in 1996, but it is still too early to tell whether U.S. fisheries regulation now truly meets the goals of the Rio Conference.

Since 1976, the major federal regulatory framework for addressing fisheries issues has been the Magnuson-Stevens Fishery Conservation and Management Act.³⁵⁰ In this Act, Congress recognized that overfishing was a problem and determined that "[a] national program for the conservation and management of the fishery resources of the United States is necessary to prevent overfishing, to rebuild overfished stocks, to insure conservation, and to realize the full potential of the Nation's fishery resources,"³⁵¹ including development of underutilized species.³⁵² Under the Magnuson-Stevens Act, the United States claims sovereign rights to manage fisheries in its EEZ and continental shelf.³⁵³ However, the Act excludes from federal regulation the three-mile-wide band of waters that the coastal states control, thus leaving nearshore fisheries management largely to the individual states.³⁵⁴ Of the approximately 275 "nationally significant fish and shellfish species and stock groups," coastal states and interstate commissions manage 74, while the federal government manages 201.³⁵⁵

Under the Act as it existed in 1992, "optimum yield" was a key management term. The Act divides the nation's marine waters among eight regional Fishery Management Councils,³⁵⁶ which enact Fishery Management Plans (FMPs) for each fishery within their jurisdiction.³⁵⁷ In 1992, each FMP had to meet seven national standards.³⁵⁸ Most importantly, "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."³⁵⁹ "Optimum" yield was

the amount of fish—(A) which will provide the greatest overall benefit to the Nation, particularly with reference to food production and recreational opportunities; and (B) which [was] prescribed on the basis of the maximum sustainable yield from such fishery, as modified by any relevant economic, social, or ecological factor.³⁶⁰

The Act did not define "overfished" or relate that concept to maximum sustainable yield. Nor did the Act recognize the interrelationship of habitat and fishery success. As a result, coupled with the "paradigm of inexhaustibility," the Magnuson-Stevens Act in 1992 was more a recipe for continued exploitative fishing than for sustainable development.

Congress addressed many of these problems in the 1996 Sustainable Fisheries Act.³⁶¹ The 1996 Act amended the Magnuson-Stevens Act to redefine "optimum yield" so that, "in the case of an overfished fishery, [optimum yield] provides for rebuilding to a level consistent with producing the maximum sustainable yield in such fishery."³⁶² The 1996 [32 ELR 10212] Amendments also defined "overfishing" and "overfished" to "mean a rate or level of fishing mortality that jeopardizes the capacity of a fishery to produce the maximum sustainable yield on a continuing basis,"³⁶³ and added bycatch reduction and essential fish habitat requirements that force Fishery Management Councils to address the ecological effects of fishing.³⁶⁴ As a result,the Sustainable Fisheries Act incorporated sustainable thinking and a precautionary approach into U.S. domestic fisheries management.³⁶⁵

Incorporating the precautionary approach into the Magnuson-Stevens Act brought about two fundamental legal changes in American fisheries management. First, maximum sustainable yield became a "limit[] to be avoided, rather than [a] target[] to be achieved (or exceeded)."³⁶⁶

Second, the Precautionary Approach is an explicit and detailed attempt to articulate the need for, and means of, bringing to fruition the paradigm shift that is currently in progress. It is apparent that fisheries are in transition from a paradigm of "it is not possible to overexploit marine resources" to one of "it is not acceptable to overexploit marine resources,"³⁶⁷ a fundamental shift, at least rhetorically, away from the paradigm in inexhaustibility.

The shift in actual thinking and practice, however, has not been quick or easy, and the picture of current fisheries management "is one of fisheries engaged in a difficult transition from a past of development and expansion, with single-species management the practice, to a future that entails stabilization, contraction, and ecosystem-based management practices."³⁶⁸ While "the goal of sustainable fish resources focuses on the fish stock itself,"

the goal of sustainable fisheries management tends to incorporate a broader concern for the health not only of the fish stock but also of the surrounding marine biodiversity and ecosystems. Unfortunately, sustainable fisheries management places more emphasis on gathering data on a species-by-species basis than on an ecosystem basis.³⁶⁹

The Magnuson-Stevens Act encourages this species-by-species approach in the way that it structures its FMP requirements. For example, the councils write FMPs to address conservation and management of "each fishery" and each "individual stock of fish."³⁷⁰ Nevertheless, some experimentation with ecosystem approaches has begun. In December 2000, the Western Pacific Fishery Management Council published a Draft Fishery Management Plan for the Coral Reef Ecosystems of the Western Pacific Region.³⁷¹ The plan is the first ecosystem-based FMP in the United States and "implements the precautionary approach in that it addresses potential problems before they can occur and establishes a management regime that can quickly adapt to changes."³⁷² Moreover, the "holistic plan provides for better understanding of impacts due to natural environmental changes, other FMP managed fisheries, and non-fishing anthropogenic impacts such as dredging."³⁷³

More problematic are social issues in achieving sustainable fisheries. "Meeting the goals of sustainable development in the fisheries sector requires that fisheries management decisions take into consideration the economic, social, and cultural needs of fisheries-dependent communities . . . ."³⁷⁴ Politicians who advocate for severe reductions in the numbers of fishers through license requirements or for stringent limitations on catch allowances often face a powerful public outcry, and the very real individual and social harms that arise when government limits access to specific fisheries cannot be ignored. Nevertheless, over-concern for short-term economic and social displacement can lead to both a collapsed fishery and large numbers of poverty-stricken fishers. For example, Canada's mismanagement of its eastern cod fishery allowed those stocks to completely collapse as additional fishers joined the troubled fishery to compete for the few fish that remained—2.5 fishers existed in the 1990s for every one that existed in 1961—while attempts to transition fishers out of the business cost the Canadian government over $ 4.2 billion in the last decade and left 25,000 people on long-term government assistance.³⁷⁵ Many U.S. fisheries are similarly "overcapitalized and performing poorly in economic terms," and "short-term economic concerns have tended to receive undue weight relative to the steps needed to cut back harvests—sometimes for many years—and achieve long-term biological and economic goals."³⁷⁶

As with international marine fisheries, fish stocks under U.S. federal management are suffering, and lack of information hampers improvements. "Nationwide, of those stocks for which status is known, 30% are overfished, 3% are approaching an overfished condition, and 67% are not overfished."³⁷⁷ However, the status of 65% of U.S. fish stocks is unknown, even though these stocks are included in fishery management plans.³⁷⁸ Moreover, "the precise [32 ELR 10213] amount of fishing that occurs in U.S. waters is unknown," although, as of 1998, there were approximately 150,000 active commercial fishing vessels or permits in federally controlled water.³⁷⁹

Nevertheless, there is reason to believe, cautiously, that federal fisheries and fishery management have been improving since the Rio Conference in 1992. In 1999, the NMFS concluded that 54 species fished in federal waters were overutilized, compared to 59 in 1992.³⁸⁰ These totals, however, hide more dynamic changes: of the 59 species that were over utilized in 1992, only 42 are still overutilized.³⁸¹ In contrast, six species that were fully utilized and three species that were underutilized in 1992 are now overutilized.³⁸² In addition, information about species is improving: of 47 species whose status was unknown in 1992, only 33 remained unknown in 1999.³⁸³ However, actual stock status is less auspicious: a comparison of stock size to the size necessary to support long-term potential yield (LTPY)—that is, the size necessary to support the maximum sustainable catch of a given species³⁸⁴—showed that only 7 troubled stocks increased their numbers enough since 1992 to approach or surpass this threshold, while 18 stocks that had sufficient numbers in 1992 to support their LTPY have now dropped below that threshold.³⁸⁵ However, as with utilization status, information regarding stock size has improved since 1992: 10 stocks were reclassified as "known," compared to only 3 reclassified as "unknown."³⁸⁶

Further improvement can be expected in the next decade as regulatory changes made in response to the 1996 Sustainable Fisheries Act begin to effect biological changes. In 1999, NOAA emphasized "that a transition to eliminate overfishing and rebuild overfished stocks has begun, but [the stock summaries] do[] not reflect the very real and substantive management measures that have been enacted in recent years nor the improved scientific understanding of resource dynamics and potential."³⁸⁷ By 1999, the eight fishery management councils were amending all FMPs to comply with the Sustainable Fisheries Act's overfishing provisions, and the NMFS had interpreted that Act "as being consistent with the precautionary approach, a framework for ensuring that conservation objectives take precedence over short-term economic considerations . . . ."³⁸⁸ NOAA expected the NMFS and the regional councils to strengthen management measures "to eliminate overfishing" and recognized that the Sustainable Fisheries Act requires the councils to create plans "to rebuild the stocks as quickly as possible."³⁸⁹ Finally, "almost all major U.S. fisheries now have some form of limited access in recognition of pervasive problems of overcapacity and overcapitalization and their effects on overfishing," and tradable individual fishing quotas (IFQs) recently received cautious scientific approval as fisheries management tools.³⁹⁰ Together, limited entry and IFQs can encourage fishers in overcapitalized fisheries to leave voluntarily while preventing new fishers from exacerbating problems of overfishing.

However, NOAA also reminded the American public that "it is important to realize that the benefits of rebuilding depleted species cannot be realized immediately after the rebuilding plans become operational."³⁹¹ It may well take a decade before we can measure the true biological effects of the legal changes in fisheries management. Moreover, bycatch—the unintentional catching of nontarget species—remains an issue. In 159 U.S. fisheries, "bycatch discarding affects at least 149 species or species groups"³⁹²; in addition, fisheries impact 147 marine mammal species.³⁹³ However, as of 1998, "comprehensive data on the magnitude and biological significance of U.S. bycatch are not currently available," although information is improving.³⁹⁴ Similarly, "entanglement in, and/or ingestion of, human-caused debris (including fishing gear and many other items) has been reported for over 250 marine species," but complete information regarding the impact of this so-called ghost fishing, a form of bycatch, is not available.³⁹⁵

With regard to shellfish, commercial shellfish growing areas in U.S. waters have doubled since 1966, "from 10 million to over 21 million acres," but harvest is prohibited in 20% of these areas, most often as a result of fecal coliform contamination from urban runoff.³⁹⁶ Nevertheless, marine pollution interferes with shellfish harvest less often now than in the past. "The overall percentage of harvest limited waters decreased from a high of 42% in 1985 to 31% in 1995. The percent of prohibited waters also decreased, from a high of 26% in 1974 to 13% in 1995, the lowest percentage recorded."³⁹⁷

State-controlled fisheries management follows a pattern similar to federal. Under the CZMA, states can address overfishing in the three-mile-band area to which they hold title as part of a comprehensive coastal zone management program. To date, however, such incorporation of fishing has received little emphasis from either NOAA or the implementing states.³⁹⁸ As a result, states, like the federal government, tend to address fish and shellfish management on a species-by-species basis, regulating fishing through species-specific commercial and recreational licensing requirements. Of the 74 fish and shellfish stocks managed by [32 ELR 10214] states, 3 are underutilized, 24 are fully utilized, 7 are overutilized, and 40 are of "unknown" status.³⁹⁹

4. Other Marine Living Resources Under U.S. Jurisdiction

Two decades before the Rio Conference, the United States had already given special protections to marine mammals and endangered species. Since 1992, however, the number of marine species requiring these protections has only increased, although knowledge about them has improved.

In the Marine Mammal Protection Act of 1972 (MMPA),⁴⁰⁰ Congress imposed a general moratorium on the taking or importation of marine mammals, with exceptions for scientific research and public display, incidental takings in the course of other activities, gear protection in commercial fishing, importation of certain marine mammal products, actions by certain Alaska Natives, and self-defense.⁴⁰¹ The prohibition on takings extends to both individuals and vessels under U.S. jurisdiction.⁴⁰² The Secretary of Commerce, acting through NOAA and the NMFS, designates as "depleted" marine mammals whose stocks are below their optimum sustainable population or that are listed as endangered or threatened species under the Endangered Species Act (ESA),⁴⁰³ and the Act restricts the availability of incidental take permits for depleted marine mammals.⁴⁰⁴

A year after enacting the MMPA, Congress enacted the ESA of 1973,⁴⁰⁵ which prohibits the importation or taking of endangered species listed for protection under the Act.⁴⁰⁶ The taking prohibition explicitly applies in the territorial sea and the high seas.⁴⁰⁷ In addition, federal agencies must ensure that their actions do not jeopardize species listed for protection.⁴⁰⁸

Congress has amended the MMPA since 1992, but not the ESA. The MMPA Amendments of 1994⁴⁰⁹ require the Secretaries of Commerce and the Interior to develop stock assessment reports for all marine mammal stocks found in U.S. waters,⁴¹⁰ a requirement that has improved our knowledge of marine mammals. In addition, the 1994 Amendments imposed a "zero mortality" goal on commercial fisheries, commanding that "commercial fisheries shall reduce incidental mortality and serious injury of marine mammals to insignificant levels" by April 30, 2001.⁴¹¹

In 1998, NOAA declared that "the outlook for the general welfare of the Nation's living marine resources is 'guarded,' with vigilance needed."⁴¹² Information about critical marine species is improving, however. For example, in 1992, the NMFS assessed only 82 stocks of marine mammals and sea turtles, and the status of 74% of those was unknown.⁴¹³ In 1999, in contrast, the NMFS produced reports for 145 marine mammal species.

As knowledge about marine mammals and other marine species has increased, so has the number of species acknowledged to be in peril. The number of endangered and threatened marine species listed under the ESA has almost doubled since 1992.⁴¹⁴ In addition, 47 marine mammal species are considered "strategic" stocks, including 25 listed under the ESA and 2 considered depleted under the MMPA.⁴¹⁵ Depleted and endangered marine mammals are automatically considered strategic stocks, but the term also includes any marine mammal stock for which the number of animals killed each year, usually through fishing bycatch, exceeds the number that can be killed without jeopardizing the stock's optimum sustainable population.⁴¹⁶ Critical information is still missing for an additional 46 stocks.⁴¹⁷

Not all assessments have been bad, however. Lack of long-term population data allowed the NMFS in 1999 to assess population trends for only 18 marine mammal species.⁴¹⁸ Of these 18 species, however, 10 have improved since 1992, most dramatically the eastern stock of North Pacific gray whale, which was taken off the endangered species list.⁴¹⁹ In addition, several dolphin stocks are thought to have stabilized, although Hawaiian monk seals are still critically endangered and the western Pacific stock of stellar sea lions and Alaskan harbor seals are declining.⁴²⁰

Sea turtle statistics over the last decade also inspire some optimism. Although all six species found in U.S. waters remain listed as endangered or threatened under the ESA,⁴²¹ as they have been since the 1970s,⁴²² green turtles, Florida loggerhead, and Pacific olive ridley turtles have been increasing since 1992, and conservation efforts reversed the decline of the Atlantic Kemp's ridley turtle in the early 1990s, the population of which has been increasing modestly ever since.⁴²³ Atlantic leatherbacks, Pacific loggerheads, and Pacific hawksbills changed from unknown status in 1992 to stable status in 1999, while Pacific leatherbacks changed from unknown status to declining status.⁴²⁴ In addition, [32 ELR 10215] knowledge has improved in other ways, including estimates of nesting populations and genetic stock identification.⁴²⁵

5. Protecting Marine Living Resources Through Ecosystems

As noted, Chapter 17's fourth program encourages nations to protect marine living resources through ecosystem management. Marine ecosystem management existed in the United States prior to 1992. Until very recently, however, the focus of such management was to preserve particularly important or beautiful areas of the marine environment. In the last few years, however, marine ecosystem management has begun to emerge as a more general means of sustainably managing marine living resources.

In general, the United States has pursued ecosystem management through marine protected areas (MPAs), beginning well before 1992. MPAs "protect habitat and biodiversity" and "help maintain viable fisheries."⁴²⁶ Specifically:

MPAs safeguard the vital life-support processes of the sea, including photosynthesis, maintenance of food chains, movement of nutrients, degradation of pollutants and conservation of biological diversity and productivity. They protect both biodiversity and water quality. The protection of marine habitats in their natural state provides an essential foundation for sustainable, nature-based tourism, which is becoming a world industry and provides major benefits to local communities.⁴²⁷

In addition, "MPAs act as an insurance policy for fisheries," especially when "partially or entirely closed to fishing"⁴²⁸:

In several regions, fish stocks have increased rapidly following establishment of MPAs. Far from hurting the fishing industry, the MPAs led to enhanced catches, so providing direct economic benefit. The larger stocks inside the reserves export their offspring to fishing grounds by ocean currents. Juveniles and adults may also emigrate from the reserve, so boosting nearby fisheries.⁴²⁹

Finally, MPAs "contribute to increased knowledge of marine science through information on functional linkages, implementation of the precautionary principle, provision of control sites for research and ecological benchmarks against which to measure human-induced change"; they also furnish more "natural' systems where natural mortality can be compared to fishing mortality."⁴³⁰

By 1992, several federal statutes allowed various federal agencies to create MPAs. Most obviously, Title III of the Marine Protection, Research, and Sanctuaries Act of 1972⁴³¹ allows the Secretary of Commerce, acting through NOAA, to designate "any discrete area of the marine environment" as a National Marine Sanctuary if he or she 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.⁴³² National Marine Sanctuary designation means that no one can use or remove sanctuary resources except in accordance with federal law.⁴³³ Thirteen National Marine Sanctuaries currently exist, protecting 18,000 square miles of ocean waters and habitats,⁴³⁴ with a fourteenth proposed.⁴³⁵ In addition, the U.S. Department of the Interior can establish MPAs through several statutes,⁴³⁶ and numerous coastal states have protected the beach and ocean areas under their control, although these sites have yet to be completely inventoried.⁴³⁷ Many coastal states also recognize a public trust in their beaches and nearshore waters, which can inhibit development of and preserve public access to beaches and coastal waters.⁴³⁸

Since 1992 at the federal level, however, expanding MPAs has been almost entirely the executive branch's priority, not Congress'. For example, in May 2000, President William J. Clinton issued Executive Order No. 13158 for Marine Protected Areas.⁴³⁹ The order seeks to establish a national system of MPAs, joining areas protected under federal, state, territorial, tribal, or local law.⁴⁴⁰ In June 2001, the Bush Administration "decided to retain Executive Order 13158 on marine protected areas,"⁴⁴¹ and the inventory of existing MPAs is proceeding. As of December 2001, NOAA had listed 251 federal sites, 25 federal/state partnership sites, and 41 state sites as part of the national MPA system.⁴⁴² In contrast, when Congress passed the National Marine [32 ELR 10216] Sanctuaries Amendments of 2000,⁴⁴³ it prohibited the Secretary of Commerce from nominating new National Marine Sanctuaries unless sufficient financial resources were available to "effectively implement sanctuary management plans for each sanctuary in the System" and to "complete site characterization studies and inventory known sanctuary resources . . . within 10 years," effectively eliminating any new sanctuaries.⁴⁴⁴

Coral reef ecosystems have received particular federal attention since 1992. "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. . . ."⁴⁴⁵ In 1994, the United States was one of eight countries to form the International Coral Reef Initiative, and the United States served as Secretariat from 1994 to 1996.⁴⁴⁶ In 1998, President Clinton issued Executive Order No. 13089, which imposed a duty on all federal agencies to protect coral reef ecosystems and created the Coral Reef Task Force.⁴⁴⁷ The Coral Reef Task Force has been carrying out its mission since then, incorporating the efforts of states and territories with coral reefs and adopting, in March 2000, a National Action Plan to Conserve Coral Reefs.⁴⁴⁸ Later in 2000, Congress passed the Coral Reef Conservation Act,⁴⁴⁹ requiring NOAA, in consultation with the Coral Reef Task Force, to adopt a National Coral Reef Action Strategy with goals, objectives, and an implementation plan.⁴⁵⁰ The Act also provides grants for coral reef conservation projects⁴⁵¹ and emergency assistance to state and local governments managing coral reef ecosystems.⁴⁵² The Secretary of Commerce has authority to institute a national program to conserve coral reef ecosystems,⁴⁵³ which is funded for the next four years.⁴⁵⁴

As has been discussed, the marine ecosystem focus and emphasis on protecting coral reefs has even reached federal fisheries management, in the Northwestern Hawaiian Islands Coral Reef Ecosystem Fisheries Management Plan. Nevertheless, because actions to protect marine ecosystems have been largely the work of the executive branch, changes in presidential administration can undercut establishment of a cohesive, long-term national policy regarding the oceans. The fact that President Bush has continued the MPA Executive Order does not change this political reality—indeed, the MPA program was on hold for six months after the change in administration, and NOAA had to re-start the process of selecting the MPA advisory committee a year after the Clinton Administration had already accepted nominations.

In addition, scientific studies indicate that overfishing, when looked at from the perspective of centuries instead of decades, has altered marine ecosystems so thoroughly that no management plan based on recent data will restore them to anything approaching a historical norm. A recent study in Science concludes that:

Evidence from retrospective records strongly suggests that major structural and functional changes due to overfishing occurred worldwide in coastal marine ecosystems over many centuries. Severe overfishing drives species to ecological extinction because overfished populations no longer interact significantly with other species in the community. Overfishing and ecological extinction predate and precondition modern ecological investigations and the collapse of marine ecosystems in recent times, raising the possibility that many more marine ecosystems may be vulnerable to collapse in the near future.⁴⁵⁵

According to this study, overfishing may underlie every other anthropogenic problem that the oceans currently face. The historical perspective demonstrates "that pollution, eutrophication, physical destruction of habitats, outbreaks of disease, invasions of introduced species, and human-induced climate change all come much later than overfishing in the standard sequence of historical events."⁴⁵⁶ It also suggests "that overfishing may be a necessary precondition for eutrophication, outbreaks of disease, or species introductions to occur."⁴⁵⁷ Finally, the historical perspective requires a vastly expanded approach to marine ecosystem preservation, restoration, and management:

More specific paleoecological, archaeological, and historical data should be obtained to refine the histories of specific ecosystems and as a tool for management, but the overall patterns are clear. The historical losses of large animals and oysters were so great as to be unbelievable by modern observations alone . . . . Even the seemingly gloomy estimates of the global percentage of fish stocks that are overfished are almost certainly far too low. The shifting baseline syndrome is thus even more insidious and ecologically widespread than is commonly realized.

The central point for successful restoration is that loss of economically important fisheries, degradation of habitat attractive to landowners and tourists, and emergence of noxious, toxic, and life-threatening microbial diseases are all part of the same standard sequence of [32 ELR 10217] ecosystem deterioration that has deep historical roots. Responding only to current events on a case-by-case basis cannot solve these problems. Instead, they need to be addressed by a series of bold experiments to test the success of integrated management for multiple goals on the scale of entire ecosystems.⁴⁵⁸

Although losses of living marine resources have been huge, however, "recognition of these losses shows what coastal ecosystems could be like, and the extraordinary magnitude of economic resources that are retrievable if we are willing to act on the basis of historical knowledge."⁴⁵⁹

6. Specific Recommendations for the Next 10 Years

As the Magnuson-Stevens Act, the MMPA, and the ESA encapsulate, a species-by-species approach to management of marine living resources has dominated American law and policy since the 1970s. Moreover, while marine mammals and endangered species received "no takings" protections three decades ago, the paradigm of inexhaustibility has allowed overcapitalization of fisheries to become the norm and, until recently, overfishing to be the predictable result of trying to achieve "fully utilized" fisheries in the face of large gaps in knowledge. Many of the most recent entries onto the marine endangered and threatened species lists have been fish.

As with highly migratory fish species, U.S. priority in the next decade should be increased knowledge about its marine living resources. This research, moreover, must be far broader than simply assessing those stocks whose status is currently unknown. Instead, the United States should fund and support research to discover all of the complex interactions of marine living species and their environments, currently and historically, for both species of commercial interest and species for which no commercial use can be foreseen, including current effects of fishing and accurate measurements of bycatch. Without understanding the current and historical complexity of marine ecosystems, the full effects of human fishing, hunting, bycatch, and harvest cannot be understood, nor can truly sustainable management measures be implemented.

As information is gathered, moreover, the United States should more fully explore and experiment with ecosystem-level protection and management. Congress and NOAA should encourage fisheries management councils to write more ecosystem-based fisheries management plans, and these plans should address not only the fish likely to be fished but also their habitat, marine mammals in the area, endangered species that share the ecosystem, food webs, geological and chemical requirements, water quality requirements, and the effects of fishing gear and bycatch on the ecosystem. At the same time, however, the United States should work toward overhauling its current species-by-species, medium-specific, multi-statute, multi-government, and multi-agency legal regime for the oceans to facilitate comprehensive ecosystem management of its seas. While a complete reworking of the current regulatory system will probably take more than a decade, increased use of ecosystem management will provide a useful base of information for such future regulation and will accustom the various local, state, and federal agencies to bringing their various marine-related programs together productively and efficiently in designated regions of the ocean.

Finally, in the next 10 years, Congress should ratify President Clinton's and President Bush's work toward a national system of MPAs by enacting legislation and providing funding to ensure that this program continues to exist despite changes in administration. A statutory national system of MPAs would give the U.S. marine living resources safe places to breed and grow, helping to rebuild depleted, endangered, and overfished species and to ensure their productivity—and hence availability for sustainable use—for decades to come. At the same time, NOAA and the NMFS should continue to incorporate the precautionary principle into all of their management programs and should ensure that attempts at precautionary management, such as the changes to implement the Sustainable Fisheries Act, are actually precautionary enough to improve the status of marine living resources.

III. Conclusion and Overall Recommendation

Sustainable development of the oceans is a relatively new concept, and the United States has yet to embrace it fully. Although in 1997 it reported progress in implementing Chapter 17,⁴⁶⁰ the most focused work by the United States on sustainable development continues to favor the more land-based chapters of Agenda 21. For example, the Natural Resources Management and Protection Task Force's report to the President's Council on Sustainable Development focused on water quality but emphasized freshwater watersheds and drinking water.⁴⁶¹ As far as living marine resources were concerned, the task force's only recommendation was to restore American fisheries.⁴⁶² The council's final report in 1999 similarly elided the oceans from any direct consideration.⁴⁶³

Review of U.S. implementation of Chapter 17's various programs since 1992 has already suggested numerous specific actions that this country should take in the next 10 years. However, these specific actions are likely to be fragmented and uncoordinated unless the United States also addresses the "big picture" of ocean regulation. Specifically, sustainable development of, and regulatory coordination regarding, the oceans will be difficult—if not impossible—to achieve until the United States has clear goals for the overall state of its oceans and coasts.

The United States currently lacks two visions of the ocean necessary to promote sustainable development, visions that it should articulate early in the next decade. First, the United States needs a philosophical vision of the marine environment [32 ELR 10218] as an integrated ecosystem that should be used with caution—not, as much current regulation figures it, as a more-or-less impervious medium in which are found a series of discrete resources that can be exploited to the maximum extent possible. The proposed Northwestern Hawaiian Island Coral Reef Ecosystem Fishery Management Plan is a step in the right direction, as is President Clinton's plan for a national system of MPAs. However, too many statutes and regulations at both the state and federal level continue to treat water quality and marine species as unrelated subjects, and to treat individual marine species as isolated resources unconnected to each other. Indeed, the very existence of so many statutes and so many regulatory authorities evidences the U.S. lack of an overarching and comprehensive regulatory philosophy for its ocean resources.

Second, the United States needs a more concrete vision of what the oceans under its territorial control should be. This vision should have three components: (1) a science-based assessment of what ocean water quality is necessary to support various kinds of marine ecosystems; (2) a science-based and history-based assessment of what qualifies as a "healthy" marine ecosystem for all segments of the ocean under U.S. jurisdiction; and (3) concrete science-based and policy-based goals for restoring and managing marine ecosystems based on the country's needs and desires. Without an overarching vision of what regulatory goals the United States is trying to achieve and what physical, chemical, and biological components are necessary to achieve these results, regulatory policy will likely continue to be fragmented guesswork.

The Oceans Act of 2000⁴⁶⁴ offers the federal government a means to identify and articulate these two visions of the oceans. The Act establishes a commission whose sole function is "to make recommendations for a coordinated and comprehensive national ocean policy . . . ."⁴⁶⁵ The resulting national policy is supposed to address nearly every component of Chapter 17 of Agenda 21.⁴⁶⁶ The Commission on Ocean Policy consists of 16 members representing a variety of interests,⁴⁶⁷ whom President Bush appointed on June 15, 2001.⁴⁶⁸ The commission's final report will be due to Congress and President Bush in late 2002 or early 2003.⁴⁶⁹ Four months later, President Bush is supposed to submit to Congress recommendations for U.S. ocean law and policy based on the commission's report.⁴⁷⁰

More generally, the people of the United States need to embrace the idea that their oceans are not inexhaustible resources that can be used without thought. Horrific events such as the Exxon Valdez oil spill, the annual fish kills in the Gulf of Mexico, and outbreaks of marine-based diseases help to raise public awareness that things can go awry in the sea, but they also suggest that ocean problems are isolated, if catastrophic, events. The explosion of popular books on the ocean and its inhabitants in the last few years is perhaps a better sign that the longer term troubles of the ocean have captured the popular imagination, but public education regarding the importance of our oceans and coasts and the threats to their sustainable development should be an important component of U.S. ocean policy throughout the next 10 years. As any photograph of our planet from space makes clear, we inhabit Planet Ocean, not Planet Earth, and sustaining ourselves will increasingly require sustainable and precautionary policies toward our seas.

1. THOMAS E. SVARNEY & PATRICIA BARNES-SVARNEY, THE HANDY OCEAN ANSWER BOOK 3, 6 (2000).

2. Id. at 7.

3. Id. at 6.

4. Id. at 65.

5. Id. at 229-30.

6. Id. at 76.

7. Id. at 77.

8. Id. at 78-86.

9. COLIN WOODWARD, OCEAN'S END: TRAVELS THROUGH ENDANGERED SEAS 30 (2000).

10. Until the 1990s people generally assumed that this wanton destruction of nature stops at the ocean's shore. I was told from elementary school on that the oceans are our strategic reserve of food and resources; they are simply too vast to be seriously affected by human activity. If we run out of arable land to feed the growing masses then we'll learn to farm the seafloor. Not enough meat protein to go around? Not to worry, we can always draw on the ocean's limitless supply of fish. Not enough living space? Too much ultraviolet light coming through the ozone hole? Perhaps we can build underwater cities. We can trust the oceans to fill the gap, my mid-1970s reading curriculum suggested, until we colonize the Moon and Mars.

Id. at 34.

11. Id. at 10-12.

12. Id. at 3.

13. Id. at 12, 21.

14. For example, the 1958 Convention on Fishing and Conservation of the Living Resources of the High Seas, part of the first United Nations Conference on the Law of the Sea, was a first attempt at imposing a responsibility on signatory nations to sustainably develop the ocean's resources—but only the living resources. Under the convention, signatory nations "have a duty to adopt, or to co-operate with other States in adopting, such measures for their respective nationals as may be necessary for the conservation of the living resources of the high seas." Convention on Fishing and Conservation of the Living Resources of the High Seas, Apr. 29, 1958, United Nations, art. 1.2. The convention defines "conservation of the living resources of the high seas" to mean "the aggregate of the measures rendering possible the optimum sustainable yield from those resources so as to secure a maximum supply of food and other marine products." Id. art. 2 (emphasis added). However, although the convention entered into force, "it was effectively a failure" because "none of the leading distant water fishing nations became parties . . . ." JOSEPH J. KALO ET AL., COASTAL AND OCEAN LAW: CASES AND MATERIALS 331 (1999).

15. U.N. Conference on Environment & Development (UNCED), Agenda 21, U.N. Doc. A/CONF. 151.26 (1992).

16. Id. at ch. 17, Agenda 21, entitled "Protection of the Oceans, All Kinds of Seas, Including Enclosed and Semi-Enclosed Seas, and Coastal Areas and the Protection, Rational Use and Development of Their Living Resources."

17. Id. § 17.1.

18. Id.

19. KALO ET AL., supra note 14, at 321-23.

20. THE H. JOHN HEINZ III CENTER FOR SCIENCE, ECONOMICS, AND THE ENVIRONMENT, FISHING GROUNDS: DEFINING A NEW ERA FOR AMERICAN FISHERIES MANAGEMENT 32 (2000) (quoting "Anonymous Scientist Associated With the Fishery Management Council Process").

21. Id.

22. See generally MICHAEL HARRIS, LAMENT FOR AN OCEAN: THE COLLAPSE OF THE ATLANTIC COD FISHERY: A TRUE CRIME STORY (1999 updated ed.). Chapter 8, "The Oslo Option," is particularly revealing in its comparison of Norway, which rebuilt its cod fishery, and Canada, which allowed political pressures to trump science. Id. at 181-204.

23. See, e.g., Reuters New Service, Report Says Soviets Dumped 20 Nuclear Reactors at Sea, SALT LAKE TRIB., Apr. 11, 1993, at A2. More recently, it has been discovered that nuclear waste from the United Kingdom is contaminating Norway's ocean waters. Paul Brown, Norway Fury at UK Nuclear Waste Flood, THE GUARDIAN, Dec. 20, 1997, at 011. In July 2001, Norway extended its territorial waters eight miles to deal with continuing threats from ocean nuclear waste. Ariane Sains, Norway Extends Territorial Claim to Keep Nuclear Waste From Shores, 42 NUCLEONICS WK., July 12, 2001, at 14.

24. For example, "in November 1997, a 70-ton finback whale washed ashore on a beach in northern Spain and died, despite earnest rescue attempts. An autopsy revealed that its digestive tract had been clogged with an enormous bolus whose nucleus was 20 kilograms of plastic—shopping bags, trash bags, boat lines, yogurt containers." ROBERT KUNZIG, THE RESTLESS SEA: EXPLORING THE WORLD BENEATH THE WAVES xiii (1999).

25. Indeed, recent scientific and historical studies indicate that all modern regulation in the United States has proceeded from false assumptions of what the oceans' "natural" states are, because human fishing has been disrupting ocean ecosystems for several centuries. See generally Jeremy B.C. Jackson et al., Historical Overfishing and the Recent Collapse of Coastal Ecosystems, 293 SCIENCE 629-38 (2001).

26. Chapter 17's fifth program addresses climate change, which will be addressed in a forthcoming ELR article by Don Brown. It is worth emphasizing, however, that oceans are particularly vulnerable to two types of climate change: global warming and ozone depletion. Ozone depletion increases levels of ultraviolet radiation, with largely unknown results. UNCED, supra note 15, at Agenda 21, § 17.98. The effects of global warming, in contrast, are predicted to be truly catastrophic, including a severe rise in sea level, increasingly violent weather, abrupt changes in major ocean currents and accompanying changes in climate, and decreased capacity of the oceans to absorb CO₂, exacerbating the rate of global warming. Id. § 17.97; KUNZIG, supra note 24, at 266-319 (describing ocean currents and the potential effects of global warming). In addition, climate change could drastically affect marine habitats and marine biodiversity:

If problems exist now, they are likely to be even greater in the future because of climate change. The predicted sea-level rise could be devastating to many islands. Pacific and Indian Ocean countries are particularly vulnerable, because of their hundreds of low-lying islands and atolls. The effects would be worst during cyclones, storm surges, king tides and the El Nino fluctuations. The coastline will be more prone to erosion, putting coastal infrastructure at risk. Mangroves will disappear and farmland will be inundated with salt water. A UNEP study has estimated that sea-level rise could cause the Marshall Islands, Kiribati, Tuvalu and Tokelau to cease to exist as nations. In both 1990 and 1991, the largest tides of the year almost inundated the urban area of Majuro in the Marshall Islands. Here is an environmental threat that is putting the survival of whole nations at risk.

One of the marine ecosystems that is most vulnerable to climate change is the coral reef. The rate of sea-level rise can exceed the rate of vertical growth of coral formations. Temperature increases can cause coral bleaching followed by death.

The impact of climate change is multi-factorial, i.e., biodiversity may be lost as a result of the interaction of different effects. For example, there is some evidence that, if stressed by nutrient levels and/or increased sediments, coral reefs are more vulnerable to temperature changes and increases in ultraviolet radiation. Also, if vegetable cover on land is lost on a large scale, the increased erosion will be very damaging to coral reefs. Increased storm activity, too, will lead to more freshwater run-off, probably including higher erosion and nutrient run-off rates; the resulting lower salinity will adversely affect the coral.

Impacts of climate change are not confined to the tropics. There is already evidence of increased ice-melting rates, salinity changes, shifts in thermoclines and productivity changes. Sea-level rise in many parts of the world will lead to the loss of intertidal habitats such as mangroves, salt marshes and productive mudflats. Changing sea temperatures can lead to changes in the spatial range of marine species. Warm water species can spread polewards, interacting with local species, possibly depleting their numbers or displacing them. The species composition and structure of many marine habitats, particularly in temperate regions, may change.

The big danger is that the rate of climate change and consequent effects on the sea may exceed the adaptive capacity of marine ecosystems.

WORLD COMM'N ON PROTECTED AREAS, GUIDELINES FOR MARINE PROTECTED AREAS xv-xvi (Graeme Kelleher ed., 1999).

Chapter 17's sixth program addresses international cooperation, which this chapter addresses in discussing the other programs. Finally, Chapter 17's seventh program addresses the particular concerns of small island nations.

27. UNCED, supra note 15, at Agenda 21, § 17.1.

28. DIVISION FOR OCEAN AFFAIRS & THE LAW OF THE SEA, UNITED NATIONS, STATUS [OF UNITED NATIONS CONVENTION ON THE LAW OF THE SEA AND RELATED AGREEMENTS], available at http://www.un.org/Depts/los/convention_agreements/convention_agreements.htm (last modified Jan. 22, 2001).

29. United Nations Convention on the Law of the Sea, art. 87, Dec. 10, 1982 (entered into force Nov. 16, 1994). In particular, UNCLOS III recognizes six freedoms in the high seas: "(a) freedom of navigation; (b) freedom of overflight; (c) freedom to lay submarine cables and pipelines . . .; (d) freedom to construct artificial islands and other installations permitted under international law . . .; (e) freedom of fishing . . .; [and] (f) freedom of scientific research." Id.

30. Id. arts. 2.1, 2.2, 3.

31. Id. arts. 17-25.

32. Id. art. 33.

33. Id.

34. Id. art. 81.

35. Id. art. 79.1.

36. Id. art. 76.1.

37. Id.

38. See id. arts. 55-75.

39. Id. art. 57.

40. Id. art. 56.1.

41. Id. art. 61.1.

42. Id. art. 61.2. Coastal nations must also enact management and conservation measures that "are designed to maintain or restore populations of harvested species at levels which can produce the maximum sustainable yield . . . ." Id. art. 61.3.

43. Id. art. 62.4.

44. Id. art. 73.

45. Id. art. 63.

46. Id. art. 64.

47. Id. art. 119.1(a).

48. Id. art. 118.

49. Id. art. 192.

50. Id. art. 194.1.

51. Id. art. 194.2. However, UNCLOS III particularly emphasizes control over "the release of toxic, harmful or noxious substances," id. art. 194.3(a); "pollution from vessels," id. arts. 194.3(b), 211; pollution from sea-bed activities, id. arts. 194.3(c), 208, 209, 214, 215; pollution by dumping, id. arts. 210, 216; and "pollution from or through the atmosphere." Id. arts. 212, 222. Signatory nations also agree to "take all measures necessary to prevent, reduce and control . . . the intentional or accidental introduction of species, alien or new, to a particular part of the marine environment, which may cause significant or harmful changes thereto." Id. art. 196.

52. Id. art. 237.

53. Id. arts. 238-265.

54. Id. art. 239.

55. In the territorial sea, coastal nations "have the exclusive right to regulate, authorize and conduct marine scientific research"; all others must receive "express consent" and must comply with the coastal nation's regulations. Id. art. 245. Coastal nations also have control over research conducted in their EEZs and continental shelves, and researchers must still receive the nation's consent, but the coastal nation "shall, in normal circumstances, grant [its] consent" to such research." Id. arts. 247.1, 247.2. Beyond the EEZ, all nations have the right to conduct research. Id. art. 257.

56. DIVISION FOR OCEAN AFFAIRS & THE LAW OF THE SEA, UNITED NATIONS, STATUS OF THE UNITED NATIONS CONVENTION ON THE LAW OF THE SEA AND RELATED AGREEMENTS (2001), available at http://www.un.org/Depts/los/reference_files/status2001.pdf.

57. In fact, in 1976, the United States helped to precipitate the 200-mile EEZ provisions in UNCLOS III when Congress "passed the Magnuson Fishery Conservation and Management Act, which established a 200-mile exclusive fishing zone for the United States . . . and effectively ensured that 200-mile zones would not only be part of any future law of the seas treaty but would also be accepted in customary international law within a few years." KALO ET AL., supra note 14, at 336; see also Pub. L. No. 94-265 §§ 3(11), 101, 90 Stat. 331 (1976) (enacting the Magnuson-Stevens Fishery Conservation and Management Act). In 1983, a year after UNCLOS III was drafted, President Ronald Reagan proclaimed a 200-mile EEZ for the United States for all purposes. Exclusive Economic Zone of the United States of America, Proclamation No.5030, 48 Fed. Reg. 10605 (Mar. 10, 1983). Five years later he extended the U.S. territorial sea to 12 miles. Territorial Sea of the United States of America, Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988). President William J. Clinton completed the job in 1999, when he proclaimed that the United States controlled a 24-mile-wide contiguous zone. Contiguous Zone of the United States, Proclamation No. 7219, 64 Fed. Reg. 48701 (Aug. 2, 1999).

58. Liza Tewell, Oceans Act Allows Public Input, SEATTLE POST-INTELLIGENCER, Aug. 16, 2000, at C5.

59. The Learning Network, Profile of the United States: Geography, at http://www.infoplease.com/ipa/A0004924.html (last visited Nov. 12, 2001) (reporting the total land area of the United States as 3,717,792 square miles).

60. United Nations Commission on Sustainable Development, Implementation of Agenda 21: Review of Progress Made Since the United Nations Conference on Environment and Development, 1992: United States of America (Apr. 7-25, 1997), at http://www.un.org/esa/earthsummit/usa-cp.htm (last visited Nov. 14, 2001).

61. For a more complete history, see Robin Kundis Craig & Sarah Miller, Ocean Discharge Criteria and Marine Protected Areas: Ocean Water Quality Protection Under the Clean Water Act, 28 B.C. ENVTL. AFFAIRS L. REV. 8-13 (2001).

62. 43 U.S.C. §§ 1301-1303, 1311-1315.

63. Id. § 1301(a)(2). States with historical claims for more control could also press those claims against the United States, id. §§ 1301(a)(2), 1312, with the result that Florida and Texas have acquired jurisdiction extending three marine leagues (nine nautical miles) into the Gulf of New Mexico. KALO ET AL., supra note 14, at 374 n.1.

64. 43 U.S.C. § 1314(a).

65. BILIANA CICIN-SAIN & ROBERT W. KNECHT, INTEGRATED OCEAN AND COASTAL MANAGEMENT: CONCEPTS AND PRACTICES 15 (1998).

66. Id.

67. Office of Water, U.S. EPA, About Estuaries: Why Protect Estuaries?, at http://www.epa.gov/owow/estuaries/aboutl.htm (last modified June 22, 2001); Thomas J. Culliton, Population: Distribution, Density and Growth: National Picture, in NOAA, STATE OF THE COAST REPORT (1998), available at http://state-of-coast.noaa.gov/bulletins/html/pop_01/pop.html (last visited July 30, 2001).

68. Culliton, supra note 67. "These counties are classified as coastal because they are located entirely or partially within the nation's coastal watersheds." Id.

69. See About Estuaries, supra note 67.

70. SVARNEY & BARNES-SVARNEY, supra note 1, at 360. Salt marshes "are large, flat areas of land protected from the wave action of the tides, but still inundated with brackish to salty tidal waters . . . ." Id. at 361. Mud flats, in turn, "are relatively flat areas covered with very fine-grained silt (in a sheltered estuary), and alternately covered and uncovered by the tide," while "the tidal marshes are found on the landward side of the salt marshes and mud flats." Id.

71. See id. at 362-63.

Salt marshes are thought to be some of the most dynamic and rigorous environments because of conditions set up by the tides. As the tides move in and out of the marsh, the animals and plants have to shift from being terrestrial (land) to oceanic organisms in a few short hours. During this time, the water levels, salinity, temperatures, and exposure to air vary greatly—making it a challenge for the organisms that live here. To add to the pressure, there are also periodic tropical storms and spring and summer floods that must be endured.

Id. See also id. at 364 (noting that coastal mud flats support sessile (anchored) plants, mollusks such as clams, and crustaceans such as crabs, while the more protected tidal marshes provide habitat for numerous kinds of shorebirds and mammals).

72. Id.

73. Id. at 361. "Estuaries and the lands surrounding them are places of transition from land to sea, from fresh to salt water." See About Estuaries, supra note 67.

74. SVARNEY & BARNES-SVARNEY, supra note 1, at 362.

75. See About Estuaries, supra note 67.

76. SVARNEY & BARNES-SVARNEY, supra note 1, at 362.

77. UNCED, supra note 15, at Agenda 21, § 17.3 (recognizing that "more than half the world's population lives within 60 [kilometers] of the shoreline" and that that figure "could rise to three quarters by the year 2020").

78. Id.

79. Id. § 17.4

80. Id. § 17.5.

81. Id. § 17.5(d); see also id. §§ 17.5(a)-(c), (e), (f), 17.6.

82. Id. § 17.6(a).

83. Id. § 17.6(c).

84. Id. § 17.6(d).

85. Id. § 17.6(h).

86. Id. § 17.6(n).

87. Id. § 17.7.

88. Id. § 17.6(l).

89. Id. § 17.8.

90. Id. § 17.9.

91. Id. §§ 17.11-17.15.

92. 16 U.S.C. §§ 1451-1464, ELR STAT. CZMA §§ 302-319 (1994), as added by Pub. L. No. 92-583, 86 Stat. 1280 (Oct. 27, 1972).

93. Id. § 1451(a), ELR STAT. CZMA § 302(a).

94. Id. § 1453(l), ELR STAT. CZMA § 304(l).

95. Id. § 1452(l), ELR STAT. CZMA § 303(l).

96. Id. §§ 1455(b), (d), 1455a, 1455b(d), (f), (g), 1456a, 1456b, 1456c, 1460, ELR STAT. CZMA §§ 306(b), (d), 306A, 308, 309, 310, 314.

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

98. Id. § 1455(d)(2)(B)-(E), (9)-(12), ELR STAT. CZMA § 306(d)(2)(B)-(E), (9)-(12).

99. Id. §§ 1455(d)(16); 1455b, ELR STAT. CZMA § 306, as added by the Coastal Zone Act Reauthorization Amendments of 1990, Pub. L. No. 101-508, § 6217, 104 Stat. 1388-314 (Nov. 5, 1990).

100. Id. § 1456(c), ELR STAT. CZMA § 310.

101. CICIN-SAIN & KNECHT, supra note 65, at 273.

102. BILIANA CICIN-SAIN & ROBERT W. KNECHT, THE FUTURE OF U.S. OCEAN POLICY 116 (2000).

103. Office of Coastal Resources Management, NOAA, Washington Coastal Management Program, at http://www.ocrm.nos.noaa.gov/czm/czmwashington.html (last modified Aug. 12, 2001).

104. Office of Coastal Resources Management, NOAA, Oregon Coastal Management Program, at http://www.ocrm.nos.noaa.gov/czm/czmoregon.html (last modified Aug. 12, 2001); Office of Coastal Resources Management, NOAA, California Coastal Management Program, at http://www.ocrm.nos.noaa.gov/czm/czmcalifornia.html (last modified Aug. 12, 2001). All state Coastal Zone Management Act (CZMA) programs are accessible through a central NOAA website. Office of Coastal Resources Management, NOAA, Coastal Zone Management Program, at http://www.ocrm.nos.noaa.gov/czm/national.html (last modified Aug. 12, 2001).

105. CICIN-SAIN & KNECHT, supra note 102, at 125. The five were Illinois, Indiana, Minnesota, Ohio, and Texas. Id.

106. See 52 Fed. Reg. 47441, 47441 (Dec. 14, 1987) (proposing to reevaluate, as the CZMA requires, all five territorial programs).

107. 16 U.S.C. §§ 3501-3510, as added by Pub. L. No. 97-348, 96 Stat. 1654 (Oct. 18, 1982).

108. Id. § 3503(a). The Act defines "undeveloped coastal barrier" to be:

(A) a depostional geologic feature (such as a bay barrier, tombolo, barrier spit, or barrier island) that—

(i) consists of unconsolidated sedimentary materials,

(ii) is subject to wave, tidal, and wind energies, and

(iii) protects landward aquatic habitats from direct wave attack; and

(B) all associated aquatic habitats, including the adjacent wetlands, marshes, estuaries, inlets, and nearshore waters; but only if such feature and associated habitats contain few manmade structures and these structures, and man's activities on such feature and within such habitats, do not significantly impede geomorphic and ecological processes.

Id. § 3502(l).

109. Id. § 3504(a).

110. Id. § 3505(a). The most significant of these exceptions are for maintaining navigation and for the military and U.S. Coast Guard. Id. § 3505(a)(2), (4), (5).

111. Id. § 3505(d)(2), (3).

112. 16 U.S.C. § 1461(a), (b), ELR STAT. CZMA § 315(a), (b). Estuaries within the system are set aside primarily for research, and the Secretary of Commerce, acting through NOAA, was to establish "a mechanism for identifying, and establishing priorities among, the coastal management issues that should addressed through coordinated research within the System . . . ." Id. § 1461(c)(1), ELR STAT. CZMA § 315(c)(1).

113. 33 U.S.C. §§ 1251-1387, ELR STAT. FWPCA §§ 101-607.

114. Pub. L. No. 100-4, § 317(b), 101 Stat. 61 (Feb. 4, 1987); Pub. L. No. 100-202, § 101(f), 101 Stat. 1329-197 (Dec. 22, 1987) (codified as 33 U.S.C. § 1330, ELR STAT. FWPCA § 320 (1994)).

115. 33 U.S.C. § 1330(a)(1), ELR STAT. FWPCA § 320(a)(1). Congress also specified 16 estuaries to which EPA was to give priority. Id. § 1330(2)(B), ELR STAT. FWPCA § 320(2)(B).

116. Id. § 1344(a)(1), ELR STAT. FWPCA § 404(a)(1).

117. See id. § 1362(7), ELR STAT. FWPCA § 502(7) (defining "navigable waters" to be "the waters of the United States, including the territorial seas"); 33 C.F.R. § 328.3(a)(2), (7) (EPA's regulation defining "waters of the United States" to include "interstate wetlands" and wetlands adjacent to the territorial sea). Although the U.S. Supreme Court recently limited the categories of isolated, inland wetlands that § 404 covers, it left intact § 404's coverage of adjacent wetlands. Solid Waste Agency of N. Cook County v. Corps of Eng'rs, 121 S. Ct. 675, 680, 31 ELR 20382, 20383 (2001).

118. 33 U.S.C. § 1344(a), ELR STAT. FWPCA § 404(a).

119. Id. § 1341(a)(1), ELR STAT. FWPCA § 401(a)(1).

120. CICIN-SAIN & KNECHT, supra note 102, at 127.

121. OFFICE OF WATER, U.S. EPA, DRAFT: CLEAN WATER ACTION PLAN: NATIONAL COASTAL CONDITION REPORT xviii (2001), available at http://www.epa.gov/owow/oceans/cwap/downloads.html. EPA plans to release the final version of this report in January 2002. See http://www.epa.gov/owow/oceans/nccr/index.html (last modified Dec. 11, 2001).

122. OFFICE OF WATER, U.S. EPA, supra note 121, at x. The Southeast coast is in the best shape, followed by the West; the Northeast and Gulf coasts are in the poorest condition. Id.

123. Id.

124. Id. at xv.

125. Id. at x.

126. Id. at xiii.

127. Id.

128. For example, leading estuary pollutants include pathogens such as bacteria, oxygen-depleting substances, metals, nutrients, thermal modifications, polychlorinated biphenyls, and toxic organic compounds, which come primarily from municipal point sources, urban runoff and stormsewers, atmospheric deposition, industrial discharges, agriculture, land waste disposal, and combined sewer overflows. Id. at xvi.

129. Culliton, supra note 68. See also OFFICE OF WATER, U.S. EPA, supra note 121 (giving the same projections).

130. Id. at 3.

131. Sandy Ward & Catherine Main, Population at Risk From Natural Hazards, in NOAA STATE OF THE COAST REPORT (1998), at http://state-of-coast.noaa.gov/bulletins/html/par_02/intro.html (last visited July 30, 2001),.

132. OFFICE OF WATER, U.S. EPA, supra note 121, at 4.

133. Id.

134. See generally William C. Millhouser et al., Managing Coastal Resources, in NOAA, STATE OF THE COAST REPORT (1998), available at http://state-of-coast.noaa.gov/bulletins/html/crm_13/crm.html (last visited July 30, 2001)

135. CICIN-SAIN & KENCHT, supra note 102, at 125.

136. Kenneth Walker & Matt Arnn, Preserving Waterfronts for Water-Dependent Uses, in NOAA, STATE OF THE COAST REPORT (1998), available at http://state-of-coast.noaa.gov/bulletins/html/wdu_11/wdu.html (last visited July 30, 2001)

137. Sandy Ward & Catherine Main, Reducing the Impacts of Coastal Hazards, in NOAA, STATE OF THE COAST REPORT (1998), available at http://state-of-coast.noaa.gov/bulletins/html/rtt_06/national.html (last visited July 30, 2001). Some local communities have adopted even more stringent building codes to reflect disaster threats particular to their communities, and "the public and private sectors can also encourage residents to retrofit existing structures for hazard resistance" through incentives such as reduced taxes and insurance premiums. Id.

138. Andrew Robertson et al., Monitoring the Coastal Environment, in NOAA, STATE OF THE COAST REPORT (1998), available at http://state-of-coast.noaa.gov/bulletins/html/mcwq_12/mcwq.html (last visited Dec. 16, 2001).

139. See generally Millhouser et al., supra note 134.

140. CICIN-SAIN & KNECHT, supra note 65, at 273. See also Millhouser et al., supra note 134 (noting that the four primary areas of interest to coastal states have been preservation of wetlands, coastal hazards, public access, and coastal development).

141. In the Black Sea, for example, cholera contaminations killed several people and rendered hundreds of others ill, and "Russian scientists recorded bacterial counts 10 or 20 times the normal level." COLIN WOODARD, OCEAN'S END: TRAVELS THROUGH ENDANGERED SEAS 23 (2000).

142. Office of Water, U.S. EPA, Bacterial Water Quality Standards for Recreational Waters (Freshwater and Marine Waters): Status Report, at http://www.epa.gov/ost/beaches/local/sum2.htm (last modified June 14, 2001).

143. OFFICE OF WATER, U.S. EPA, supra note 121, at xvii.

144. Office of Water, U.S. EPA, The Beach Program: Introduction, at http://www.epa.gov/ost/beaches/2000/introduction.html (last modified June 14, 2001).

145. Id. This program can be found at http://www.epa.gov/ost/beaches/.

146. OFFICE OF WATER, U.S. EPA, ACTION PLAN FOR BEACHES AND RECREATIONAL WATERS: REDUCING EXPOSURES TO WATERBORNE PATHOGENS (1999). The plan has two objectives: (1) "to enable consistent management of recreational water quality programs," id. at iv, and (2) "to improve the science that supports recreational water monitoring programs." Id. at v.

147. Pub. L. No. 106-284, 114 Stat. 870 (Oct. 10, 2000).

148. Id. § 2. "Coastal Recreation Waters" are the Great Lakes and "marine coastal waters (including coastal estuaries)" that states designate "for use for swimming, bathing, surfing, or similar water contact activities." Id. § 5. In addition, EPA has three years to complete new studies regarding pathogen indicators in coastal waters, id. § 3(a), and it must publish performance criteria for monitoring and assessing coastal recreational waters. Id. § 4.

149. 33 U.S.C. §§ 1313(d), ELR STAT. FWPCA § 303(d).

150. CICIN-SAIN & KNECHT, supra note 65, at 274.

151. CICIN-SAIN & KNECHT, supra note 102, at 116-17.

152. Id. at 127-28.

153. Id. at 129. "Extending the programs to encompass ocean uses in the territorial sea (and in the EEZ to the extent that state interests are involved) and bringing other ocean sectors such as fisheries under the ambit of CZM have generally been slow." Id.

154. 16 U.S.C. § 1455(d)(9), ELR STAT. CZMA § 306(d)(9) (emphasis added).

155. U.S. CONST. amend. V.

156. See, e.g., Lucas v. South Carolina Coastal Comm'n, 505 U.S. 1003, 22 ELR 21104 (1992) (holding that a state statute that changed the allowable building line to prevent coastal erosion effected a "taking" of a coastal landowner's undeveloped waterfront property).

157. SVARNEY & BARNES-SVARNEY, supra note 1, at 431.

158. Id. at 433.

159. Id.

160. Office of Water, U.S. EPA, Pointer No. 1: Nonpoint Sources of Pollution: The Nation's Largest Water Quality Problem, at http://www.epa.gov/OWOW/nps/facts/point1.htm (last visited Nov. 13, 2001). The third leading source is municipal point sources, such as sewer systems. Id.

161. SVARNEY & BARNES-SVARNEY, supra note 1, at 433.

162. Id.

163. Id.

164. Id. at 444.

165. Id.

166. WOODWARD, supra note 9, at 102.

167. Office of Water, U.S. EPA, What Is Nonpoint Source (NPS) Pollution? Questions and Answers, at http://www.epa.gov/owow/nps/qa.html (last modified Dec. 30, 1997).

168. Office of Water, U.S. EPA, Atmospheric Deposition and Water Quality, at http://www.epa.gov/owow/oceans/airdep/air1.html (last visited Nov. 13, 2001).

169. Id.

170. Office of Water, U.S. EPA, Which Pollutants Pose the Greatest Problems for Water Quality?, at http://www.epa.gov/owow/oceans/airdep/air2.html (last visited Nov. 13, 2001).

171. John Seltz, Director, Office of Air Quality & Planning Standards, EPA, and Robert H. Wayland III, Director, Office of Wetlands, Oceans, and Watersheds, EPA, Air-Water Workplan Cover Letter 1 (Jan. 18, 2001), at http://www.epa.gov/owow/oceans/airdep/grubbssigl.pdf.

172. Office of Water, U.S. EPA, What Are the Effects of Atmospheric Deposition on Water Quality, Ecosystems, and Human Health?, at http://www.epa.gov/owow/oceans/airdep/air3.html (last visited Nov. 13, 2001).

173. Id.

174. UNCED, supra note 15, at Agenda 21, § 17.18.

175. Id. § 17.19.

176. Id. § 17.24.

177. ESCAP Virtual Conference, Global Instruments on Marine Pollution, at http://www.unescap.org/drpad/vc/orientation/legal/3_marine.htm (last visited Nov. 12, 2001).

178. UNCED, supra note 15, Agenda 21, § 17.25.

179. Id. § 17.27(b), (c).

180. Id. § 17.27(f).

181. Id. § 17.28(a)-(c).

182. Id. § 17.28(d), (e), (g), (i).

183. Id. § 17.28(f).

184. Id. § 17.28(h), (j).

185. Id. § 17.29.

186. Id. § 17.30(a)(iii), (b)(i), (b)(ii), (d). For example, in 1992 the London Convention for the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, more commonly known as the London Dumping Convention, and which came into force in 1975, prohibited signatory nations (including the United States) from dumping at sea any materials listed in the London Convention unless those materials rapidly become harmless. KALO ET AL., supra note 14, at 713-14. The 1973 Convention for the Prevention of Pollution From Ships (MARPOL) prohibits "intentional discharges of harmful substances [from] virtually all vessels and oil platforms." Id. at 691-92.

187. UNCED, supra note 15, at Agenda 21, §§ 17.22, 17.31.

188. Id. § 17.30(a)(viii).

189. Id. § 17.30(a)(ix), (x).

190. Id. § 17.30(a)(xi).

191. Id. § 17.30(a)(xii), (b)(ii).

192. Id. § 17.30(c).

193. Id. § 17.32.

194. Id. § 17.30(a)(iv).

195. Id. § 17.30(a)(v).

196. Id. § 17.30(a)(vi).

197. Id. § 17.30(a)(vii).

198. Id. § 17.21.

199. Id. § 17.35.

200. Id. § 17.37.

201. 33 U.S.C. § 1251(a), ELR STAT. FWPCA § 101(a).

202. Id. §§ 1281-1299, ELR STAT. FWPCA §§ 201-219.

203. See id. § 1342(a), ELR STAT. FWPCA § 402. States can acquire authority to issue NPDES permits, id. § 1342(b), ELR STAT. FWPCA § 402(b), but state-issued permits must still comply with the federal requirements. Id. § 1342(b)(1)(A), ELR STAT. FWPCA § 402(b)(1)(A).

204. United Nations Commission on Sustainable Development, supra note 60.

205. 33 U.S.C. § 1342(a)(1), ELR STAT. FWPCA § 402(a)(1).

206. Id. § 1362(12), (14), (7), ELR STAT. FWPCA § 502(12), (14), (7). The Act defines "pollutant" very broadly, covering almost anything added to water, including heat. Id. § 1362(6), ELR STAT. FWPCA § 502(6).

207. Id. §§ 1311(b), 1312, 1362(11), ELR STAT. FWPCA §§ 301(b), 302, 502(11).

208. Id. § 1313(a), (b), (c), ELR STAT FWPCA § 303(a), (b), (c).

209. Id. § 1343, ELR STAT. FWPCA § 403.

210. Id. § 1317(a), ELR STAT. FWPCA § 307(a).

211. Id. § 1362(12)(B), ELR STAT. FWPCA § 502(12)(B).

212. Under the CWA, EPA has established: "Federal standards of performance for marine sanitation devices . . . to prevent the discharge of untreated or inadequately treated sewage" from vessels. Id. § 1322(b)(1), ELR STAT. FWPCA § 312(b)(1). The ocean dumping provisions of 1972 Marine Protection, Research, and Sanctuaries Act, 33 U.S.C. §§ 1401-1445, implement the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Material, prohibit the dumping of any material into the oceans without a permit, and regulate incineration of wastes at sea. Moreover, effective January 1, 1992, the Ocean Dumping Ban Act of 1988 prohibited dumping of sewage sludge and industrial waste into the oceans. 33 U.S.C. §§ 1414b-1414c. In December 1987, the Senate unanimously approved Annex V (Regulations for the Prevention of Pollution by Garbage From Ships) of MARPOL, and Congress enacted the Marine Plastic Pollution Research and Control Act of 1987 to implement its provisions. 33 U.S.C. §§ 1901-1912. The Deepwater Ports Act of 1974, 33 U.S.C. §§ 1501-1524, establishes licensing requirements for human-made ports outside the three-mile limit, while the Ports and Waterways Safety Act, as amended by the Port and Tanker Safety Act of 1978, 33 U.S.C. §§ 1221-1232, imposes vessel construction requirements on cargo vessels that carry oil or hazardous substances, and gives the U.S. Coast Guard authority to control vessel movement in ports and other hazardous areas.

Cleanup liability statutes have also been effective in preventing marine pollution. Vessels and other sources that discharge nonpetroleum hazardous or toxic products into the ocean are liable for the cleanup costs under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA). 42 U.S.C. §§ 9601-9675, ELR STAT. CERCLA §§ 101-405; see especially id. § 9607, ELR STAT. CERCLA § 107. In 1990, in response to the Exxon Valdez oil spill, Congress passed the Oil Pollution Act (OPA), 33 U.S.C. §§ 2701-2761, ELR STAT. OPA §§ 1001-7001, which imposes cleanup and damage liability on responsible parties, including vessels, that release oil "into or upon the navigable waters or adjoining shorelines or the [EEZ] . . . ." Id. § 2702(a), ELR STAT. OPA § 1002(a). Both CERCLA and the OPA allow states and the federal government to recover compensation from the responsible party for damages to natural resources. 33 U.S.C. §§ 2701(20), 2702(b)(2)(A), 2706(d), ELR STAT. § OPA § 1001(20), 1002(b)(2)(A), 1006(d); 42 U.S.C. § 9607(f), ELR STAT. CERCLA § 107(f). Between 1990, when Congress enacted the OPA, and 1993, discharges of oil into the nation's coastal waters dropped from 13.91 metric tons per year to only 1.54 metric tons. United Nations Commission on Sustainable Development, supra note 60.

213. See generally Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990, 16 U.S.C. §§ 4701-4751. Congress expanded attention to marine alien species invasions in the National Invasive Species Act of 1996, Pub. L. No. 104-332, 110 Stat. 4073 (Oct. 26, 1996), while President Clinton created an Invasive Species Council in 1999. Exec. Order No. 13112, 64 Fed. Reg 6183, 6184-85 (Feb. 3, 1999), ADMIN. MAT. 45105.

214. 33 U.S.C. § 1329, ELR STAT. FWPCA § 319 (as added by Pub. L. No. 100-4, § 316(a), 101 Stat. 52 (Feb. 4, 1987)).

215. Id. § 1329(a)(1), (b), ELR STAT. FWPCA § 319(a)(1), (b).

216. Id. § 1329(e), (f), (h), (i), ELR STAT. FWPCA § 319(e), (f), (h), (i).

217. Id. § 1329(b)(2)(A), ELR STAT. FWPCA § 319(b)(2)(A).

218. See Robin Kundis Craig, Local or National? The Increasing Federalization of Nonpoint Source Pollution Regulation, 15 J. ENVTL. L. & LITIG. 184-91 (2000) (discussing the CWA nonpoint source program).

219. Pub. L. No. 101-508, § 6217, 104 Stat. 1388-314 (Nov. 5, 1990) (codified as 16 U.S.C. § 1455b, ELR STAT. CZMA § 306(b)).

220. Id.

221. Id. § 1455(d)(16), ELR STAT. CZMA § 306(d)(16).

222. The CZMA defines the "coastal zone" to be "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 on the several coastal states . . . ." 16 U.S.C. § 1453(1), ELR STAT. CZMA § 304(1) (emphasis added). While the zone extends "seaward to the outer limit of state title and ownership under the Submerged Lands Act," "the zone extends inland from the shoreline only to the extent necessary to control shorelands, the uses of which have a direct and significant impact on the coastal waters, and to control those geographical areas which are likely to be affected by or vulnerable to sea level rise." Id. (emphasis added).

223. 42 U.S.C. §§ 7401-7671q, ELR STAT. CAA §§ 101-618 (Clean Air Act). For a further discussion of the Act, see David M. Driesen, Sustainable Development and Air Quality: The Need to Replace Basic Technologies With Cleaner Alternatives, 32 ELR (forthcoming 2002).

224. 42 U.S.C. §§ 7651-7651o, ELR STAT. CAA §§ 401-416, as added by Pub. L. No. 101-549, 104 Stat. 2584 (Nov. 15, 1990).

225. Id. § 7651(b), ELR STAT. CAA § 401.

226. OFFICE OF WATER, U.S. EPA, supra note 121, at x.

227. Debra Scholz et al., Managing Oil Spills and Chemical Materials: Introduction, in NOAA, STATE OF THE COAST REPORT (1998), available at http://state-of-coast.noaa.gov/bulletins/html/hms_15/intro.html (last visited July 30, 2001).

228. Pub. L. No. 104-106, 110 Stat 186 (Feb. 10, 1996).

229. Id. § 303(b), 110 Stat. 254-58 (Feb. 10, 1996).

230. 64 Fed. Reg. 25125 (May 10, 1999). Phase II standards are currently underway. U.S. Department of Defense, EPA & U.S. Coast Guard, Uniform National Discharge Standards: Timeline, at http://unds.bah.com/History.htm (last visited July 30, 2001).

231. Office of Water, U.S. EPA, Clean Water Act Section 403 Report to Congress: Phase II—Point Source Discharges Inside the Baseline (1995), at http://www.epa.gov/owow/oceans/cwa403ph2/cwa403_3.html (last modified July 5, 1995).

232. SVARNEY & BARNES-SVARNEY, supra note 1, at 431.

233. M.J. Hameedi et al., Sediment Toxicity: National Picture, in NOAA, STATE OF THE COAST REPORT (1998), available at http://state-of-coast.noaa.gov/bulletins/html/sed_15/national.html (last visited July 30, 2001).

234. OFFICE OF WATER, U.S. EPA, supra note 121, at x.

235. Id.

236. The Majority of Great Whale Species Remain Endangered or Vulnerable (Due to Industrial Chemicals and Pesticide Run-Offs), PESTICIDE & TOXIC CHEM. NEWS, July 16, 2001, at 5; Marla Cone, A Disturbing Whale Watch in Northwest Washington—Area Orcas, Riddled With Toxic PCBs, May Be Headed for Endangered Species List, LOS ANGELES TIMES, Feb. 16, 2001, at A1.

237. OFFICE OF WATER, U.S. EPA, supra note 121, at x.

238. See 59 Fed. Reg. 18688, 18688 (Apr. 19, 1994) (announcing policy); 66 Fed. Reg. 364 (Jan. 3, 2001) (announcing guidance).

239. 64 Fed. Reg. 68852, 68852 (Dec. 8, 1999); id. at 68722. EPA's home page for the Phase II NPDES Storm Water Program is located at http://cfpub.epa.gov/npdes/stormwater/swphase2.cfm?program_id=6.

240. NOAA & U.S. EPA, Final Administrative Changes to the Coastal Nonpoint Pollution Control Program Guidance for Section 6217 of the Coastal Zone Act Reauthorization Amendments of 1990 (CZARA), at http://www.ocrm.nos.noaa.gov/czm/6217/admin_changes.html (last modified July 29, 2001).

241. Office of Ocean & Coastal Resource Management, NOAA, Coastal Nonpoint Pollution Control Program, at http://www.ocrm.nos.noaa.gov/czm/6217/ (last modified July 29, 2001).

242. United Nations Commission on Sustainable Development, supra note 60.

243. United Nations Global Programme of Action for the Protection of the Marine Environment From Land-Based Activities, Nov. 3, 1995, PP4-13, 18.

244. Id. PP94-154.

245. United Nations Commission on Sustainable Development, supra note 60.

246. CAROL BROWNER & DAN GLICKMAN, CLEAN WATER ACTION PLAN: RESTORING AND PROTECTING AMERICA'S WATERS (1998), available at http://www.cleanwater.gov/action/cwap.pdf.

247. Carol Browner & Dan Glickman, Clean Water Action Plan: Clean Water Successes and Challenges, at http://www.cleanwater.gov/action/cla.html (last modified Aug. 10, 1998).

248. Carol Browner & Dan Glickman, Clean Water Action Plan: Introduction, at http://www.cleanwater.gov/action/intro.html (last modified Aug. 10, 1998).

249. K.L. Bushaw-Newton & K.G. Sellner, Harmful Algal Blooms: National Picture, in NOAA, STATE OF THE COAST REPORT (1998), available at http://state-of-coast.noaa.gov/bulletins/html/hab_14/national.html (last visited July 30, 2001).

250. Id.

n251 See Associated Press, Toxin Might Hurt Endangered Whales, Jan. 13, 2001, available at WL 3652461, at *1 (describing how toxins from an algal bloom could harm blue whales and humpback whales); Associated Press, Dolphins' Deaths Caused by Toxic Algae, Scientists Say, MIAMI HERALD, Jan. 12, 2000, available at 2000 WL 9313544, at *1 (tracing the deaths of 10,000 dolphins to a harmful algal blooms).

252. At least three hypoxic zones have been discovered on the West Coast, four more have been identified on the East Coast, and hypoxic zones are expected to double in the next decade. Josie Glausiusz, Dead Zones, DISCOVER, Mar. 2000, at 22. See also Nancy N. Rabelais, Oxygen Depletion in Coastal Waters: National Picture, in NOAA, STATE OF THE COAST REPORT (1998), available at http://state-of-coast.noaa.gov/bulletins/html/hyp_09/national.html (last visited July 30, 2001) (reporting oxygen depletion in 52% of major estuaries, although information is too sparse to accurately gauge trends). Moderate to high eutrophic conditions were recently reported for 65% of the nation's estuaries, CHRIS CLEMENT ET AL., EUTROPHIC CONDITIONS IN ESTUARINE WATERS, update to NOAA, STATE OF THE COAST REPORT (2001), available at http://state-of-coast.noaa.gov/bulletins/html/eut_18/eut.html (last visited July 30, 2001), and eutrophic status is expected to worsen for 60% of monitored estuaries. NOAA, Executive Summary: Trends in U.S. Coastal Regions, 1970-1998, at http://state-of-coast.noaa.gov/natdialog/coastal_trends/exesummary.html (last modified Nov. 14, 2000).

253. OFFICE OF WATER, U.S. EPA, supra note 121, at 28.

254. See 33 U.S.C. § 1312(a), ELR STAT. FWPCA § 302(a) (requiring EPA to set water quality-based effluent limitations when its standards effluent limitations are insufficient to achieve and maintain the desired water quality in a given water body); see also id. § 1313(d)(1)(A), (C), ELR STAT. FWPCA § 303(d)(1)(A), (C) (requiring states to set total maximum daily loads (TMDLs) for any waters where effluent limitations "are not stringent enough to implement any water quality standard applicable to such waters").

255. U.S. EPA, OCEAN DISCHARGE CRITERIA: REVISIONS TO THE OCEAN DISCHARGE CRITERIA REGULATIONS 10, 11 (2001), available at http://www.epa.gov/owow/oceans/protecting_oceans/cwa403rule.pdf. For a more detailed discussion of the proposed rules, including their potential legal problems, see Kundis Craig & Miller, supra note 61, at 29-36.

256. 45 Fed. Reg. 65953 (Oct. 3, 1980), codified at 40 C.F.R. §§ 125.120 to 125.124 (2000).

257. OCEAN DISCHARGE CRITERIA, supra note 255, at 1 (citing President Bush's "Regulatory Review Plan," 66 Fed. Reg. 7701 (Jan. 24, 2001)); Office of Water, U.S. EPA, Protecting Our Beaches, Oceans, and Coasts: Ocean Discharge Criteria, at http://www.epa.gov/owow/oceans/protecting_oceans/ (last modified Feb. 23, 2001).

258. EPA planned to propose the new rules in October 2001, with final rules to be issued in July 2002. 66 Fed. Reg. 26254, 26257 (May 14, 2001). However, as of December 2001, it had not proposed the new ocean discharge criteria.

259. 65 Fed. Reg. 41065, 41065 (July 3, 2000).

260. Id.

261. See OFFICE OF WATER, U.S. EPA, AIR-WATER WORK PLAN 27-33 (2001), available at http://www.epa.gov/owow/oceans/airdep/airwater_plan16.pdf.

262. Kundis Craig, supra note 218, at 184-98, especially nn. 34-35, 49-50, 88-90, 97, 103 & accompanying text.

263. Id.

264. See id. at 231-32 (describing this recommendation at greater length).

265. Id. at 218-21, 232-33 (discussing a similar proposition).

267. See 33 U.S.C. §§ 1341(a)(2), ELR STAT. FWPCA § 401(a)(2) (allowing downstream states to condition federally permitted activities in an upstream state when those activities will affect the downstream state's water quality); id. § 1342(b)(5), (d)(2), ELR STAT. FWPCA § 402(b)(5), (d)(2) (requiring state-issued NPDES permits to address water quality issues in downstream states and giving EPA the authority to object to any such state-issued permit).

268. See Kundis Craig & Miller, supra note 61, at 36-49.

269. WORLD COMM'N ON PROTECTED AREAS, supra note 26, at xv.

270. SVARNEY & BARNES-SVARNEY, supra note 1, at 306.

271. UNCED, supra note 15, at Agenda 21, § 17.44.

272. Id. § 17.45.

273. Id.

274. Id.

275. Id. § 17.46.

276. Id. §§ 17.46(c) (fishing technology to reduce waste); 17.50 (ensure that fishing activities minimize incidental catch); 17.53 (prohibit dynamiting, poisoning, and other destructive fishing practices); 17.55 (reduce wastage and post-harvest discards and improve processing).

277. Id. §§ 17.46(d) (ensure effective monitoring); 17.51 (monitor and control fishing activities by vessels flying nation's flag); 17.52 (deter deflagging); 17.67 ("cooperate todevelop or upgrade systems and institutional structures for monitoring, control and surveillance").

278. Id. § 17.46(a).

279. Id. § 17.46(b).

280. Id. § 17.46(e).

281. Id. § 17.47; see also id. § 17.61 (nations recognize the responsibility and authority of the International Whaling Commission "for the conservation and management of whale stocks and the regulation of whaling pursuant to the 1946 International Convention for the Regulation of Whaling" and the work of other organizations "in the conservation, management and study of cetaceans and other marine mammals"); 17.62 ("States should cooperate for the conservation, management and study of cetaceans.").

282. Id. § 17.46(f).

283. Id. § 17.49.

284. Id. §§ 17.54 ("States should fully implement General Assembly resolution 46/215 on large-scale pelagic drift-net fishing."); 17.61(a) (nations recognize the 1946 International Convention for the Regulation of Whaling).

285. INTERNATIONAL FISHERIES DIV., NOAA, INTERNATIONAL AGREEMENTS CONCERNING LIVING MARINE RESOURCES OF INTEREST TO NOAA FISHERIES (2001), available at http://www.nmfs.noaa.gov/sfa/international/2001int%27lagrmts_up.htm (last visited Dec. 16, 2001).

286. Fisheries-related international agreements include: Convention for the Establishment of an Inter-American Tropical Tuna Commission (1949), implemented through the Tuna Conventions Act of 1950, 16 U.S.C. §§ 951-961; Convention for the Preservation of the Halibut Fishery of the Northern Pacific Ocean and Bering Sea (1953), implemented through the Northern Pacific Halibut Act of 1982, 16 U.S.C. §§ 773-773k; International Convention for the Conservation of Atlantic Tunas (1966), implemented through the Atlantic Tunas Convention Act, 16 U.S.C. § 971; United States-Morocco Fisheries Cooperation (1975); Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries (1979), implemented through the Northwest Atlantic Fisheries Convention Act of 1995, 16 U.S.C. §§ 5601-5612; United States-China Marine and Fisheries Science and Technology Protocol (1979); Convention for the Conservation of Salmon in the North Atlantic Ocean (1982), implemented through the Atlantic Salmon Conservation Act of 1982, 16 U.S.C. § 3601; Treaty Between the Government of the United States and the Government of Canada on Pacific Coast Albacore Tuna Vessels and Port Privileges (1982), implementing legislation still in preparation; United States-Mexico Fisheries Cooperation Program (1983); Treaty Between the Government of the United States of America and the Government of Canada Concerning Pacific Salmon (1985), implemented through the Pacific Salmon Treaty Act of 1985, 16 U.S.C. § 3631; Treaty on Fisheries Between the Governments of Certain Pacific Island States and the Government of the United States (South Pacific Tuna Treaty, 1988), implemented through the South Pacific Tuna Act of 1988, 16 U.S.C. §§ 973-973r (1994); Agreement Between the Government of the United States of America and the Government of the Union of Soviet Socialist Republics on Mutual Fisheries Relations (1988), implemented through an unnamed act, Pub. L. No. 100-629 (Nov. 7, 1988); United States-Korea Science and Technology Agreement (1988); Agreement Between the Government of the United States of America and the Government of Canada on Fisheries Enforcement (1990); Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean (1992), implemented through the North Pacific Anadromous Stocks Act of 1992, 16 U.S.C. §§ 5001-5012; United States-Japan Consultative Committee on Fisheries (1992). INTERNATIONAL FISHERIES DIV., NOAA, supra note 285. In addition, the United States has long-term fisheries cooperative programs with France and South Africa. Id.

287. Id.

288. UNCED, supra note 15, at Agenda 21, § 17.61.

289. WORLD COMM'N ON PROTECTED AREAS, supra note 26, at 8, Box 1.1.

290. INTERNATIONAL FISHERIES DIV., NOAA, supra note 285.

291. 16 U.S.C. §§ 1361-1421h, 1372(f), ELR STAT. MMPA, §§ 2-409, 102(f).

292. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

293. Convention on International Trade in Endangered Species of Wild Fauna and Flora, Mar. 3, 1973 (entered into force July 1, 1975), United States/worldwide, 27 U.S.T. 1087.

294. 16 U.S.C. §§ 1531(a)(4)(D), (E), (F), 1537a, ELR STAT. ESA §§ 2(a)(4)(D), (E), (F), 8A; International Convention for the High Seas Fisheries of the North Pacific Ocean, May 9, 1952 (entered into force June 12, 1953), United States-Canada-Japan. The Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, Oct. 24, 1978, Canada-Cuba-EEC-GDR-Iceland-Norway-USSR, came into force on January 1, 1979, and replaced the 1949 International Convention for the Northwest Atlantic Fisheries. Northwest Atlantic Fisheries Organization (NAFO), Introduction, at http://www.nafo.ca/about/convention.htm (last visited Dec. 16, 2001). The United States ratified the 1952 convention on November 29, 1995. NAFO, Parties, at http://www.nafo.ca/about/parties.htm (last visited Dec. 16, 2001).

n295 Jiji Press English News Service, U.S. Renews Opposition to Japan's Research Whaling, Aug. 10, 2001, available at WL 26436406, at *1; Julia Levy, U.S. and Canada—Resolution on Whaling, FIN. TIMES, June 27, 2001, available at 2001 WL 24309403, at *1.

296. See generally 16 U.S.C. § 1371(a)(2), ELR STAT. MMPA § 101(a)(2) (provisions of the Marine Protection Act forbidding import of tuna caught by means that could harm dolphins); Earth Island Inst. v. Mosbacher, 746 F. Supp. 964, 21 ELR 20259 (N.D. Cal. 1990), aff'd, 929 F.2d 1449, 21 ELR 20843 (9th Cir. 1991) (successful lawsuit to enforce those provisions); GATT: Dispute Settlement Panel, Report on United States Restrictions on Imports of Tuna (1994), reprinted in 33 I.L.M. 839 (1994) (Mexico's successful GATT challenge against the restrictions); 16 U.S.C. § 1537 note, ELR STAT. ESA § 8 note (ESA provision banning shrimp caught by means that can harm sea turtles); Earth Island Inst. v. Christopher, 913 F. Supp. 559 (Ct. Int'l Trade 1995) (successful suit to enforce the ESA's requirements); WTO, Report of the Panel, United States Import Prohibition of Certain Shrimp and Shrimp Products (WT/DS58) (May 15, 1998) (successful General Agreement on Tariffs and Trade challenge to the shrimp-turtle requirements).

297. United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Sept. 8, 1995, United Nations, A/CONF.163/37, available at http://www.un.org/Depts/los/convention_agreements/texts/fish_stocks_agreement/A_CONF.164_37_English.pdf.

298. Division for Ocean Affairs & the Law of the Sea, United Nations, Overview, at http://www.un.org/Depts/los/convention_agreements/convention_overview_fish_stocks.htm (last modified Dec. 12, 2001).

299. United Nations Agreement for the Implementation of the Provisions of the United Nations Convention on the Law of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks, Aug. 4, 1995, art. 1.

300. Id. art. 2.

301. Id. art. 5(a), (c).

302. Id. art. 6(1); see also Annex II (Guidelines for the Application of Precautionary Reference Points in Conservation and Management of Straddling Fish Stocks and Highly Migratory Fish Stocks).

303. Id. art. 14(1).

304. Id. art. 18.

305. See NATIONAL MARINE FISHERIES SERVICE, NOAA, IMPLEMENTATION PLAN FOR THE CODE OF CONDUCT FOR RESPONSIBLE FISHERIES (1997), available at http://www.nmfs.noaa.gov/sfa/international/code%20of%20conduct%20plan.htm (last visited Nov. 14, 2001).

306. The U.S. implementation proceeds "from a fundamental assumption: that NMFS [National Marine Fisheries Service, which implements U.S. fishing policies], through its legislative mandates, strategic plan and programmatic activities, seeks to achieve practically all the same goals, or at least make significant and measurable progress toward them, as the Code." Id.

307. Convention on the Conservation and Management of Pollock Resources in the Central Bering Sea, June 16, 1994 (entered into force Dec. 8, 1995), China-Japan-Korea-Poland-Russia-United States, at http://www.oceanlaw.net/texts/bering.htm.

308. International Fisheries Div., NOAA, International Agreements Concerning Living Marine Resources of Interest to NOAA Fisheries (2001), at http://www.nmfs.noaa.gov/sfa/international/2001int%271 agrmts_up.htm (last visited Aug. 7, 2001).

309. Id.

310. NOAA, U.S. DEP'T OF COMMERCE, OUR LIVING OCEANS: REPORT ON THE STATUS OF U.S. LIVING MARINE RESOURCES 33, tbl. 12 (1999).

311. Id. at 194, tbl. 18-1.

312. Id. at 199.

313. Id. at 194, tbl. 18-1.

314. Id. at 119.

315. Id.

316. Id.

317. Id. at 31, tbl. 11.

318. Id. at 33, tbl. 12. Harvests of white marlin increased 511%, from 262 metric tons in 1992 to 1,600 metric tons in 1999; blue marlin harvest increased 278%, from 1,086 metric tons in 1992 to 4,100 metric tons in 1999; and bigeye tuna harvest increased 59%, from 63,233 metric tons in 1992 to 100,700 metric tons in 1999. Id. at 36, tbl. 14.

319. Id. at 119.

320. NMFS, NOAA, STOCK ASSESSMENT AND FISHERY EVALUATION FOR ATLANTIC HIGHLY MIGRATORY SPECIES (2001), available at http://www.nmfs.noaa.gov/sfa/hms/Safe_Report/Safe_1.PDF.

321. Id. at i.

322. Id. at iii.

323. Id. at iii-iv.

324. Id. at I-3.

325. Id. at I-5.

326. Id. at I-3.

327. Id. at I-2.

328. Id. at I-4.

329. Id.

330. Id. At the last meeting, quotas for the western stock were retained to implement this program, but the United States criticized the International Commission for the Conservation of Atlantic Tunas for setting eastern stock quotas at a level that allows the stock to be overfished internationally.

331. Jackson et al., supra note 25, at 635.

332. UNCED, supra note 15, at Agenda 21, § 17.69.

333. Id.

334. Id. § 17.70.

335. A.M. Shimada et al., Populations of Harvested Fishes and Invertebrates: Introduction, in NOAA, STATE OF THE COAST REPORT (1998), available at http://state-of-coast.noaa.gov/bulletins/html/lmr_07/intro.html (last visited July 30, 2001).

336. UNCED, supra note 15, at Agenda 21, § 17.70.

337. See id. § 17.74(a) ("develop and increase the potential of marine living resources to meet human nutritional needs"); id. § 17.74(c) ("maintain or restore populations of marine species at levels that can produce maximum sustainable yield"); id. § 17.79(g) ("enhance the productivity and utilization of their living marine resources for food and income"); id. § 17.81 (support artisanal fisheries); id. § 17.87(a) (financial and technical cooperation to enhance developing countries' fisheries); id. § 17.87(d) ("promote seafood quality, including through national quality assurance systems for seafood, in order to promote access to markets, improve consumer confidence and maximize economic returns"); id. § 17.92(b) (transfer information and technologies to fishing communities at the local level); id. § 17.94(b) (provide support to local fishing communities); id. § 17.94(c) ("establish sustainable aquaculture development strategies").

338. See id. § 17.74(d) (promote "selective fishing gear and practices that minimize waste in the catch of target species and minimize by-catch of non-target species"); id. § 17.79(c) (promote mariculture, aquaculture, and small-scale fisheries); id. § 17.79(e) ("take measures to increase the availability of marine living resources as human food by reducing wastage, post-harvest losses and discards, and improving techniques of processing, distribution, and transportation"); id. § 17.84 ("prohibit dynamiting, poisoning, and other comparable destructive fishing practices"); id. § 17.87(b) ("promote the contribution of marine living resources to eliminate malnutrition and to achieve food self-sufficiency in developing countries, inter alia, by minimizing post-harvest losses and managing stocks for guaranteed sustainable yields."); id. § 17.89(c) ("develop agreed criteria for the use of selective fishing gear and practices to minimize waste in the catch of target species and minimize by-catch of non-target species").

339. Id. § 17.70.

340. Id. § 17.71.

341. Id. § 17.72. See also id. § 17.74(f) (nations should "preserve rare or fragile ecosystems, as well as habitats and other ecologically sensitive areas").

342. Id. § 17.74(e).

343. Id. § 17.75; see also id. § 17.89 (recognizing the authority of the International Whaling Commission); id. § 17.90 ("States should cooperate for the conservation, management and study of cetaceans.").

344. Id. §§ 17.69, 17.77, 17.78.

345. Id. § 17.79(b).

346. Id. § 17.79(d).

347. Id. § 17.85.

348. Id.

349. Id.

350. 16 U.S.C. §§ 1801-1882.

351. Id. §1801(a)(6).

352. Id. § 1801(a)(7).

353. Id. § 1811.

354. Id. §§ 1802(6), 1856(a). The federal government can take over management of fisheries within a state's three-mile zone if the fishery is predominantly an EEZ fishery and state regulation (or lack thereof) substantially interferes with the federal management plan for that fishery. Id. § 1856(b). In addition, the Magnuson-Stevens Act limits foreign fishing in the states' waters. Id. § 1856(c).

355. Shimada et al., supra note 335.

356. 16 U.S.C. § 1852(a). The eight Fishery Management Councils are for New England (Maine to Connecticut), the Mid-Atlantic (New York to Virginia), the South Atlantic (North Carolina to Florida), the Caribbean, the Gulf, the Pacific (California, Idaho, Oregon, and Washington), the North Pacific (primarily Alaska and the Bering Sea), and the Western Pacific (Hawaii and U.S. Pacific territories). Id.

357. Id. § 1853.

358. Id. § 1851(a)(1)-(7).

359. Id. § 1851(a)(1).

360. Id. § 1802(21).

361. Pub. L. No. 104-297, 110 Stat. 3559-3621 (Oct. 11, 1996).

362. 16 U.S.C. § 1802(28)(C), as added by Pub. L. No. 104-297, § 102, 110 Stat. 3560 (Oct. 11, 1996).

363. Id. § 1802(29), as added by Pub. L. No. 104-297, § 102, 110 Stat. 3560 (Oct. 11, 1996).

364. See id. § 1851(a)(9) (a new national standard requiring conservation and management measures, "to the extent practicable," to minimize bycatch and the mortality of bycatch); id. § 1853(a)(11) (requiring standardized reporting to reduce bycatch and bycatch mortality); id. § 1853(a)(7) (requiring FMPs to identify essential fish habitat and minimize degradation of that habitat through fishing).

365. See 50 C.F.R. § 600.350(d)(ii) ("The Councils should adhere to the precautionary approach . . . when faced with uncertainty concerning any of the factors" regarding bycatch and bycatch mortality).

366. Victor R. Restrepo et al., The Precautionary Approach: A New Paradigm or Business as Usual?, in NMFS, NOAA, OUR LIVING OCEANS: REPORT ON THE STATUS OF U.S. LIVING MARINE RESOURCES 69 (1999).

367. Id.

368. THE H. JOHN HEINZ III CENTER FOR SCIENCE, ECONOMICS, AND THE ENVIRONMENT, supra note 20, at 17.

369. INTERNATIONAL CENTRE FOR TRADE & SUSTAINABLE DEVELOPMENT, FISH FOR THOUGHT: FISHERIES, TRADE, AND SUSTAINABLE DEVELOPMENT 7 (1999).

370. 16 U.S.C. § 1851(a)(1), (3).

371. WESTERN PACIFIC REGIONAL FISHERY MANAGEMENT COUNCIL, DRAFT: FISHERY MANAGEMENT PLAN FOR CORAL REEF ECOSYSTEMS OF THE WESTERN PACIFIC REGION, Vols. I-III (2000).

372. See id., Executive Summary, Vol. I, at 1.

373. Id. It should be noted, however, that many Hawaiians consider this management plan to be fundamentally flawed as a means of protecting the newly created Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve. ENVIRONMENTAL DEFENSE, NORTHWESTERN HAWAIAAN ISLANDS FACT SHEET 3 (2001), available at http://www.kahea.org (last visited Nov. 13, 2001).

374. INTERNATIONAL CENTRE FOR TRADE & SUSTAINABLE DEVELOPMENT, supra note 369, at 7.

375. HARRIS, supra note 22, at 346-48.

376. NOAA, supra note 310, at 41.

377. THE H. JOHN HEINZ III CENTER FOR SCIENCE, ECONOMICS, AND THE ENVIRONMENT, supra note 20, at 15.

378. Id.

379. Stephen K. Brown et al., Ecological Effects of Fishing: National Picture, in NOAA, STATE OF THE COAST REPORT (1998), available at http://state-of-coast.noaa.gov/bulletins/html/ief_03/national.html (last visited July 30, 2001).

380. NMFS, NOAA, supra note 366, at 31, tbl. 11.

381. Id.

382. Id.

383. Id. Three of these species in the "unknown" category were determined to be overutilized, eight fully utilized, and three underutilized. Id.

384. Id. at 7.

385. Id. at 32.

386. Id.

387. Id. at 35.

388. Id. at 41.

389. Id.

390. Id. at 45.

391. Id. at 41.

392. Brown et al., supra note 379.

393. Id. at tbl. 3.

394. Id.

395. Id.

396. C.E. Alexander, Classified Shellfish Growing Waters, in NOAA, STATE OF THE COAST REPORT (1998), available at http://state-of-coast.noaa.gov/bulletins/html/sgw_04/national.html (visited July 30, 2001).

397. Id.

398. See also Millhouser et al., supra note 134.

399. Shimada et al., supra note 335. "The unknown category includes newly developed fisheries for sea urchins, squids, and other lesser known invertebrates." Id.

400. 16 U.S.C. §§ 1361-1421h, ELR STAT. MMPA §§ 2-409.

401. Id. § 1371, ELR STAT. MMPA § 101.

402. Id. § 1372(a), ELR STAT. MMPA § 102(a).

403. Id. § 1362(1), ELR STAT. MMPA § 2(1). A marine mammal's "optimum sustainable population" is "the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element." Id. § 1362(9), ELR STAT. MMPA § 2(9).

404. See, e.g., id. § 1371(a)(3)(B), ELR STAT. MMPA § 101(a)(3)(B).

405. 16 U.S.C. §§ 1531-1544, ELR STAT. ESA §§ 2-18.

406. Id. § 1538(a), ELR STAT. ESA § 9(a).

407. Id. § 1538(a)(1)(B), (C), ELR STAT. ESA § 9(a)(1)(B), (C), Congress has not amended the ESA to reflect the more complex ocean zoning that has evolved since 1973.

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

409. Pub. L. No. 103-238, 108 Stat. 532 (Apr. 30, 1994).

410. 16 U.S.C. § 1386, ELR STAT. MMPA § 117.

411. Id. § 1387, ELR STAT. MMPA § 118.

412. Shimada et al., supra note 335.

413. NMFS, NOAA, supra note 366, at 37.

414. In 1992, NOAA considered 23 marine species endangered, 50 C.F.R. § 222.23(a), and 8 threatened. Id. § 227.4. In 2000, in contrast, it lists 30 species as endangered, 50 C.F.R. § 224.101, and 28 species as threatened. Id. § 223.102.

415. NMFS, NOAA, supra note 366, at 28.

416. Id. at 7.

417. Id. at 28.

418. Id. at 29.

419. Id. at 38.

420. Id.

421. Id. at 29.

422. Id. at 39.

423. Id.

424. Id.

425. Id.

426. WORLD COMM'N ON PROTECTED AREAS, supra note 26, at xvi.

427. Id.

428. Id. at xvi-xvii.

429. Id. at xvii.

430. Id. at xvii, Box 2.

431. 16 U.S.C. §§ 1431-1445b.

432. Id. § 1433(a).

433. Id. § 1436.

434. NOAA, National Marine Sanctuaries Home Page, at http://www.sanctuaries.nos.noaa.gov/oms/oms.html (last modified Aug. 5, 2001).

435. Intent to Designate Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve as a National Marine Sanctuary, 66 Fed. Reg. 36259 (Jan. 19, 2001).

436. The National Park Service Organic Act, 16 U.S.C. §§ 1-3, allows the Secretary to establish national parks for "the common benefit of all the people of the United States," if the proposed park meets criteria of national significance, suitability, and feasibility. Id. §§ 1a-1, 1a-5(b)(2)(A), (B). Under the National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. §§ 668dd-668ee, the Secretary administers "a national network of land 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." Id. § 668dd(a)(2).

437. See NOAA, Status of Inventory, at http://www.mpa.gov/mpaservices/inv_status/status_inv.html (last modified Aug. 5, 2001) (noting that only the MPAs in Maine and Massachusetts had been inventoried as of August 2001).

438. See Millhouser et al., supra note 134.

The public trust doctrine (PTD) gives many common property resources and uses special treatment. Derived from Roman civil law, English common law, American colonial law, state law, federal law and the courts, the PTD provides that states hold in trust for public benefit their navigable waters, the lands beneath them and the living resources dwelling in them, and that the public has a right to use an enjoy these waters, lands and resources for a wide variety of uses . . . . The protection of public beaches and the development of stateowned submerged lands for energy, transportation and marine recreation are responsibilities that arise under this doctrine.

Id.

439. Exec. Order No. 13158, 65 Fed. Reg. 34909 (May 26, 2000), ADMIN. MAT. 45128.

440. Id. §§ 2(a), 4.

441. NOAA, Statement by Secretary of Commerce Donald L. Evans Regarding Executive Order 13158, Marine Protected Areas (June 4, 2001), at http://www.mpa.gov/frontmatter/supl_eo.html#evans (last visited Dec. 16, 2001).

442. NOAA, Status of Inventory, at http://www.mpa.gov/mpaservices/inv_status/status_inv.html (last modified Dec. 16, 2001).

443. Pub. L. No. 106-513, 114 Stat. 2381 (Nov. 13, 2000).

444. Id. § 6(f), 114 Stat. 2385. However, Congress did fund the program through 2005. Id. § 10, 114 Stat. 2390-91. Moreover, it exempted the already proposed Thunder Bay National Marine Sanctuary (in the Great Lakes) and a new Northwestern Hawaiian Islands National Marine Sanctuary from this fiscal restriction, id., giving the president authority to designate a Northwestern Hawaiian Islands Coral Reef Reserve, and, if he did, giving the Secretary of Commerce to designate that reserve as a National Marine Sanctuary. Id. § 6(g)(1), (2)(A), 114 Stat. 2385-86. On December 4, 2000, through Executive Order No. 13178, President Clinton designated the reserve, and the reserve has been proposed as a National Marine Sanctuary. 66 Fed. Reg. 36259, 36259 (Jan. 19, 2001).

445. Robin Kundis Craig, The Coral Reef Task Force: Protecting the Environment Through Executive Order, 30 ELR 10343, 10343 (May 2000) (citing U.S. Coral Reef Task Force, Figure I: DOI Holdings With Coral Reefs, in CORAL REEF TASK FORCE, PROTECTING CORAL REEFS: BUILDING ON THE YEAR OF THE OCEAN, at http://coralreef.gov/DOI.PNCR/figure1.html (last visited Mar. 8, 2000)). See also Steven L. Miller & Michael P. Crosby, The Extent and Condition of U.S. Coral Reefs, in NOAA, STATE OF THE COAST REPORT (1998), available at http://state-of-coast.noaa.gov/bulletins/html/crf_08/crf.html (last visited July 30, 2001).

446. Gayle Grant, International Coral Reef Initiative, 8 GEO. INT'L ENVTL. L. REV. 491, 492 (1996).

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

448. See Kundis Craig, supra note 445, at 10346-47.

449. Pub. L. No. 106-562, §§ 201-210, 114 Stat. 2798-806 (Dec. 23, 2000).

450. Id. § 203, 114 Stat. 2800-01.

451. Id. § 204, 114 Stat. 2801-03.

452. Id. § 206, 114 Stat. 2804.

453. Id. § 207, 114 Stat. 2805.

454. Id. § 209, 114 Stat. 2805.

455. Jackson et al., supra note 25, at 629.

456. Id. at 635.

457. Id.

458. Id. (emphasis added; citations omitted).

459. Id.

460. United Nations Commission on Sustainable Development, supra note 60.

461. NATIONAL RESOURCES MANAGEMENT & PROTECTION TASK FORCE, PRESIDENT'S COUNCIL ON SUSTAINABLE DEVELOPMENT, NATURAL RESOURCES MANAGEMENT AND PROTECTION TASK FORCE REPORT 24-27, 53 (1998).

462. Id. at 34-37. Restoring the fisheries did include restoring 2,000 square miles of estuaries by 2000 and 3,000 square miles of estuaries by 2010. Id. at 36. However, the larger goals were 20,000 river miles and 1.5 million acres of lakes by 2000 and 30,000 river miles and 3.0 million acres of lakes by 2010. Id.

463. See generally PRESIDENT'S COUNCIL ON SUSTAINABLE DEVELOPMENT, TOWARDS A SUSTAINABLE AMERICAN: ADVANCING PROSPERITY, OPPORTUNITY, AND A HEALTHY ENVIRONMENT FOR THE 21ST CENTURY (1999).

464. Pub. L. No. 106-256, 114 Stat. 644 (Aug. 7, 2000).

465. Id. § 2.

466. Id.

467. Id. § 3(b)(1).

n468 Presidential Ocean Commission Panelists Named, ASCRIBE NEWS, June 18, 2001, available at 2001 WL 2887530, at *1.

469. See Pub. L. No. 106-256, § 3(f), 114 Stat. 644 (Aug. 7, 2000) (requiring the commission to submit its report within 18 months of being constituted).

470. Id. § 4(a) (requiring the president to submit such a policy within 120 days of receiving and considering the commission's report).

32 ELR 10190 | Environmental Law Reporter | copyright © 2002 | All rights reserved