8 ELR 50016 | Environmental Law Reporter | copyright © 1978 | All rights reserved

The Marine Sanctuaries Program: A Framework for Critical Areas Management in the Sea

Mr. Blumm (B.A. 1972, Williams College; J.D. 1976, L.L.M. in Natural Resources Law, to be awarded 1978, George Washington University) is a staff attorney for the U.S. Environmental Protection Agency. At the time this article was written, the author served as Assistant Director of Law, Center for Natural Areas.

Mr. Blumstein (B.A. 1975, University of Pennsylvania; J.D. expected 1978, George Washington University) is a legal assistant at the Center for Natural Areas.

The authors wish to acknowledge the assistance of their colleagues at the Center for Natural Areas: John Epting, David Laist, Stark Ackerman, and John Noble. The Center for Natural Areas is a non-profit research corporation specializing in environmental management from an interdisciplinary perspective.

[8 ELR 50016]

The search for a viable national policy toward the marine environment has been an elusive one. For more than a decade Congress has been calling for a "balanced" and "comprehensive" approach to the management of the nation's marine resources.¹ As attempts continue in the 95th Congress to elucidate and implement such a national policy,² a nearly forgotten federal program is rising like a phoenix from the ashes of bureaucratic obscurity to play a potentially prominent role in assuring that the nation's approach to its marine resources is both comprehensive and balanced. Established over five years ago by Title III of the Marine Protection, Research and Sanctuaries Act of 1972 (MPRSA),³ but largely ignored until the recent recognition given to it by President Carter in his Environmental Message,⁴ the Department of Commerce's marine sanctuaries program provides a means of comprehensively managing marine activities by designating and assuring the protection of marine areas of environmental value.

Of course, Title III of the MPRSA is not the only congressional initiative aimed at controlling the allocation of marine resources. Increasing competition for the utilization of these resources has precipitated a flurry of legislative activity in recent years. Perhaps the best starting point for understanding the potential of the marine sanctuaries program is to highlight this intensifying competition and the congressional reactions it has fostered. For example, the use of the marine environment as a national sink for the disposal of waste products, such as sewage sludge, industrial wastes, and dredge and fill materials,⁵ has resulted in the enactment of legislation designed to control marine pollution.⁶ Similarly, a growing dependence on the waters off the United States' coasts as a major source of the world's food supply⁷ led to an extension of the nation's jurisdiction over its offshore fisheries.⁸ Likewise, increasing exploitation of oil and gas reserves on the outer continental shelf⁹ prompted a complete [8 ELR 50017] reexamination of the federal government's mineral leasing system.¹⁰ And the anticipated reliance on the sea to support energy facilities, such as deepwater ports, liquified natural gas terminals, and floating nuclear power plants,¹¹ has led to federal studies and legislation aimed at providing for the efficient and safe siting of these facilities.¹²

While each of these legislative responses concerns a particularly pressing marine resource allocation problem, collectively they have not brought the nation perceptively closer to the establishment of a balanced and comprehensive approach to the protection and use of marine resources. Moreover, because these federal actions have primarily been reactions to initiatives proposed by private entities, they cannot plan for and manage marine activities in a positive manner, a crucial element in developing a viable national marine policy. The marine sanctuaries program, on the other hand, is not limited to regulating particular marine-related activities and thus has the potential to provide a critically needed positive link in the ongoing efforts to develop a balanced and comprehensive marine policy.

Under Title III of the MPRSA, areas of important conservation, recreation, ecological, or esthetic value in ocean, estuarine, or Great Lakes waters can be officially designated and managed to foster such values. While certain uses within these areas will be regulated, marine sanctuary designation does not serve to preclude all uses. Central to the program's potential role as an important link in the nation's efforts to formulate a balanced approach to marine management is its policy of permitting all uses compatible with a sanctuary's primary purpose.¹³ In short, the goal of the marine sanctuaries program is "to preserve and restore" marine areas rather than to build a wall around them.

Title III's broad legislative mandate to provide positive marine planning and management should enable the marine sanctuaries program to serve as a water-based counterpart to terrestrial reserves, such as national and state parks, forests, wildlife refuges, and wilderness areas. For over 100 years the nation has recognized the importance of preserving and protecting pristine and fragile areas of its public lands. Yet these efforts have been directed almost exclusively to areas above the high water mark of the oceans and Great Lakes, ignoring the more than 43 percent of the nation's public lands lying offshore.¹⁴ Consequently, the authority conferred by Title III can serve to extend seaward the umbrella of protection now provided to other areas of special natural or cultural value. Similarly, the marine sanctuaries program appears capable of complementing the ongoing efforts of coastal states to develop programs to better manage the land and water resources in their coastal zones.¹⁵

Thus, the marine sanctuaries program has the potential to fulfill many functions: from providing a positive planning element for federal programs designed to regulate marine developmental initiatives to extending seaward [8 ELR 50018] the protection afforded terrestrial reserves to complementing coastal zone planning efforts. The potential of the program is further enhanced by the unique role which it offers to members of the general public to shape the form and direction of the program.Unlike most other federal programs, which restrict the input of the public and other nongovernmental entities to reacting to preformulated proposals, Title III of the MPRSA encourages these groups to play an affirmative and aggressive role in its procedures. The principal avenue for such input is in the form of sanctuary nominations to which the Department of Commerce must respond. This opportunity to participate actively in the designation and protection of marine areas of natural and cultural significance makes the program an especially important one for the public to understand and monitor. One of the basic premises of this article is that the program's near dormancy during its first five years was a result, in large part, of a lack of significant public involvement. The absence of public outcry over the fact that the program has never been funded¹⁶ is only the most poignant testament to this thesis. Consequently, throughout this article special emphasis will be placed upon recommending mechanisms to facilitate effective public involvement. To this end changes in administrative procedures will be suggested where appropriate.

The remainder of the article is devoted to an examination of the marine sanctuaries program, its past, its present, and its potential. Section I explores the statute that created the program and its legislative history. Section II analyzes administrative efforts to implement the program. This analysis includes an examination of the program's operative guidelines and the sanctuaries which have been designated and nominated. Section III describes two recent events which have served both to increase the pace of program activity and alter the manner in which the program will be implemented in the future: the President's Environmental Message and an administrative reorganization within the Department of Commerce. Section IV then analyzes several key concepts which are critical to effective implementation of the program. Finally, section V summarizes the legislative and administrative changes needed to improve implementation of the program and postulates some potential effects that a fully implemented marine sanctuaries program may have on future efforts to plan for and manage marine resources.

I. Title III of the Marine Protection, Research and Sanctuaries Act

A. Legislative Background

The genesis of the legislation which established the marine sanctuaries program can be traced to the introduction of 11 bills in the House of Representatives in 1968. The bills were basically a reaction to the public outrage stemming from a series of incidents that resulted in the degradation of popular marine recreation areas. The most notable of these incidents were the dumping of nerve gas and oil wastes off the coast of Florida and the infamous Santa Barbara oil spill. These bills, which contemplated the establishment of marine sanctuaries off the coasts of California, Massachusetts, and New Hampshire, were directed in large measure at instituting moratoria on mineral exploration. Other purposes, however, were also recognized, as noted by the Virginia Institute of Marine Sciences:

Marine sanctuaries were proposed as a mechanism to attain a national balance of uses in the marine environment and ensuring compatibility of conflicting uses. Some witnesses advocated marine zoning to minimize conflicts between competing uses. The concept of sanctuaries as areas for studies of natural systems unencumbered by pollution was brought forward as was the concept of preserving marine areas so that scenic beauty, ocean recreation, and fishing activities could be perpetuated.¹⁷

But largely due to their emphasis on mineral exploration moratoria, these bills attacted potent industry opposition and were not even reported out of the House Merchant Marine and Fisheries Committee during the 90th Congress. While similar bills were introduced in the 91st Congress, only after the completion of the Council on Environmental Quality's study of ocean dumping¹⁸ was a marine sanctuaries provision reported by the House Committee. This provision was incorporated into H.R. 9727,¹⁹ a bill which also contemplated the regulation of ocean dumping.

In the House Report accompanying H.R. 9727 the House Merchant Marine and Fisheries Committee explained the purposes which the marine sanctuaries provision was designed to serve:

Title III deals with an issue which has been of great concern to the Committee for many years: the need to create a mechanism for protecting certain important areas of the coastal zone from intrusive activities by man. This need may stem from the desire to protect scenic resources, natural resources or living organisms: but it is not met by any legislation now on the books…. The pressures for development of marine resources are already great and increasing. It is never easy to resist these pressures and yet all recognize that there are times when we may risk sacrificing long-term values for short-term gains. The marine sanctuaries authorized by this bill would provide a means whereby important areas may be set aside for protection and may thus be insulated from the various types of "development" which can destroy them.²⁰

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After passage in the House on September 9, 1971, the Senate Commerce Committee considered H.R. 9727 and reported an amended bill on November 12, 1971.²¹ Twelve days after, on November 24, 1971, the Senate passed an amended version of the House bill which did not include an analog to Title III. As the Senate Commerce Committee's report explained, there were two reasons for this. First, while the Committee noted that the continental shelf was within the jurisdiction of the federal government,²² it believed that control over the superjacent water column outside the limits of the territorial sea²³ and the contiguous zone²⁴ was beyond the nation's jurisdiction.²⁵ The second reason given for the deletion of Title III was that the Committee believed that the reservation of certain continental shelf areas for special protection was already within the authority of the Secretary of the Interior under the Outer Continental Shelf Lands Act.²⁶ Nevertheless, while the Senate Commerce Committee did not agree with the approach adopted by the House, it was in full agreement with the concept of establishing marine sanctuaries:

The Committee believes that the establishment of marine sanctuaries is appropriate where it is desirable to set aside areas of the seabed and the superjacent waters for scientific study, to preserve unique, rare, or characteristic features of the oceans, coastal, and other waters, and their total ecosystems. In this we agree with members of the House of Representatives. Particularly, with respect to scientific investigation, marine sanctuaries would permit baseline ecological studies that would yield greater knowledge of these preserved areas both in their natural state and in their altered state as natural and manmade phenomena effected change.²⁷

To resolve the differences between the House and Senate versions of H.R. 9727, a Conference Committee was convened. It was not until October 9, 1972, that the Conference Committee was able to arrive at a compromise bill which included a Title III almost identical to that passed by the House, except for certain modifications regarding the Title's applicability to foreign citizens.²⁸ When signed into law on October 23, 1972,²⁹ over 13 months after it originally passed the [8 ELR 50020] House, Title III of the MPRSA became the first, and to date remains the only broad-based, comprehensive federal legislation capable of striking a balance between the pressures to develop and exploit marine areas for their resources and the need to protect and conserve significant marine areas.

B. Statutory Provisions

Title III of the MPRSA authorizes the Secretary of Commerce, with the approval of the President, to designate marine sanctuaries in ocean waters as far seaward as the edge of the continental shelf, in coastal waters subject to the ebb and flow of the tides, and in the Great Lakes or their connecting waters.³⁰ Areas may be designated to preserve or restore their "conservation, recreational, ecological, or esthetic values."³¹ Unlike most reservations of terrestrial public lands, marine sanctuaries do not require congressional approval for designation.

Coordination

section 302 of Title III contains an array of provisions designed to assure that cooperation and coordination take place between the Secretary of Commerce and other federal agencies, involved states, members of the public, and foreign governments prior to sanctuary designation.The successful implementation of these provisions is crucial, since after sanctuary designation many of these entities are prohibited by another provision of § 302 from authorizing activities which might adversely affect designated sanctuaries.

The first of the cooperative and coordinative elements of § 302 requires the Secretary of Commerce to consult with the Secretaries of State, Defense, Interior, and Transportation, the Administrator of the Environmental Protection Agency, and the heads of other interested agencies prior to designating an area as a sanctuary.³² Second, the Secretary must also consult with and consider the views of state officials if a proposed sanctuary would include waters within the state's jurisdiction.³³ Third, the governor of an involved state may veto a sanctuary designation within that state's jurisdiction within 60 days of the notice of designation.³⁴ Fourth, when a sanctuary includes areas of ocean waters outside the "territorial jurisdiction" of the United States, the Secretary of State is directed to take "appropriate" action to negotiate international agreements to protect the sanctuary and promote the purposes for which it was established.³⁵ Fifth, the Secretary of Commerce is required to hold public hearings in those coastal areas that would be "most directly affected" by sanctuary designation.³⁶ Sixth, the Secretary of Commerce must consult with interested federal agencies prior to the promulgation of regulations to control activities within the sanctuary.³⁷ Finally, § 302 requires that such regulations be promulgated "in accordance with recognized principles of international law."³⁸

Consistency Certification

Having provided an opportunity for interested federal agencies, coastal states, and members of the public to participate in the establishment of marine sanctuaries, Title III proceeds to ensure that these entities do not engage in activities that could harm the integrity of designated sanctuaries. This protection, provided by § 302(f) of the MPRSA, takes two forms: the issuance of site specific regulations to control activities within each designated sanctuary and the requirement that all governmental authorizations be consistent with sanctuary values. The latter mechanism, referred to as the consistency requirement, stipulates, in pertinent part, that:

… no permit, license, or other authorization issued pursuant to any other authority shall be valid unless the Secretary [of Commerce] shall certify that the permitted activity is consistent with the purposes of this title and can be carried out within the regulations promulgated under this section.³⁹

The consistency certification in effect gives the Secretary of Commerce the opportunity to veto permits, licenses, and other authorizations of activities that would adversely affect designated sanctuaries. Similar in many respects to the federal consistency requirements of § 307 of the Coastal Zone Management Act (CZMA),⁴⁰ § 302(f) provides a clear indication that Congress intended the designation of marine sanctuaries to play a prominent role in the development of a comprehensive approach to the nation's utilization and preservation of its marine resources. In fact, because § 302(f) applies to any permitting authorizations issued "by any other authority," it appears considerably broader than the scope of authority contained in the CZMA's consistency provisions, since it does not appear to be limited to federal permits, [8 ELR 50021] licenses, and authorizations. Unfortunately, while the range of governmental authorizations requiring certification of consistency seems clear, § 302(f) is ambiguous as to the intended geographic coverage of that requirement. That is, the language of the statute does not clearly indicate whether consistency is required of all activities affecting designated sanctuaries, or whether it applies only to activities taking place within sanctuary boundaries. As this article will demonstrate, neither the program guidelines nor the individual sanctuary regulations have interpreted the geographic coverage of the consistency provision in a manner which is most protective of sanctuary values.

Enforcement and Funding

Section 303 of the MPRSA subjects violators of sanctuary regulations to administratively imposed fines of up to $50,000 per day. Notice and an opportunity to be heard are prerequisities to the levying of such penalties. In addition, federal district courts may compel payment of these fines, may conduct in rem proceedings brought against vessels involved in such violations, and may issue injunctions and grant other appropriate relief.⁴¹ The Act, however, does not provide for criminal sanctions and is similary silent as to the ability of the Secretary of Commerce to delegate sanctuary management or enforcement responsibilities to other federal or state agencies.⁴²

In order to implement Title III of the MPRSA, § 304 authorized the expenditure of $10 million for each of the fiscal years 1973-75.⁴³ A 1975 amendment authorized $7.75 million for fiscal year 1976 and the subsequent transition quarter, while a 1976 amendment set an authorization level of only $ .5 million for fiscal year 1977.⁴⁴ In spite of these authorizations, however, no funds have ever been appropriated. In fact, no funds have even been specifically requested by the Department of Commerce or the Office of Management and Budget (OMB) and at present the program's funding authorization has expired. As a result, efforts to implement Title III have relied upon general departmental operating funds, a situation which has served, in large measure, to prevent the program from realizing its vast potential.

II.Implementation of Title III: The First Five Years

Handicapped by a lack of adequate funding, the marine sanctuaries program (MSP) progressed at a snail's pace during its first five years. Not until June 27, 1974, over a year and a half after the enactment of Title III, were program guidelines issued by the Administrator of the National Oceanic and Atmospheric Administration (NOAA), who had been delegated the authority to implement Title III by the Secretary of Commerce.⁴⁵ Only two marine sanctuaries have been designated to date — the site of the sunken Civil War ironclad, the U.S.S. Monitor, off the coast of North Carolina and a coral reef area off the coast of Key Largo, Florida. A number of other marine areas have been nominated for sanctuary status, but not designated, while other nominations remain under active consideration by NOAA.

A. Program Guidelines

The program guidelines issued by the Administrator serve two general purposes. First, they refine some of the broad concepts announced in Title III, thus supplying guidance for the site specific regulations which are to govern activities in designated sanctuaries. Second, the guidelines attempt, with questionable success, to provide effective procedures by which marine sanctuaries can be nominated, designated, and managed.

Chief among the clarifications in the guidelines, and one that offers practical guidance to those charged with implementing the program, is a classification scheme for sanctuaries. Designated sanctuaries are to fall within one or a combination of five different classifications: habitat areas,⁴⁶ species areas,⁴⁷ research areas,⁴⁸ recreational and esthetic areas,⁴⁹ and unique areas.⁵⁰ Another important concept announced by the guidelines, although not explicitly mentioned in the language of Title III, is that of compatible use. All uses compatible with the primary purpose or purposes for which a sanctuary is designated are permitted.⁵¹ The establishment of this concept not [8 ELR 50022] only serves to carry out the congressional intent, as expressed in the legislative history of Title III,⁵² it also serves to mitigate the concerns of development interests and others for whom the term "sanctuary" connotes the restriction of all uses. The guidelines also introduce the concept of employing marine sanctuaries as a seaward complement of programs designed to preserve terrestrial areas, such as public parks, national seashores, and national and state monuments.⁵³ In addition, they urge that the MSP be conducted in close cooperation with NOAA's estuarine sanctuaries program,⁵⁴ in anticipation that a unified system of marine and estuarine sanctuaries will emerge in conjunction with state coastal zone planning efforts.⁵⁵

A major portion of the guidelines is devoted to outlining the procedures by which sanctuaries are to be nominated, designated, and managed. Sanctuary nominations, which may be submitted by any federal, state, or local official (including those within NOAA) or any member of the public,⁵⁶ must contain a certain quantum of data on the proposed area, its characteristics, and its current and prospective uses.⁵⁷ Once received, sanctuary nominations are subjected to two levels of administrative review. First, with the assistance of involved states and other federal agencies NOAA conducts a "preliminary review to determine feasibility."⁵⁸ Unfortunately, the guidelines offer no clarification of the specific procedures or criteria to be employed in reaching this initial determination. Second, after a nomination's feasibility has been established, NOAA issues a public notice of the nomination⁵⁹ and initiates a more detailed study of the area, its characteristics, its present and potential uses, and the interrelationship between these uses and prospective sanctuary status.⁶⁰ Public participation in this detailed review is assured through the preparation of a draft environmental impact statement (EIS), which is to discuss proposed sanctuary regulations and operational procedures, and through the holding of public hearings in the areas "most directly affected" by the proposed designation.⁶¹ The guidelines also implement the statutorily prescribed intergovernmental consultation process,⁶² designed to guarantee the consideration ofvarious federal and state interests, such as those involving fisheries management, marine transportation, mineral exploration, and national security.⁶³

Following the opportunities for public and governmental input, and with the concurrence of the President,⁶⁴ NOAA may formally designate the proposed sanctuary.⁶⁵ The designation must set forth the purposes, regulations, and management program under which the sanctuary will be operated.⁶⁶ The guidelines specify that the management program must provide for continuous scientific evaluation, surveillance, and enforcement to protect the sanctuary's integrity.⁶⁷ They also outline administrative procedures designed to guarantee that [8 ELR 50023] violators of sanctuary regulations are afforded notice and an opportunity to be heard prior to the levying of the statutory penalties.⁶⁸ Under these guidelines, foreign citizens may be subject to sanctuary regulations in certain circumstances.⁶⁹

While it is commendable that the program guidelines encourage public nomination of sanctuaries and afford the opportunity for public input into the formulation of management programs, they do not entirely ensure effective public participation. This is because they neither define what constitutes a "feasible" nomination, nor provide specific procedures or criteria to be employed in reaching this threshold decision. And since this determination is a prerequisite to both the issuance of public notice of nominations and the preparation of environmental impact statements,⁷⁰ under the present guidelines there is in effect no public involvement in the evaluation of nominations until this critical first step in the designation process has been taken. Thus, detailed consideration of the merits of a nomination could be indefinitely delayed without the benefit of public scrutiny. The lack of prescribed standards for making feasibility determinations provides potential nominators with little indication of the kinds of marine areas likely to survive this first level of administrative review and effectively precludes challenges to findings of non-feasibility. In fact, the guidelines provide no guarantee that the public will even be informed when a nomination is found to be non-feasible. Until explicit procedures and criteria are established to govern the feasibility determination, effective public involvement in designating sanctuaries cannot be assured.

B. Existing Sanctuaries

The first half decade of the marine sanctuaries program has witnessed the establishment of only two sanctuaries. The first, designated on January 30, 1975, protects a one square mile area around the site of the sunken U.S.S. Monitor, located 16 miles from Cape Hatteras, North Carolina. The sanctuary's regulations⁷¹ are basically aimed at prohibiting activities which could damage the artifact, such as anchoring, diving, drilling, laying cables, and the discharge of pollutants.⁷² Permits may be issued by NOAA, after consultation with the Advisory Council on Historic Preservation, to conduct research activities related to the ship, or for salvage and recovery operations in connection with an air or marine casualty.⁷³ Criteria for permit issuance are provided in the regulations,⁷⁴ and applicants denied permits by the Administrator of NOAA may appeal that decision to the Secretary of Commerce.⁷⁵ In practice, primary responsibility for surveillance and enforcement of the sanctuary rests with the Coast Guard, although this arrangement is not explicitly established by the regulations.⁷⁶

The other existing sanctuary is the Key Largo Coral Reef, a 100 square mile area located in federal waters seaward of the State of Florida's John Pennecamp State Park. The area was withdrawn from OCS mineral leasing by a Proclamation issued by President Eisenhower in 1960.⁷⁷ When it was designated as a marine sanctuary on December 18, 1975, interim regulations⁷⁸ were issued which prohibited activities such as the removal of natural features including fish and coral, dredging or filling, the discharge of pollutants, and anchoring on coral formations.⁷⁹ As in the case of the Monitor, the Key Largo regulations provide criteria for the issuance of permits to conduct research and marine salvage and recovery operations⁸⁰ and allow appeals from the denial of permit applications to the Secretary of Commerce.⁸¹ Specified compatible uses include recreational boating and fishing, snorkelling and scuba diving, commercial fishing, and scientific endeavors.⁸² The regulations do, however, allow up to 20 percent of the sanctuary to be closed to public use either to allow the sanctuary's living resources to recover from overuse or to accommodate scientific research.⁸³

Although NOAA's role in managing the Key Largo sanctuary extends to reviewing and approving permitted activities, the state of Florida's Department of Natural Resources serves as the on-site manager of the sanctuary pursuant to a cooperative agreement developed between NOAA and the state.⁸⁴ In this capacity the Department is assisted by an advisory board with representatives from federal and state agencies, as well as members of the public.⁸⁵ While it seems sensible to delegate management responsibilities to the state, since it also manages the adjacent waters of the John Pennecamp Park for similar purposes, the state lacks the legal authority to enforce the sanctuary's regulations. Consequently, the Coast Guard [8 ELR 50024] must serve as the enforcement agent.⁸⁶ The splitting of management and enforcement responsibilities between the state and the federal government has resulted in cumbersome operating practices which have made it difficult to adequately protect the sanctuary's coral reefs. The situation is exacerbated by Title III's lack of authorization to levy criminal sanctions and arrest violators. Although the BLM does possess the authority to impose criminal sanctions, pursuant to its regulations protecting viable coral communities,⁸⁷ efforts to establish an interagency agreement with BLM have thus far proved unsuccessful. The net result of this bureaucratic tangle is less than optimum protection of the sanctuary's values, a result which has led NOAA to seriously consider seeking an amendment to Title III authorizing criminal sanctions and allowing for the delegation of enforcement responsibilities to capable state agencies.

Two additional aspects of both the Key Largo and Monitor regulations are worthy of note. First, neither contains an express statement of the purposes for which the sanctuaries were designated, in spite of the fact that NOAA's program guidelines require that the purposes be clearly stated at the time of designation.⁸⁸ This may make it more difficult for NOAA to justify permit decisions or to issue the consistency certifications required of other governmental authorizations.

The second difficulty with the regulations concerns their unsuccessful incorporation of the consistency certification itself. As mentioned previously,⁸⁹ § 302(f) grants NOAA broad authority to ensure that all other authorized activities are consistent with the purposes of Title III and individual sanctuary regulations. The consistency certification procedures adopted for both Key Largo and the Monitor have restricted the applicability of the certification requirement to federal activities which have previously been authorized within the boundaries of the two sanctuaries.⁹⁰ No mention is made of state or local authorizations, nor are procedures established to provide for review of future authorizations. Moreover, by limiting the geographic coverage of the certification to activities within the boundaries of the sanctuaries, the regulations allow activities to take place in adjacent areas which could adversely affect the ecological or cultural values of the sanctuaries. In fact, largely due to the restrictive interpretation of the consistency requirement in both the Key Largo and Monitor regulations, no request for certification has ever been made. A broader interpretation of the scope of applicability and geographic coverage of the consistency requirement is both legally defensible and necessary to preserve the integrity of designated sanctuaries.

C. Proposed Sanctuaries

In August of 1977, prior to NOAA's stepped-up response to the President's Environmental Message,⁹¹ three marine sanctuary nominations were under active consideration. These included a coral reef area off of Looe Key, Florida; a 1,000 square mile area surrounding the Palau Islands in the Pacific Trust Territories; and a Killer Whale sanctuary in Puget Sound, Washington.⁹² The latter two nominations appear to have been submitted out of concern over proposals to commit these areas to oil ports.⁹³ Although the Killer Whale nomination has since been removed from active consideration,⁹⁴ the Flower Gardens Coral Reef, located approximately 100 miles off the coast of Texas, was recently nominated and is now under active consideration by NOAA.

As in the case of the Killer Whale nomination, four other areas nominated prior to August 1977 are no longer considered by NOAA to be "feasible."⁹⁵ Because of the [8 ELR 50025] lack of articulated standards defining what constitutes a feasible nomination,⁹⁶ however, it is difficult for members of the public to discern those sites which are particularly well suited for sanctuary designation or to challenge determinations of non-feasibility. It is, moreover, difficult to ascertain the status or even existence of nominations, since unless a nomination hurdles the feasibility threshold, the only publicly available information appears in NOAA's annual reports to Congress.⁹⁷

III. Program Acceleration: A New Ball Game

After years of languishing in the backwaters of the federal bureaucracy, unable even to secure the support of previous administrations in seeking congressional appropriations, the marine sanctuaries program has, in the past few months, entered what promises to be a new era. Two events are largely responsible for ushering in this second generation, a generation in which the program appears capable of assuming a key role in the nation's increasing interest in the effective utilization and protection of its marine resources. The first event is the recognition given the program in the President's Environmental Message, which bestowed upon the program a new level of visibility and has fostered an unparalleled level of program activity. The second is a proposed reorganization of NOAA which should place the program in a much more favorable position in which to secure administrative, legislative, and public support, and thus may prove to be an even more important assurance of its long-term viability.

A.The President's Environmental Message

May 23, 1977, may well be the most significant date in the history of efforts to implement the marine sanctuaries program. On that date President Carter delivered to Congress his Environmental Message,⁹⁸ the first such address in four years. The President devoted special attention to marine sanctuaries, making it clear that the program would play a significant new role in the nation's attempts to better manage its marine resources:

Existing legislation allows the Secretary of Commerce to protect certain estuarine and ocean resources from the ill-effects of development by designating marine sanctuaries. Yet only two sanctuaries have been designated since 1972, when the program began.

I am, therefore, instructing the Secretary of Commerce to identify possible marine sanctuaries in areas where development appears imminent, and to begin collecting the data necessary to designate them as such under the law.⁹⁹

The President also singled out the Alaskan outer continental shelf for special attention:

… Because the Alaskan outer continental shelf is particularly sensitive and controversial, I am directing [the Secretary of Interior] to give special emphasis to it. I have also asked him to work closely with the Secretary of Commerce as the identifies potential marine sanctuaries in areas where [offshore] leasing appears imminent.¹⁰⁰

NOAA's first response to the President's Message was to request the assistance of other federal agencies in establishing criteria for the selection of potential marine sanctuary sites. On August 16, 1977, with the assistance of the Environmental Protection Agency and the Department of the Interior, NOAA issued draft site selection criteria to assist federal and state agencies and members of the public in identifying potential sites.¹⁰¹ NOAA then requested public comment on the criteria, as well as recommendations concerning candidate sites by September 16, 1977. That announcement explained that these sites would be ranked on the basis of the following factors: the imminence of development;¹⁰² the uniqueness and fragility of the area; the importance of the site as an ecological unit; and the impact of external uses on the area.¹⁰³

The response to NOAA's request for candidate sites has been startling. One hundred and sixty-nine recommendations were received, including 24 from the states and 35 from members of the public.¹⁰⁴ In keeping with [8 ELR 50026] President Carter's directive, areas off the shores of Alaska have received the most attention — 45 recommendations. Although NOAA's original expectation of formally nominating sites by December 30, 1977¹⁰⁵ has not been fulfilled, it is expected that at least two sanctuary nominations will emerge from this process.¹⁰⁶ Environmental impact statements, implementing regulations, and management plans will then be prepared with respect to each, with designation decisions expected by October of 1978.

Thus, the past year has witnessed more progress toward achieving Title III's goals than in the entire previous four and a half years. As a result of the President's Message, the marine sanctuaries program has, for the first time, received widespread attention from federal and state agencies and the public. Perhaps even more important, this new visibility has led NOAA to restructure the manner in which the program will be administered.

B. NOAA Reorganization

Responsibility for implementing the marine sanctuaries program during its first five years has rested with NOAA's Office of Coastal Zone Management (OCZM). Because of staff limitations¹⁰⁷ and its considerable responsibility in overseeing the development and administration of 34 state and territorial coastal zone management programs,¹⁰⁸ OCZM has not given a high priority to the marine sanctuaries program. This is most strongly evidenced by the fact that not one funding request for the program has ever survived the departmental budgetary review process.¹⁰⁹ Consequently, Congress has never even been presented with a formal request for appropriations.

Under a major reorganization plan recently implemented by NOAA Administrator Richard Frank, however, implementation of the marine sanctuaries program has been transferred from OCZM to a new Office of Ocean Management.¹¹⁰ This office assimilates a number of NOAA responsibilities concerning ocean resources and, in effect, is the first federal office with explicit responsibility for the development of a broad-based ocean policy. In addition to assuming responsibility for administering the marine sanctuaries program, the Office of Ocean Management is to review and evaluate selected ocean use projects, including deepwater port applications, and identify critical ocean areas where positive planning is needed to ensure optimum utilization of ocean resources.

Several benefits can be anticipated to accrue to the marine sanctuaries program as a consequence of this reorganization. First, since marine sanctuaries implementation is the only programmatic responsibility of the Office of Ocean Management, the program should no longer be overshadowed, both in terms of staff time and funding, by the coastal zone program.¹¹¹ Second, as part of the chief federal ocean management office, the program is in a better position to play an integral role in the development of NOAA's positions with respect to the allocation of marine resources. Third, and perhaps of most immediate importance, because the Office of Ocean Management will report directly to the Administrator, rather than to another line office, the marine sanctuaries program should enjoy a higher level of visibility within NOAA itself. This should, in turn, serve to increase its ability to obtain budget clearances from the Department of Commerce and the Office of Management and Budget.

Coming on the heels of the stimulus provided by the President's Environmental Message, the NOAA reorganization should equip the program with an administrative capability sufficient to propel it into the forefront of efforts to better plan for and manage marine resources. It should be recognized, however, that despite this new capability, the fate of the program is in the hands of higher authorities. An administrative change of heart concerning the federal commitment to the program or a refusal on the part of Congress to provide adequate funding could easily relegate the program to its former status.

IV. Critical Elements in Effective Program Implementation

Few would argue with the proposition that governmental initiatives are more effective if undertaken pursuant to broad-based planning processes. In natural resources decision making this maxim has led to the creation of legally enforceable obligations to conduct such planning at all levels of government. On the federal level it is not an overstatement to assert that the mandates of the National Environmental Policy Act (NEPA)¹¹² have served to revolutionize administrative decision making.¹¹³ On the state level it can be argued that "mini-NEPA's" [8 ELR 50027] are having the same effect.¹¹⁴ And on the local level comprehensive planning requirements fulfill a similar function.¹¹⁵ The same spirit of fostering broadbased planning led the Department of Commerce to require that NOAA formulate a detailed management plan for the marine sanctuaries program prior to approving budget requests for the program.¹¹⁶ If this yet to be adopted management plan is to play a significant role in achieving the lofty goals of Title III of the MPRSA, however, the elements described below must be included.

A. The Processes Establishment of a National Register of Areas of Marine Significance

If the response to NOAA's request for the submission of candidate areas for sanctuary sites¹¹⁷ proves nothing else, it demonstrates that the number of marine areas of potential significance far exceeds the number which can at present be effectively managed as sanctuaries, or even evaluated in the near future for inclusion in the national system. Although the program does not possess the administrative capability to fully consider the abundance of potential sanctuary sites, there should be a means of directing prompt and adequate attention to those areas deserving special recognition. The creation of a national Register of Areas of Marine Significance (RAMS) could offer these important areas such recognition without imposing upon NOAA the administrative and financial burdens accompanying formal sanctuary nomination and designation.

The creation and maintenance of a RAMS would serve several additional program purposes. It would catalogue potential sanctuary nominations, facilitate NOAA comments on proposed marine activities, help to identify critical marine areas where positive planning is needed for effective resource decision making,¹¹⁸ and establish a repository where marine information developed in the course of other decision-making processes could be compiled and updated. The Register could also provide a preliminary threshold in evaluating formal marine sanctuary nominations, thus serving to clarify some of the uncertainties which characterize the initial phases of the current procedure.

Because eligibility criteria for inclusion on the RAMS would be less demanding than those for sanctuary status,the necessary body of background data would be correspondingly smaller. However, a certain minimum level of information on the site would be required, such as its location, size, natural characteristics, outstanding values, and development pressures. Administrative review could be facilitated by eliminating the requirement of preparing an EIS prior to placing a site on the Register.¹¹⁹ This could be arguably justified on the ground that since no regulatory or management controls would apply to RAMS sites, placing an area on the Register might not constitute a major federal action significantly affecting the quality of the human environment.¹²⁰ Nevertheless, federal agencies would be encouraged (or required)¹²¹ to provide public notice in advance of approving licenses or permits or undertaking activities potentially affecting RAMS sites and to revise their NEPA procedures to consider the effects of proposed actions on these areas.

Because the Register would foster the broad legislative goals established by Title III and could in effect become the first step in the sanctuary evaluation process, specific enabling legislation to establish the Register would not be necessary. However, since the cooperation and assistance of other federal agencies engaged in marine activities would be instrumental in its effective implementation, an Executive Order directing federal agencies to actively participate in nominating RAMS areas, to consider the effect of their activities on RAMS sites, and to provide NOAA with pertinent information concerning these areas is almost essential to the success of the RAMS concept.¹²² In the alternative, interagency agreements along these lines would be necessary.

Establishment of Discrete Criteria for Key Decision-Making Points

Under the present program guidelines there are two key decision-making points in the evaluation of sanctuary nominations: the feasibility determination, which triggers more detailed and lengthy review, and the decision to designate areas as sanctuaries. As previously mentioned,¹²³ the former is governed by no specified set of publicly available criteria. It is, therefore, impossible for nominators and other members of the public to ascertain those factors which influence this initial but critical [8 ELR 50028] decision. To remedy this situation explicit criteria governing each stage of the decision-making process must be established and published in the program guidelines.

In addition, the establishment of a three-step decision-making process would allow the decision to place a site on the national Register of Areas of Marine Significance to effectively become the initial step in the evaluation of sanctuary nominations. This would allow the public an opportunity to become actively involved earlier in the evaluation process, particularly if public notice was provided upon receipt of a nomination. In brief, the process could function in the following fashion. When a nomination is received, NOAA would issue a public notice inviting comment and proceed to evaluate the site in terms of its suitability for Register status on the basis of criteria set forth in its program guidelines. If, pursuant to this process, a given area is placed on the Register, NOAA would then conduct a more detailed evaluation (again according to a prescribed set of criteria) of the site's potential for sanctuary designation.¹²⁴ Each site would then receive a priority rating in relation to the other nominations placed on RAMS. This ranking would be accompanied, as in the first phase, by a brief public announcement describing the decisions reached and the bases thereof.¹²⁵ Areas given a high priority would, to the extent NOAA resources permit, undergo detailed evaluations leading to decisions on sanctuary designation. This evaluation would be the third step in the decision-making process and would include an EIS review and the preparation of a proposed sanctuary management plan and draft implementing regulations.

Each of the three steps in the decision-making process would be made and justified on the basis of criteria set forth in the program guidelines. The criteria governing each decision, while basically similar, should differ in their emphasis. For example, RAMS decisions might be concerned primarily with the ecological or cultural characteristics of the site; the prioritization of sites would likely give greater weight to the threats to the area from developmental pressures; while sanctuary designation decisions could emphasize management concerns. The institution of such a three-step process would give the RAMS listing a functional role in sanctuary designation determinations, and would require decisions at all stages to be justified on the basis of publicly available criteria. Such a process would also maximize system efficiency by ensuring that those nominations which reach the sanctuary designation stage are those which possess the greatest potential to benefit from sanctuary protection.

Ensuring Consistency of Other Governmental Authorizations

Once an area has been designated a marine sanctuary, uses within the sanctuary are to be regulated pursuant to a site management plan and implementing regulations. Under Title III, however, activities taking place outside the sanctuary's boundaries are outside the scope of the management plan and the implementing regulations. Yet because of the nature of the medium in which they are situated, marine reserves are much more susceptible to the influences of adjacent activities than are terrestrial reserves. As a result, if the integrity of designated sanctuaries is to be preserved, it is necessary to exert some control over activities taking place outside their boundaries.

In § 302(f) of the MPRSA Congress declared invalid activities which are not certified by the Secretary of Commerce as being consistent with the purposes of Title III and capable of complying with sanctuary regulations. This broad-based grant of authority has, however, been construed quite narrowly in the regulations governing the two existing sanctuaries.¹²⁶ These regulations limit the scope of authorizations requiring consistency certification to federal authorizations, and only to those previously authorized within the sanctuaries' boundaries.¹²⁷ Such an interpretation is of questionable legal validity, and leaves unregulated activities adjacent to designated sanctuaries which may degrade the ecological or cultural values for which they were established.

There is no indication in the statute or its legislative history that Congress intended only federal activities to be subject to the consistency requirement. The language of § 302(f) speaks of "authorization[s] issued pursuant to any other authority."¹²⁸ Furthermore, since Congress authorized the establishment of sanctuaries in state as well as federal waters¹²⁹ and explicitly required the approval of the governor when in the former,¹³⁰ it is logical to assume that Congress intended both state and local authorizations to be included within the scope of the term "any other authority." Without any indication to the contrary, the scope of authorizations subject to consistency should be governed by the clear statutory language. Similarly, there is no statutory support for NOAA's limiting the consistency certification to activities previously authorized. The congressional language stipulates that "no permit, license, or other authorization" can be issued without a consistency certification;¹³¹ to interpret this to embrace only previously granted permits, [8 ELR 50029] licenses, and other authorizations contradicts the plain meaning of the statute.

There are also no compelling reasons to limit the geographic coverage of the consistency certification to activities taking place within the boundaries of designated sanctuaries. Although the statutory language is ambiguous on this point, speaking neither to authorizations within nor authorizations affecting designated sanctuaries, the latter interpretation is defensible for several reasons. First of all, the clause immediately preceeding the consistency directive in § 302(f),¹³² which authorizes the promulgation of sanctuary regulations, is quite clear as to its geographic scope. It authorizes regulations governing only activities within designated sanctuaries. Thus, when Congress sought to limit the geographic coverage of certain sanctuary regulations to sanctuary boundaries, it did so unequivocally. Because there is no clear indication that the reach of the consistency provision is to be similarly limited, it can be inferred that Congress intended a broader scope of applicability.

Secondly, an "affecting" standard is supportable on the basis of the criteria established by § 307(f) to determine whether an authorization is indeed consistent. Authorizations must (1) be consistent with the purposes of Title III and (2) be capable of being conducted without violating sanctuary regulations. Since the second criterion obviously pertains only to activities within sanctuary boundaries, it is arguable that the first criterion is intended to have a more far reaching application. If it does not, there would be no reason to insert two distinct criteria.

Finally, and perhaps most importantly, the purposes of Title III — to preserve or restore marine areas for their conservation, recreational, ecological, and esthetic values¹³³ — cannot realistically be achieved if sanctuary management ignores adjacent activities which could adversely affect these values. Thus, in prescribing this litmus test for consistency determinations it can be argued that Congress recognized the need for as broad a geographic coverage of the consistency certification as is necessary to protect the values for which a sanctuary was designated.¹³⁴

There are, therefore, good reasons for interpreting the scope of governmental authorizations and the geographic coverage of § 302(f)'s consistency provision more broadly than do the existing sanctuary regulations. Both these regulations and the program guidelines should be redrafted accordingly. In order to put those entities responsible for issuing such authorizations on notice of the geographic areas subject to certification of consistency, the program guidelines should encourage sanctuary regulations that establish buffer zones surrounding designated sanctuaries within which all authorizations would require a consistency determination.¹³⁵

B. The Players Cooperation of Federal Agencies

The cooperation and assistance of other federal agencies is particularly crucial to the successful implementation of the marine sanctuaries program. Federal agencies exert an enormous influence over the marine environment through their licensing, permitting, and leasing functions and through resource development projects. In addition, largely as a result of the duties imposed by NEPA, they accumulate masses of information concerning the marine environment which can help to identify potential sanctuary sites as well as assist in evaluating particular nominatioins. It is, therefore, imperative that NOAA develop effective mechanisms to obtain pertinent marine information generated by other federal agencies and also to ensure that these agencies do not undertake or authorize activities without first considering their potential effects on RAMS sites or designated sanctuaries.

Such cooperation can be achieved in two ways. First, NOAA could initiate contacts with federal agencies significantly involved in marine activities, with a view toward developing interagency agreements or memos of understanding. Agreements with agencies responsible for regulating developmental activities are particularly important. These would include the Bureau of Land Management and the United States Geological Survey in the case of outer continental shelf mineral leasing, the Environmental Protection Agency and the Army Corps of Engineers concerning ocean dumping and the regulation of dredge or fill activities, the Department of Transportation regarding the siting of deepwater ports, the Federal Energy Regulatory Commission (formerly the Federal Power Commission) concerning the licensing of liquified natural gras terminals, and the Nuclear Regulatory Commission with respect to the siting of offshore nuclear power plants. Agreements with these agencies could be directed toward providing NOAA with information on existing or potential Register sites or sanctuaries, generated as a result of their own or their applicants' environmental reviews. In addition, the [8 ELR 50030] agreements should encourage these agencies and their applicants to submit nominations to NOAA. Most importantly, these agreements should ensure that the regulatory procedures of these agencies, particularly their NEPA procedures, require the consideration of any potential adverse effects on sanctuaries or RAMS sites well in advance of any decision which could affect these areas. In fact, a recent court case has held inadequate an EIS fror failure to consider the possibility of marine sanctuary designation as an alternative to aproposed offshore oil and gas lease sale.¹³⁶ Agreements should also be established with the National Marine Fisheries Service and the Regional Fisheries Councils, which are required to develop and implement regional fisheries management plans.¹³⁷

Federal agencies whose missions do not involve the regulation of developmental activities in the marine environment can also make important contributions to the marine sanctuaries program. This is particularly true of the Coast Guard, which serves as the principal marine enforcement agent for all federal agencies.¹³⁸ Agencies which manage terrestrial reserves along the nation's coasts, such as the Fish and Wildlife Service and the National Park Service should be encouraged to identify potential sanctuary sites for the purpose of providing compatible management programs in offshore areas. Cooperative agreements with the National Park Service could be particularly fruitful in this regard, since it already manages a number of marine areas lying adjacent to its terrestrial reserves.¹³⁹

The second means of achieving the cooperation of these federal agencies is through the issuance of an Executive Order.¹⁴⁰ An Executive Order directing all federal agencies to cooperate and assist in the identification and protection of marine areas of natural and cultural significance would have several advantages over individual agreements with agencies. Because such an order would signify a continuing federal commitment to identify and protect marine areas of special value, it would be difficult for any federal agency to ignore the impact of its activities on these areas.¹⁴¹ The subsequent development of interagency agreements would, as a result, proceed with considerably greater speed.The higher visibility which an Executive Order would give the program should also encourage more active involvement on the part of the states and the public. Furthermore, the influence that such an Order would have on the Office of Management and Budget and the Congress with respect to budget levels should not be underestimated.

The contents of an Executive Order on the marine sanctuaries program should order the creation of the national Register of Areas of Marine Significance and direct all federal agencies to take steps to identify RAMS sites. In addition, the Executive Order could require federal agencies to consider the effect of their activities on marine areas listed on the Register or designated as sanctuaries, and, to the maximum extent practicable, refrain from engaging in or approving activities which may have an adverse affect upon the values of designated sanctuaries or areas under active consideration for sanctuary status. Agencies should also be required to provide notice to NOAA and the public whenever they are considering activities which might affect RAMS sites, in order to allow an opportunity to institute expedited consideration of these areas for sanctuary designation. Agencies with oceanographic monitoring, surveillance, and enforcement capabilities could be directed to cooperate and assist in the management of designated sanctuaries. Finally, the Executive Order should require the Council on Environmental Quality to report to the President on the effectiveness of efforts to implement its directives and the Office of Management and Budget to consider the Council's report when formulating budget requests to Congress for the various federal agencies.

Cooperation of the States

The effective cooperation of coastal states in the identification of marine areas of special value is also a critical element in the effective implementation of the marine sanctuaries program. In fact, because most recreational sanctuaries and all sanctuaries in estuarine areas will be located in state waters, state cooperation is essential since the MPRSA vests state governors with the authority to veto sanctuary designations within state boundaries.¹⁴² To date, however, cooperation between NOAA and coastal states has been less than optimal, as evidenced by the fact that there have as yet been no marine sanctuaries designated in state waters. Moreover, in at least two instances opposition by the state (or its subdivisions) has been the principal cause of the failure of nominations to proceed beyond the initial feasibility determination.¹⁴³ On the other hand, certain states have [8 ELR 50031] recently demonstrated an active interest in the program — for example, the states of California, Washington, Alaska, Pennsylvania, and New Jersey submitted a total of 24 recommended sanctuary sites in response to NOAA's most recent request.¹⁴⁴ In addition, many states have established programs to preserve and protect marine areas in a manner similar to the marine sanctuaries program. Examples of such state programs include Florida's system of aquatic preserves, Massachusetts' ocean sanctuaries, and Hawaii's natural areas reserves and marine life conservation districts.¹⁴⁵ Close federal cooperation with these states and others with similar programs will aid in the identification of suitable sanctuary sites, and may also provide an opportunity for all parties to benefit from the evolution of more effective management practices.

More active state involvement in the marine sanctuaries program can be anticipated if the states are apprised of the substantial incentives available to better manage their marine resources. First of all, the program offers states federal funding to manage marine areas within their waters. And, unlike the case of coastal zone planning and the estuarine sanctuaries programs, state matching funds are not required.¹⁴⁶ Furthermore, primary management responsibilities can be delegated to the states, as has been done with respect to the Key Largo Coral Reef sanctuary. This possibility should be particularly appealing if the states are afforded a meaningful opportunity to participate in the design of sanctuary management plans and implementing regulations. Moreover, Title III's consistency requirement would seem to offer the states (through NOAA) the assurance that federal activities will not adversely impact upon these areas once they are designated, particularly if consistency is interpreted to apply to activities affecting, as well as within, designated sanctuaries.

Thus, the marine sanctuaries program can offer to resourceful states a significant opportunity to manage particular offshore areas to preserve their natural and cultural values. There remains, however, an obstacle to successful sanctuary management by the states: their lack of authority to enforce sanctuary regulations. This deficiency has caused management difficulties, for example, in the Key Largo marine sanctuary. To remedy this, NOAA should seek from Congress an amendment to Title III granting it the authority to delegate enforcement responsibilities to capable states. While empowering the states to enforce federal laws is rather unusual,¹⁴⁷ it is not unprecedented.¹⁴⁸ In addition, this amendment should authorize the levying of criminal sanctions.¹⁴⁹ Thus, if the authority to, in effect deputize state officials as federal enforcement agents were granted,¹⁵⁰ along with the power to levy criminal sanctions, more effective sanctuary management should result.

While the proposed amendments should improve sanctuary management capabilities and help to stimulate interest in the program on the part of the states, NOAA currently has at its disposal a number of other mechanisms which can be utilized to encourage active state cooperation with the marine sanctuaries program. First, by requiring states participating in the coastal zone management program to demonstrate, as part of their annual grant applications, the efforts they have taken to identify areas suitable for sanctuary or RAMS consideration, NOAA could take a significant step toward integrating the marine sanctuaries program with coastal planning activities. Second, state coastal zone management program approval regulations, which are in the process of being revised by the Office of Coastal Zone Management,¹⁵¹ should explicitly mention the identification of potential marine sanctuaries. Finally, the [8 ELR 50032] new Coastal Fisheries Assistance Program should require recipient states to identify potential sanctuary and RAMS sites in the course of establishing programs to manage fisheries in their offshore waters.¹⁵² These measures would serve to foster the close cooperation between coastal and ocean management activities requested by NOAA Administrator Frank, as well as help carry out the expectations outlined in the marine sanctuary program guidelines.¹⁵³ And by bridging the gap between coastal and marine planning, they would provide strong incentives for coastal states to become actively involved in identifying marine areas of significance.

Public Involvement

The public has a particularly vital role to play in the implementation of the marine sanctuaries program. Because Title III provides members of the general public the opportunity to nominate marine areas for sanctuary status, interested individuals and organizations can significantly affect the direction of the program. Few other legislative schemes offer such an open-ended opportunity for the public to initiate actions designed to protect natural resources.

Regrettably, the present marine sanctuary program guidelines allow the initial evaluation of sanctuary nominations — the feasibility determination — to be made in the absence of meaningful public participation or review.¹⁵⁴ Thus, while the public is encouraged to submit nominations, there is no effective public involvement in the critical threshold decision of whether detailed evaluations of such nominations are merited. If, however, the program guidelines were revised to provide criteria to guide each step in the evaluation process and to offer the public an opportunity to review decisions made on the basis of these criteria, the program would take a large step towards increasing its public accountability. And, by placing nominators on notice of the criteria used in evaluating sanctuary nominations, the program would encourage the submission of nominations that at least on a prima facie basis satisfy the prescribed criteria.

In addition to clarifying the sanctuary evaluation process, public involvement can be encouraged through the effective use of the environmental impact statement process. The present EIS process requires not only a consideration of the environmental effects of sanctuary designation but also the concurrent development of management plans and implementing regulations. In addition, the draft EIS is the subject of public hearings in areas likely to be affected by sanctuary designation. While these procedures seem sound, particularly since they attempt to utilize the EIS process as a means to involve the public in management decisions, they run the risk of taking place late in the decision-making process. In other words, by the time the EIS process provides the public an opportunity to review the sanctuary nomination, crucial decisions may have already been made. The three-step decision-making process advocated above¹⁵⁵ might actually exacerbate this difficulty by providing for two out of three steps to be conducted prior to EIS preparation instead of one. However, the suggested requirements of public notice of nominations and publicly available criteria should serve to involve the public in these pre-EIS decisions. And while it seems unnecessary and perhaps counterproductive to prepare an EIS on the initial decision to place a site on the Register of Areas of Marine Significance¹⁵⁶ and impracticable to prepare an EIS each time a site is assigned a priority rating,¹⁵⁷ the public notice of this secondary determination should contain enough information to apprise the public of the anticipated environmental effects of such a rating. In this manner, the fact that a formal EIS is not prepared until after the second step of the decision-making process need not impair the public's ability to review the environmental effects of the earlier decisions.

Finally, a potentially fruitful means of involving the public in the marine sanctuaries program concerns the kinds of marine areas considered for sanctuary designation. There is likely to be greater public interest in marine areas near shores which are used for recreational activities than in areas that are inaccessible to members of the general public. While the present program impetus supplied by President Carter's Environmental Message is directed largely to outer continental shelf areas threatened by impending developmental activities, this should not obscure the fact that Title III is aimed equally at the protection of estuarine and near shore areas used for recreational activities.¹⁵⁸ By encouraging the establishment of these "human use" sanctuaries, therefore, the marine sanctuaries program would not only encourage the participation of a large segment of the public, it would also help to fulfill the broad mandate given to the program by Congress.

International Considerations

In order for marine sanctuary regulations to be applicable to foreign citizens and vessels outside of the "territorial jurisdiction"¹⁵⁹ of the United States, Title III [8 ELR 50033] of the MPRSA requires that the regulations observe "recognized principles of international law" or be authorized by agreements between the United States and foreign nations.¹⁶⁰ Consequently, in designing regulations for sanctuaries located outside of the three mile territorial sea, the marine sanctuaries program must give careful consideration to the treaties, conventions, and agreements to which the United States is a party. This will require close coordination with the State Department's Office of Ocean Affairs both in terms of identifying relevant international laws and agreements and inensuring that the regulations are consistent with them.

The program must also be sensitive to the changing nature of the international approach to the law of the sea. If the provisions in the latest negotiating text developed at the Third United Nations Conference on the Law of the Sea become accepted principles of international law, coastal nations' jurisdiction over the waters off their coasts would significantly increase. These provisions would establish a territorial sea of 12 miles, extend the contiguous zone from 12 to 24 miles, and authorize the establishment of a 200-mile exclusive economic zone in which coastal nations would enjoy sovereign rights to conserve and manage living and non-living natural resources.¹⁶¹ Thus, the adoption of these principles would eliminate most of the uncertainties regarding the effect of marine sanctuaries regulations on foreign citizens and vessels.

Even if no internationally acceptable agreement is reached at the Law of the Sea Conference, there is evidence that much the same result might be achieved domestically. To a large degree, Congress has changed its notions concerning what constitutes "recognized principles of international law" in the years since the passage of Title III. For example, the extension of jurisdiction over foreign fishing to the 200-mile limit was asserted in spite of the fact that there is no international agreement sanctioning such an extension of jurisdiction.¹⁶² More recently, jurisdiction to assess oil spill cleanup costs under the Federal Water Pollution Control Act was also extended to the 200-mile limit.¹⁶³ Furthermore, Congress is considering several bills which would extend the jurisdiction of the United States over deep seabed mining activities in areas beyond the edge of the continental shelves, at least until an international regime to regulate such activities is adopted.¹⁶⁴ In light of this apparent shift in attitude, restricting the applicability of marine sanctuary regulations to foreign citizens could be an anachronism, and Congress may be willing to sanction a broader scope of applicability.

If international or congressional developments do not lead to an expansion of jurisdiction over the activities of foreign nationals or vessels affecting marine sanctuaries, efforts must be made to establish international agreements to protect designated sanctuaries from these activities. Agreements with nations whose ships fish in waters off the nation's coasts or engage in trade to or from United States ports are particularly crucial. In addition, agreements with nations whose waters lie adjacent to United States waters, such as Canada, Mexico, and the Soviet Union, could serve to identify areas suitable for marine sanctuary protection and provide for joint management of these areas. In this manner, the marine sanctuaries program could take significant steps to implement some of the principles which have been often echoed at international conferences.¹⁶⁵

V. Conclusion

The long dormant marine sanctuaries program is closer now to realizing its goals than at any time since its creation over five years ago. The legal framework from which to comprehensively manage valuable marine areas is largely in place, the President has publicly singled out the marine sanctuaries program as an essential mechanism in the management of the nation's natural resources, and NOAA's recent reorganization promises to better situate the program in terms of securing administrative resources and funds to implement the mandates of Title III of the MPRSA. Both outside and inside the government interest in the program has blossomed, as evidenced by the influx of recommended sanctuary sites which have recently descended upon NOAA, and the increasing willingness of courts to require that the possibility of marine sanctuary designation be considered in EIS's on proposed marine development projects.¹⁶⁶

Yet, further legislative and administrative steps must be taken if the program is to effectively protect and restore valuable marine areas. On the congressional level, certain amendments to Title III are needed.These include authorizing criminal sanctions in order to allow enforcement entities to restrain sanctuary violations, providing for the delegation of enforcement responsibilities to capable states, and including foreign activities among those subject to sanctuary regulations. In addition, in order to eliminate doubts as to the scope and geographic coverage of Title III's consistency provision, Congress should make it clear that the Act is to be applied as broadly as the legislative goals warrant. Perhaps of most immediate concern, Congress must demonstrate its commitment to these goals by authorizing and appropriating funds sufficient to guarantee the program's effective implementation.

[8 ELR 50034]

On the administrative level, NOAA must ensure that its reorganization effects changes not only in the program's implementation but carries over to the contents of the program's guidelines and implementing regulations. The guidelines must be revised to clarify the uncertainties that presently handicap the existing sanctuary evaluation process. This can be most readily accomplished by requiring each step of the process to be based on publicly available criteria and providing greater opportunity for public involvement. The guidelines should also establish a Register of Areas of Marine Significance and incorporate it as an integral element of the sanctuary evaluation process. Even if Congress does not clarify the language of Title III's consistency provision, both the guidelines and the sanctuary regulations should interpret the existing authority in a manner which is most protective of sanctuary values. In addition, NOAA must initiate efforts to establish and maintain the active involvement of other federal agencies and the states in identifying marine sites suitable for sanctuary protection and assuring that their actions do not adversely affect such areas. This may require the development of interagency agreements and memoranda of understanding with federal agencies, and appropriate revisions to coastal zone management grant application and program approval regulations in order to enhance state involvement.

Many of these administrative initiatives can be facilitated if NOAA can secure from the Administration an Executive Order supporting the marine sanctuaries program. Such an order should establish the national Register of Areas of Marine Significance, direct federal agencies to identify areas for inclusion on the Register or for sanctuary designation, and require that federal agencies consider the impacts of their actions on designated areas in order to avoid authorizing or undertaking actions which could adversely affect them. The Executive Order should also enlist the Council on Environmental Quality and the Office of Management and Budget to ensure that these directives are carried out. In addition to issuing this Executive Order, the Administration can demonstrate its commitment to the principles announced in the Environmental Message by sending to Congress budget requests sufficient to achieve them.¹⁶⁷

These legislative and administrative actions should serve to provide the marine sanctuaries program with the necessary tools to become a vital element in the nation's approach to the marine environment. Its potential role in this capacity should not be underestimated. Since the first day of this decade, the nation has required that federal actions with significant environmental effects be preceded by an analysis of those effects.¹⁶⁸ The National Environmental Policy Act's implicit requirement to plan before acting and its success in achieving more rational natural resources decision making has, in recent years, fostered the development of more explicit planning requirements. This is particularly true with regard to the terrestrial public domain, where comprehensive planning processes are now mandated to provide for better management of national forests and national resource lands.¹⁶⁹

In spite of the fact that more than two-fifths of the nation's public lands lie seaward of the high water mark of the nation's oceans and Great Lakes,¹⁷⁰ comprehensive planning requirements with respect to marine resources have been slow to evolve. Only the most recent congressional effort to better manage marine activities requires the full implementation of a broad-based planning process.¹⁷¹ While efforts continue to apply planning processes to yield more rational resource decision making in the marine environment, these too appear directed only to specific (albeit important) marine activities.¹⁷² Thus, if the elusive search for a national ocean policy is to be a successful one, it is likely to occur as a consequence of a number of different marine resources planning processes.

When viewed from this perspective, an effectively implemented marine sanctuaries program has a particularly important role in shaping the nation's approach to the marine environment. Although the marine planning processes which have been, or are likely to be instituted can lead to more effective utilization of marine resources, standing alone they cannot ensure the preservation and restoration of valuable marine areas. Only through the authority conferred by Title III of the MPRSA is there the capability to permanently protect and comprehensively manage critical marine areas for their natural and cultural values. As marine resources planning evolves into an essential component of a discernible national ocean policy, the realization of the congressionally announced goal of a "balanced" and "comprehensive" approach to the marine environment¹⁷³ will be a direct function of how effectively these diverse planning processes incorporate the goals of the marine sanctuaries program.

1. Marine Resources and Engineering Development Act of 1966, § 2(a), 33 U.S.C. §§ 1101-1108; see also S. Res. 22, 93d Cong., 2d Sess., 120 CONG. REC. 3472 (1974) (establishing the National Ocean Policy Study). N.B.: throughout this article the term "marine" will be used to connote both oceanic and Great Lakes waters.

2. H.R. 9708, introduced in the House of Representatives on October 20, 1977, and entitled the National Oceanic and Atmospheric Administration Organization Organic Act of 1977, declares it a national policy to create and maintain conditions under which ocean, coastal, and atmospheric resources can fulfill the needs of present and future generations wihout harm to the environment. The bill also recognizes the federal government's role as a public trustee of ocean and coastal resources under its sovereign jurisdiction, declares the necessity for ensuring that federal programs affecting ocean and coastal resources allocation be consistent; and requires that ocean and coastal resources be periodically and systematically inventoried and assessed. H.R. 9708, 95th Cong., 1st Sess. § 101(c)(1977). The bill would also designate the National Oceanic and Atmospheric Administration as the lead federal agency for ocean programs.

3. 16 U.S.C. §§ 1431-1434, ELR STAT. & REG. 41824:1 (hereafter MPRSA). The MPRSA is, of course, better known for its regulation of ocean dumping in Title I and its establishment of oceanographic research programs created by Title II (33 U.S.C. §§ 1401-1444, ELR STAT. & REG. 41821). For an earlier assessment of Title III, see Kifer, NOAA's Marine Sanctuaries Program, 2 COASTAL ZONE MGMT. J. 177 (1975); see also Laist & Odell, The Marine Sanctuaries Program Finally Surfaces, 80 AUDUBON no. 2 (Mar. 1978).

4. The Environment — The President's Message to Congress, 7 ELR 50057, 50066 (1977).

5. According to the Environmental Protection Agency (EPA), over 2.7 million tons of industrial wastes and over 5.2 million tons of sewage sludge were dumped into the oceans in 1976. ENVIRONMENTAL PROTECTION AGENCY, OCEAN DUMPING IN THE UNITED STATES — 1977, at 7, 13, 25. However, dredge or fill material constitutes by far the largest single source of ocean dumping, with an estimated 118 million tons amounting to more than 90 percent of all ocean dumping in 1974.COUNCIL ON ENVIRONMENTAL QUALITY, ENVIRONMENTAL QUALITY: SEVENTH ANNUAL REPORT, at 279 (1976).

6. The principal federal statutes regulating marine pollution are the Federal Water Pollution Control Act, 33 U.S.C. §§ 1251-1376 ELR STAT. & REG 42101; Title I of the MPRSA, 33 U.S.C. §§ 1401-1421, ELR STAT. & REG. 41821; the Oil Pollution Act of 1961, 33 U.S.C. §§ 1001-1016, ELR STAT. & REG. 41715; and the Ports and Waterways Safety Act of 1972, 33 U.S.C. §§ 1221-1227, ELR STAT. & REG. 41718. It should be noted, however, that an important means of controlling marine pollution — the ocean discharge criteria mandated by § 403(c) of the Federal Water Pollution Control Act — has yet to be implemented by the Environmental Protection Agency.

7. With an estimated one-fifth of the world's marine fishery resources within 200 miles of its coasts, the United States has witnessed the volume of fish commercially harvested off its coasts double in the period 1948-72 to 50 million metric tons. Almost all of this increment is due to increases in foreign catches. The National Marine Fisheries Service reports that, as a result of the increased harvests, over 30 species of fish have been overfished or fully utilized. See SENATE COMM. ON COMMERCE, SCIENCE, AND TRANSPORTATION, CONGRESS AND THE NATION'S OCEANS: MARINE AFFAIRS IN THE 94TH CONGRESS, 95th Cong., 1st Sess. 3 (1977).

8. Jurisdiction over the nation's offshore fishery resources was extended to establish a 200-mile fishery conservation zone by the Fishery Conservation and Management Act of 1976, 16 U.S.C. § 1801 et seq.

9. Since 1972 mineral leasing on the outer continental shelf has expanded dramatically. The 9.3 million acres under lease as of November 1976 were more than double the 4.3 million acres under lease three years earlier. DEPT. OF THE INTERIOR, MINING AND MINERALS POLICY 121 (1977). In addition, 1.1 million acres have been leased since November 1976, and five new lease sales are expected in 1978. For assessments of OCS oil and gas development, see U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, COASTAL EFFECTS OF OFFSHORE ENERGY SYSTEMS, vols. I and II (1976); and COUNCIL ON ENVIRONMENTAL QUALITY, OIL AND GAS IN COASTAL LANDS AND WATERS (1977).

10. On July 15, 1977, the Senate approved the Outer Continental Shelf Lands Act Amendments of 1977 (S. 9, 95th Cong., 1st Sess. (1977)), and on February 2, 1978 the House passed its own version of these amendments (S. 9, passed in lieu of H.R. 1614, 95th Cong., 1st Sess. (1977)). If agreement is reached, the OCS Lands Act Amendments would alter present OCS leasing procedures considerably, by requiring the Secretary of the Interior to develop a comprehensive leasing plan, requiring the development of improved OCS safety and environmental procedures, and providing a new framework for oil spill liability and compensation. The amendments would also increase the amount of OCS revenues to be shared by coastal states affected by OCS activity. At last report, a conference committee was expected to attempt to resolve the differences between the Senate and House versions of the Amendments. It should be noted, however, that a similar attempt to resolve differences on this topic was unsuccessful in the 94th Congress.

11. The construction of two deepwater ports has been approved by the Department of Transportation — LOOP, off the coast of Louisiana, and Seadock, off the coast of Texas. Plans for two other ports, Merryport and Delaware Bay, are in the early stages of formulation. Two liquified natural gas facilities are presently operational: Distrigas in Everett, Massachusetts and Phillips/Marathon on the Kenai Peninsula in Alaska. In addition, shipments are expected to begin early in 1978 to LNG facilities at Cove Point, Maryland, and Elba Island, Georgia, and construction of a facility at Lake Charles Harbor, Louisiana, was recently approved. Three other facilities, at Oxnard, California; Port O'Conner, Texas; and Kenai, Alaska are presently under consideration. See U.S. CONGRESS, OFFICE OF TECHNOLOGY ASSESSMENT, TRANSPORTATION OF LIQUIFIED NATURAL GAS, 29-38 (1977) Two floating nuclear power plants have been proposed off the coast of New Jersey and are under consideration by a licensing board of the Nuclear Regulatory Commission. See Atlantic Generating, NRC Docket No. STN 50-477-78.

12. See, e.g., the Office of Technology Assessment's analysis of oil and gas, deepwater port, and floating nuclear power plant siting issues off the coasts of New Jersey and Delaware, supra note 9, and OTA's LNG study, supra note 11. Recent legislation designed to assist in the effective siting of these facilities includes the Deepwater Port Act of 1974, 33 U.S.C. §§ 1501-1524, and the Coastal Zone Management Act Amendments of 1976, 90 Stat. 1013 (which establish a $1.2 billion Coastal Energy Impact Program to assist states and localities in planning for and managing the impacts of energy development in their coastal zones). However, no new comprehensive legislation has been enacted to govern the siting of LNG facilities and floating nuclear power plants. Consequently, these remain principally governed by the Natural Gas Act of 1938, 15 U.S.C. § 717a et seq. and the Atomic Energy Act of 1954, 42 U.S.C. § 2011 et seq.

13. See notes 51 and 52 and accompanying text, infra.

14. If the estimated 570 million acres of outer continental shelf lands are compared to the approximately 750 million acres of federal public lands lying above the high water mark, over 43 percent of the nation's public lands lie beneath the seas. Muys, The Federal Lands, in FEDERAL ENVIRONMENTAL LAW (Dolgin and Guilbert, eds.) 493, 504 (1974). One comentator has stated:

If one takes an expansive meaning of the term "land," then surely the most extensive system of lands under federal control is the outer continental shelf of the United States.

BEAN, EVOLUTION OF NATIONAL WILDLIFE LAW 187 (1977).

15. State coastal zone management programs are being developed pursuant to the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq. See notes 40, 54, and 55 infra, for a discussion of the similarities and relationships between the marine sanctuaries program and the coastal zone planning program.

16. What little program activity that has been accomplished has been supported through general NOAA operating funds.

17. VIRGINIA INSTITUTE OF MARINE SCIENCES, MARINE AND ESTUARINE SANCTUARIES, Report No. 70, at 9 (1973).

18. COUNCIL ON ENVIRONMENTAL QUALITY, OCEAN DUMPING — A NATIONAL POLICY (1970). Other studies which were instrumental in focusing legislative attention on the problems confronting the coastal and marine environment include the Commission on Marine Science, Engineering and Resources' final investigative report, OUR NATION AND THE SEA (1969) (prepared pursuant to § 5(h) of the Marine Resources and Engineering Development Act of 1966, Pub. L. 89-454); DEPT. OF THE INTERIOR, NATIONAL ESTUARINE POLLUTION STUDY (1969) (prepared pursuant to § 5(g) of the Clean Water Restoration Act of 1966, Pub. L. 89-753): and the BUREAU OF SPORT FISHERIES AND WILDLIFE AND BUREAU OF COMMERCIAL FISHERIES: NATIONAL ESTUARY STUDY (1970) (prepared pursuant to § 2 of the Estuary Protection Act of 1968, Pub. L. 90-454).For a critical evaluation of the latter two studies, see Hedeman, Federal Wetlands Law: An Examination, in REITZE, ENVIRONMENTAL PLANNING: LAW OF LAND AND NATURAL RESOURCES at two-12-16 (1974).

19. 92d Cong., 1st Sess. (1971).

20. H.R. REP. NO. 361, 92d Cong., 1st Sess. 15 (1971).

21. S. REP. NO. 451, 92d Cong., 1st Sess. (1971).

22. Federal jurisdiction over the seabed and subsoil of the outer continental shelf was established by virtue of the Truman Proclamation of 1945 (Exec. Order No. 9633, 10 Fed. Reg. 12305 (1945)) and the Outer Continental Shelf Lands Act of 1953, 43 U.S.C. § 1331 et seq. This assertion of jurisdiction was subsequently endorsed in 1958 at the First Law of the Sea Conference by the Convention on the Continental Shelf (15 U.S.T. 471, T.I.A.S. No. 5578), which defined the continental shelf to include the soil and seabled adjacent to the coast to a depth of 200 meters and beyond that where the depth of the water permitted the exploitation of the natural resources of the soil and seabed. Proposed Article 76 of the Third Law of the Sea Conference would alter the definition to include the outer edge of the continental margin or to the 200-mile limit where the margin does not extend that far. See Third United Nations Conference on the Law of the Sea, Informal Composite Negotiating Text, Art. 76 (1977).

23. Historically, the limit of the territorial sea, that area of the oceans over which adjacent coastal nations exercise sovereign jurisdiction, was three miles. KNIGHT, THE LAW OF THE SEA: CASES, DOCUMENTS, AND READINGS 76 (1975). However, during this century disagreements among coastal nations concerning the breadth of this territorial sea grew so pronounced that no agreement could be reached on this issue during the First U.N. Law of the Sea Conference. Id. at 316-19. Article 3 of the 1977 Informal Composite Negotiating Text, supra note 22, would sanction a 12-mile territorial sea. In the United States, which presently claims only a 3-mile territorial sea, jurisdiction over this area was ceded by the federal government to the states by virtue of the enactment of the Submerged Lands Act of 1953, 43 U.S.C. § 1301 et seq.

24. The contiguous zone, an area in which coastal nations exercise limited powers to protect special interests, has substantial historical precedent in international law. Knight, supra note 23, at 79-133. Article 24 of the 1958 Convention on the Territorial Sea and the Contiguous Zone (15 U.S.T. 1606, T.I.A.S. No. 5639) sanctioned a 12-mile contiguous zone in which coastal nations may take actions to prevent infringement of their customs, fiscal, immigration, or sanitary regulations. Proposed Article 33 of the 1977 Informal Negotiating Text, supra note 22, would expand this zone to 24 miles. In practice, however, the United States has enforced special contiguous zones considerably beyond the limits sanctioned internationally, such as the 12-mile zone authorized by the 1935 Anti-Smuggling Act (19 U.S.C. §§ 1701-1711), and, of course, the 200-mile fishery conservation zone authorized by the Fishery Conservation and Management Act, supra, note 8. Most recently, § 58 of the Clean Water Act of 1977 extended from 12 to 200 miles the jurisdiction of the United States to assess clean-up costs for tanker oil spills. See Federal Water Pollution Control Act, §§ 1321(b)(3) and (f), ELR STAT. & REG. 42101.

25. S. REP. NO. 451, 92d Cong., 1st Sess. 15 (1971).

26. Id. It must be noted, however, that the House was more correct in recognizing that the authority contained in Title III was considerably broader in scope than that contained in the OCS Lands Act. The authority conveyed to the Secretary of the Interior by § 8 of the OCS Lands Act, 43 U.S.C. § 1337(a), to delete certain areas from proposed OCS mineral lease sales for lack of information, esthetic, environmental, geologic, or other reasons is exercised only on an ad hoc, case-by-case basis, does not protect deleted areas from inclusion in subsequent lease sales (or from other developmental activities), and is not tied to a program with a mission to comprehensively review marine areas to identify and protect sites of special value. Moreover, permanent withdrawals pursuant to § 12 of the OCS Lands Act, 43 U.S.C. § 1341, have only been utilized twice in 24 years: in 1960, when the Key Largo Coral Reef Preserve was established (Presidential Proclamation No. 3339, 25 Fed. Reg. 2352 (1960)), and again in 1969, with the establishment of the Santa Barbara Channel Ecological Preserve (Public Land Order 4587, 34 Fed. Reg. 5655 (1969)). The infrequency of use of these permanent withdrawals from mineral leasing might best be explained by the fact that no regulations or guidelines have ever been issued specifying eligiblity criteria for these withdrawals.

27. S. REP. NO. 451, 92d Cong., 1st Sess. 15 (1971).

28. The Conference Committee agreed that sanctuary regulations would be applicable to those foreign citizens subject to United States jurisdiction either by virtue of "recognized principles of international law" or as a result of specific intergovernmental agreements. H.R. REP. NO. 1546, 92d Cong., 2d Sess. 18 (1972).

29. October of 1972 may be the most remarkable month in the history of this nation's attempts to develop a balanced approach to the management of its natural resources. In that month — indeed within an 18-day period, from October 9 to October 27 — a plethora of environmental and natural resources legislation became law. This fertile period witnessed the establishment of three historic sites; the designation of four wilderness areas; the establishment of or additions to three national monuments; the establishment of a national wildlife refuge; and the establishment of a national seashore and three national recreation areas. In addition, comprehensive legislation was enacted to control water, noise, and pesticide pollution; to provide for the protection of marine mammals; and to establish state coastal zone planning programs. See SENATE COMM. ON INTERIOR AND INSULAR AFFAIRS, CONGRESS AND THE NATION'S ENVIRONMENT: ENVIRONMENTAL AND NATURAL RESOURCES AFFAIRS IN THE 92D CONGRESS, 93d Cong., 1st Sess., at 1105-23 (1973). Thus, the sentiment which led to the passage of the MPRSA was actually part of a larger response to develop mechanisms to better manage the nation's natural resources.

30. MPRSA, § 302(a).

31. Id. The implementing guidelines add research to the purposes for which a sanctuary may be designated (15 C.F.R. § 922.2), which is no doubt a reaction to the Senate Committee's emphasis on the research values of sanctuaries.

32. Id.

33. Id. § 302(b).

34. Id.

35. Id. § 302(c). The term "territorial jurisdiction" has been generally interpreted to mean only that area over which the United States exercises dominion and control as a sovereign power — that is, the territorial sea, which at present extends to the 3-mile limit. Cunard S.S. Co. v. Mellon, 262 U.S. 101 (1923).

36. MPRSA, § 302(e).

37. Id. § 302(f).

38. Id. § 302(g).

39. Id. § 302(f) (emphasis supplied).

40. For a comprehensive assessment of the federal consistency provisions contained in that Act and the resulting federal-state relations, particularly as they affect federal regulation of dredge or fill activities, see Blumm and Noble, The Promise of Federal Consistency Under Section 307 of the Coastal Zone Management Act, 6 ELR 50047 (1976). See also Brewer, Federal Consistency and State Expectations, 2 COASTAL ZONE MGMT. J. 315 (1976); and Hildreth, The Operation of the Federal Coastal Zone Management Act, as Amended, 10 NAT. RES. LAW. 211 (1977).

41. MPRSA, § 303. "Other appropriate relief" would seem to imply the authority necessary to compel restitution for damages to the sanctuary, including the costs of restoration.

42. Nevertheless, in the case of the Key Largo Coral Reef Marine Sanctuary primary on-site management responsibility has been delegated to the State of Florida. See text accompanying note 84, infra.

43. MPRSA, § 304.

44. Pub. L. 94-62 (1975); Pub. L. 94-362 (1976). For an authorizations appropriations history of the MPRSA, see CONGRESS AND THE NATION'S OCEANS: MARINE AFFAIRS IN THE 94TH CONGRESS, 95th Cong., 1st Sess. 210-11 (1977).

45. 15 C.F.R. § 922, 39 Fed. Reg. 23254 (June 27, 1974). Draft guidelines were issued on March 19, 1974 (39 Fed. Reg. 10255), six days after the Secretary of Commerce delegated authority to implement Title III to the Administrator of NOAA.

46. Habitat areas are defined as areas established "for the preservation, protection, and management of essential or specialized habitats representative of important marine systems." 15 C.F.R. § 922.10(a).

47. Species areas are established "for the conservation of genetic resources," in order to help contribute to the goal of maintaining "the widest possible diversity of and within species … for ecological stability of the biosphere and for use as natural resources." Id. § 922.20(b).

48. Research areas are to serve as "ecological baselines against which to compare and predict the effects of man's activities, and to develop an understanding of natural processes." Id. § 922.10(c)(2).

49. Recreational and esthetic areas are left largely undefined by the guidelines, which note only that they "will be based on esthetic or recreational value." Id. § 922.10(d).

50. Unique areas are established "to protect unique or nearly one of a kind geological, oceanographic, or living resource features." Id. § 922.10(e).

51. 15 C.F.R. § 922.1(b). The guidelines define multiple use as "the contemporaneous utilization of an area or resource for a variety of compatible purposes so as to provide more than one benefit." Id. at § 922.11(c). The guidelines further state that multiple use "implies the long-term, continued uses of such resources in such a fashion that one will not interfere with, diminish, or prevent other permitted uses." Id. The determination of which uses are compatible with sanctuary purposes is obviously a critical one in terms of protecting the integrity of the sanctuary. Unfortunately, there is little experience with making compatible use determinations in the marine environment.

52. See, e.g., remarks of Congressmen Mosher, Keith and Pelly, reprinted in U.S. ENVIRONMENTAL PROTECTION AGENCY, LEGAL COMPILATION: STATUTES AND LEGAL HISTORY, WATER, vol. III, Supp. (1973) at 1683, 1689, and 1720.

53. 15 C.F.R. § 922.2(b).

54. Id. §§ 922.1(c) and 922.20(c). The estuarine sanctuaries program was created by former § 312 (now § 315) of the Coastal Zone Management Act, 16 U.S.C. § 1461. In contrast to the broad mandate given to the marine sanctuaries program, the purposes for which estuarine sanctuaries may be established are quite narrow. They are "to serve as natural field laboratories in which to study and gather data on the natural and human processes occurring within the estuaries of the coastal zone." Id. To acquire and manage such sanctuaries the Secretary of Commerce is authorized to make available 50 percent matching funds to coastal states. See 15 C.F.R. § 921. Five estuarine sanctuaries have thus far been designated: (1) Sapelo Island, Georgia (which is the only sanctuary fully acquired and has been utilized for about 25 years to study natural wetland processes; (2) Coos Bay, Oregon (research and management have begun here although acquisition is only about 75 percent complete); (3) Waimanu Valley, Hawaii (acquisition has not yet begun); (4) Old Woman Creek, Ohio, which is located along Lake Erie (cyclical changes in estuarine processes will be studied here); and (5) Rookery Bay, Florida (acquisition has not yet begun). In all, approximately 25,000 acres are receiving estuarine sanctuary protection, about two-fifths the acreage protected by the Key Largo Coral Reef Marine Sanctuary alone.

55. 15 C.F.R. § 922.20(c). Pursuant to the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq., states and territories bordering on the oceans and Great Lakes are eligible for federal grants to develop and administer comprehensive land and water programs to better manage their coastal resources. Two elements required of all state CZM plans which may help to identify potential marine and estuarine sanctuaries are (1) an inventory and designation of "areas of particular concern" as required by § 305(b)(3), and (2) procedures whereby areas can be designated to preserve or restore conservation, recreational, ecological, or esthetic values, as required by § 306(c)(9). It should be noted that the Act defines the states' coastal zones as extending as far seaward as the extent of the territorial sea, or in Great Lakes' waters to the international boundary between the United States and Canada (§ 304(a)).

56. 15 C.F.R. § 922.20(a).

57. Id. § 922.20(b). This subsection requires that the nomination include the purposes for which the nomination is being submitted; the geographic coordinates of the site; plant and animal life in the area; geological characteristics of the area; and the present and prospective uses and impacts on the area and its resources. A nomination for a research sanctuary must also contain a specific scientific justification; a statement of how the research will aid in management decisions; and a history of prior research carried out in the area. Id. § 922.20(b)(2).

58. Id. § 922.21(a).

59. Id. § 922.22(b).

60. Id. §§ 922.21(b) and (c). Detailed information is to be developed on animal and plant life; geological features; weather and oceanographic conditions and features; present and potential adjacent land uses; and federal, state, and local laws that apply to the area.

61. Id. §§ 922.21(d) and 922.22(d). It should be noted, however, that the guidelines specifically limit the holding of public hearings to those nominations which have been determined to be "feasible." Id. § 922.22(d).

62. MPRSA, § 302(a). See test accompanying notes 32-38, supra.

63. 15 C.F.R. § 922.23.

64. Though the guidelines do not mention presidential approval, it is required by § 302(a) of Title III.

65. 15 C.F.R. § 922.24.

66. Id.

67. Id. § 922.25.

68. Id. §§ 922.31-.32, and MPRSA, §§ 303(a) and (b). See text accompanying notes 41-42, supra.

69. See text accompanying note 160, infra.

70. 15 C.F.R. § 922.22(b).

71. 15 C.F.R. § 924, 40 Fed. Reg. 21706 (May 19, 1975).

72. Id. § 924.3. Other prohibited activities include salvage or recovery operations (without a permit), dredging, trawling, and detonating explosives. Id.

73. Id. §§ 924.6(b), (c), and (d). Research permits, however, will only be granted on the condition that any information and/or artifacts obtained will be made available to the public. Id. § 924.6(e).

74. 15 C.F.R. §§ 924.6(b) and (c).

75. Id. § 924.8.

76. Pursuant to 14 U.S.C. § 89(a) the Coast Guard serves as the principal marine enforcement agent for all federal agencies and in that capacity is subject to the rules and regulations of the agencies responsible for administering particular federal laws.

77. Presidential Proclamation No. 3339, 25 Fed. Reg. 2352 (Mar. 17, 1960) (issued pursuant to the authority granted the President by § 12 of the Outer Continental Shelf Lands Act of 1953).

78. 15 C.F.R. § 929, 41 Fed. Reg. 2378 (Jan. 16, 1976). Final regulations have not been issued.

79. Id. § 929.4. The regulations also prohibit underwater construction, the removal of archeological or historic resources, the catching of tropical fish, the use of explosives, and certain motorboat and photographic activities that involve the installation of special settings.

80. Id. §§ 929.7(b) and (c). The criteria are similar to those of the Monitor regulations.

81. Id. § 929.9.

82. Id. § 929.4.

83. Id. § 929.5(a)(2).

84. Id. § 929.3(b).

85. Id.

86. Id. 929.5(a)(1).

87. 43 C.F.R. § 6224.5. BLM's authority to protect viable coral communities stems from § 5(a)(1) of the Outer Continental Shelf Lands Act, 43 U.S.C. § 1334(a)(1), which empowers the Secretary of the Interior to issue regulations to inter alia "conserve the natural resources of the outer continental shelf." At least one circuit court of appeals has affirmed that this authority extends to the protection of living as well as nonliving resources. Union Oil Co. v. Morton, 512 F.2d 743 (9th Cir. 1975).

88. Id. § 922.24. The final EIS on the Key Largo sanctuary did spell out the purposes for which the sanctuary was created. See U.S. DEPT. OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, KEY LARGO CORAL REEF MARINE SANCTUARY, FINAL EIS 7 (1976).

89. See text accompanying notes 39-40, supra.

90. 15 C.F.R. § 924.7 (Monitor); 15 C.F.R. § 929.8 (Key Largo). The program guidelines offer no clarification of the scope of the consistency requirement, they merely restate the statutory language and note that the individual sanctuary regulations will each contain a consistency procedure. 15 C.F.R. § 922.27.

91. See text accompanying notes 101-106, infra.

92. U.S. DEPT. OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, PLAN TO IMPLEMENT THE PRESIDENT'S MANDATE TO PROTECT OCEAN AREAS FROM THE EFFECTS OF DEVELOPMENT 2 (Aug. 16, 1977).

93. The motivating force behind the Palau nomination, submitted by organizations from Palau, the United States, and Japan, consisted of a Japanese proposal to construct a deepwater port to transport oil and gas from Indonesia.Efforts to secure approval for the oil port are described in Brower, To Tempt a Pacific Eden, One Large Oily Apple, 78 AUDUBON 56 (Sept. 1976). See also Hearing on the Palau Deepwater Port Before the Senate Committee on Energy and Natural Resources, 95th Cong., 1st Sess. (1977). The killer whale nomination, submitted by Sen. Warren Magnuson (D.-Wash.), was a response to a proposed superport at Cherry Point, Washington, which would receive Alaskan North Slope oil.

94. While NOAA's decision not to actively pursue the killer whale nomination appears to be a concession to the wishes of Washington Governor Dixie Lee Ray, Senator Magnuson has taken other steps to ensure that the proposed Cherry Point oil port will not be constructed. A provision which he attached as a rider to a bill extending the Marine Mammal Protection Act's funding authorization was recently signed into law.That provision explicitly precludes the siting of new oil facilities in the Puget Sound area. Pub. L. No. 95-136, § 5(b), 91 Stat. 1168, 33 U.S.C. § 476(b). See also 123 CONG. REC. S16228 (daily ed. Oct. 4, 1977, remarks of Sen. Magnuson).

95. Nominations in this category include: (1) the proposed Port Royal Sound Sanctuary in South Carolina, nominated by the Coalition for Lower Beaufort County; (2) the proposed Cape Lookout Bight and Shoals Sanctuary in North Carolina, nominated by the North Carolina Office of Marine Affairs; (3) the proposed Crystal River Sanctuary near King's Bay on the northern Gulf Coast of Florida, nominated by the Crystal River Protective Association; and (4) the waters adjacent to the counties of Santa Cruz, Monterrey, and San Luis Obispo, California, nominated by former Congressman Burt Talcott. The first and last of these nominations appear to have been motivated by developmental threats — the construction of a metal fabricating plant on the banks of Port Royal Sound and OCS mineral leasing off the California coast.

96. See text preceding note 70, supra.

97. Four such reports have been submitted to Congress. Only in the third report, however, is there an indication that a sanctuary nomination was rejected by NOAA — the proposed Crystal River Sanctuary. U.S. DEPT. OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, REPORT TO CONGRESS ON IMPLEMENTATION OF TITLE III, July 1974 to June 1975 (1975).

98. The Environment — The President's Message to Congress, 7 ELR 50057 (1977). For an analysis of the Message, see Comment, The President's Environmental Message: Better Regulatory Coordination, More Vigorous Enforcement, 7 ELR 10116 (1977).

99. 7 ELR at 50063.

100. Id. at 50061.

101. U.S. DEPT. OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, MEMORANDUM ON EXPANDED MARINE SANCTUARIES PROGRAM (Aug. 16, 1977).

102. "Imminent development" was interpreted by NOAA to embrace offshore or onshore activities likely to occur within 18 months, or where actions taken within 18 months could establish the likelihood of development. Offshore activities embraced OCS oil and gas development (including potential pipelines and tanker corridors); extraction of sand, gravel, manganese nodules, or other minerals; or the siting of energy facilities (including floating nuclear power plants). Onshore activities included facilities needed to service offshore industries; large energy production facilities (such as power plants, LNG facilities, and refineries); large industrial complexes; and new port facilities (including deepwater ports). U.S. DEPT. OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, PLAN TO IMPLEMENT THE PRESIDENT'S MANDATE TO PROTECT OCEAN AREAS FROM THE EFFECTS OF DEVELOPMENT, supra note 92, at 4-5.

103. Id. at 7.

104. Through February 1, 1978. Because certain areas were recommended by more than one entity, the number of sites is actually somewhat less than 169. U.S. DEPT. OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMIN., LISTING OF RECOMMENDED MARINE SANCTUARIES SITES IN RESPONSE TO THE PRESIDENT'S MESSAGE. It should be noted that of the 110 federal recommendations received, all were proposed by either the Department of the Interior or the Environmental Protection Agency; the National Marine Fisheries Service, which had recommended over 100 sites, withdrew its recommendations and has not yet resubmitted them. This withdrawal was apparently caused by opposition to some of the recommendations by two Regional Fishery Councils. See 8 COASTAL ZONE MANAGEMENT NEWSLETTER no. 38 at 5 (Sept. 21, 1977).

105. PLAN TO IMPLEMENT THE PRESIDENT'S MANDATE, supra note 92, at 7.

106. While the specific sites remain undetermined, NOAA anticipates that one nomination will be off the coast of Alaska, and one or two others off the California coast.

107. The staff at OCZM consists of only 75 persons, at least 25 fewer than was anticipated a year ago. Moreover, the Carter Administration's personnel ceilings call for maintaining that number at least through the end of fiscal year 1978. See 8 COASTAL ZONE MANAGEMENT NEWSLETTER no. 42 (Oct. 19, 1977).

108. Coastal zone management programs are being developed and administered pursuant to the Coastal Zone Management Act, 16 U.S.C. § 1451 et seq., which also authorizes OCZM to distribute a $1.2 billion fund to compensate states and localities for the adverse impacts of coastal and offshore energy development.

109. PLAN TO IMPLEMENT THE PRESIDENT'S MANDATE, supra note 92, at 2.

110. See generally 8 COASTAL ZONE MANAGEMENT NEWSLETTER no. 39 at 1 (Sept. 28, 1977), in which an August 24, 1977 memorandum from NOAA Administrator Frank to the Secretary of Commerce detailing the reorganization plan is described.

111. This is not to suggest, however, that the marine sanctuaries program should be isolated from coastal zone planning efforts. On the contrary, coastal zone planning can make important contributions to the identification and management of sanctuaries. See note 55, supra.

112. 42 U.S.C. § 4321 et seq., ELR STAT. & REG. 41009.

113. See, e.g., LIROFF, NEPA AND ITS AFTERMATH: THE FORMATION OF A NATIONAL POLICY FOR THE ENVIRONMENT (1977); and Symposium, Impementing NEPA's Substantive Goals, 6 ELR 50001 (1976).

114. See, e.g., Yost, NEPA's Progeny: State Environmental Policy Acts, 3 ELR 50090 (1973), Comment, Emerging State Programs to Protect the Environment: Little NEPA's and Beyond, 5 ENV. AFF. 567 (1976).

115. See, e.g., Mandelker, The Role of the Comprehensive Plan in Land Use Regulation, 74 MICH. L. REV. 900 (1976); and Sullivan and Kressel, Twenty Years After — Renewed Significance of the Comprehensive Plan Requirement, 9 URB. L. ANN. 22 (1975).

116. In response to this directive, NOAA commissioned the Center for Natural Areas to conduct a thorough review of the program and to recommend a comprehensive plan to more effectively implement it. The Center has to date produced three reports in this regard, many of whose recommendations are reflected in this section: AN ASSESSMENT OF THE NEED FOR A NATIONAL MARINE SANCTUARIES PROGRAM (1977) (critically analyzing the role that marine sanctuaries could play in marine resource decision making), AN ASSESSMENT OF ALTERNATIVE CONCEPTUAL FRAMEWORKS FOR THE NATIONAL MARINE SANCTUARIES PROGRAM (1977) (depicting various administrative options in mobilizing the program to fulfill its potential), and A DRAFT DETAILED MANAGEMENT PLAN FOR THE MARINE SANCTUARIES PROGRAM (1977) (recommending specific policies, objectives, resource requirements and an organizational structure to better implement the program).

117. See text accompanying note 104, supra.

118. These three activities are the principal responsibilities of the Office of Ocean Management.

119. However, NOAA's preparation of a programmatic EIS on the design, procedures, and content of RAMS is strongly recommended in order to afford interested entities and members of the public an opportunity to review and comment.

120. Cf. Hanley v. Kleindeinst, 460 F.2d 640, 2 ELR 20717 (2d Cir. 1972), cert. denied, 409 U.S. 990 (1972).

121. Agencies could be required to do so by an Executive Order.

122. See text accompanying note 140, supra.

123. See text preceding and following note 70, supra.

124. It would be possible, however, for nominators (which, of course, may include NOAA itself) to nominate an area only for RAMS status. Since the factual informatioin required of RAMS-only nominations will be less extensive than that required for formal sanctuary nominations, this might happen quite often.

125. In this manner the prioritization of nominations could serve as an effective means of justifying program budget levels to the Department of Commerce, the Office of Management and Budget, and the Congress. For example, if NOAA were able to demonstrate a considerable backlog of high priority nominations, a strong argument could be made for increases in budget requests and appropriation levels.It should be remembered that the lack of any specifically appropriated funds has been a principal cause of the program's slow development during its first five years.

126. See text accompanying notes 89-90, supra.

127. 15 C.F.R. § 924.7 (Monitor); Id. § 929.8 (Key Largo).

128. MPRSA, § 302(f).

129. Id. § 302(a).

130. Id. § 302(b).

131. Id. § 302(f) (emphasis added).

It should be noted that this language does not include the promulgation of regulations within the purview of the consistency certification. Thus, there exists the possibility that other federal, state, or local regulatory schemes could be developed without taking into consideration their effects on designated sanctuaries until the issuance of an authorization was requested. On the federal level, this prospective consideration of marine sanctuary impacts could be accomplished through the development of interagency agreements, the preparation of EIS's in connection with marine developmental activities, and the promulgation of an Executive Order. It may, however, be more difficult to effectively ensuresuch consideration on the state and local levels.

132. The first clause of § 302(f) states:

After a marine sanctuary has been designated under this section, the Secretary, after consultation with other interested Federal agencies, shall issue necessary and reasonable regulations to control any activities permitted within the designated sanctuary …

133. MPRSA, § 302(a).

134. Similar consistency provisions in other legislation have employed an "affecting" standard, rather than an arbitrary geographic criterion (i.e., within or without artificially established boundaries). In both § 307 of the Coastal Zone Management Act (see text accompanying note 40, supra) and § 102(a) of the MPRSA (describing criteria to be employed in evaluating ocean dumping permit applications) Congress noted the importance of considering the effects of proposed activities on certain areas regardless of the activity's location. Achieving the goal of preserving or restoring marine areas of special importance appears no less dependent on assuring the compatibility of external activities than effective coastal zone management or ocean dumping regulation.

135. These buffer zones, however, should not be the exclusive determiners of when consistency is to attach. Whenever an activity would affect the sanctuary, consistency certification should be required.

136. Massachusetts v. Andrus, __ F. Supp. __, 8 ELR 20187 at 20189 (D. Mass. Jan. 18, 1977) (granting a preliminary injunction against the Department of Interior's proposed Georges Bank lease sale).

137. Pursuant to the Fishery Conservation and Management Act, 16 U.S.C. § 1801 et seq.

138. See text accompanying notes 76 and 86, supra, regarding the Coast Guard's existing marine sanctuaries responsibilities.

139. Examples of marine areas managed by the National Park Service include the Virgin Islands National Park, which includes some 5,650 marine acres offshore of St. John Island; the Buck Island Reef National Monument, which includes 704 marine acres offshore of St. Croix Island in the Virgin Islands; and the Fort Jefferson National Monument, including over 47,000 marine acres offshore of the Dry Tortugas coral reef islands some 70 miles west of Key West, Florida.

140. The Carter Administration has already demonstrated its willingness to issue Executive Orders to provide for better federal management of natural resources. On May 25, 1977, five Executive Orders were issued, covering exotic organisms, floodplain management, off-road vehicles on public lands, wetland protection, and improvements in the EIS process. 42 Fed. Reg. 26944-68 (May 25, 1977).

141. Moreover, if an agency were to ignore or simply give lip service to the command of the Executive Order, its action could be challenged in court.

142. MPRSA, § 302(b).

143. Nominated sanctuaries in this category include the proposed Port Royal Sound sanctuary in South Carolina and the proposed Cape Lookout sanctuary in North Carolina. See note95, supra. It should also be noted that although it was never formally nominated, efforts to establish the area lying offshore of the Assateague Island National Seashore in Maryland and Virginia as a marine sanctuary were abandoned largely as a result of local opposition. The suitability of this area for sanctuary designation was discussed at length in NOAA's third annual report to Congress. See U.S. DEPT. OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, REPORT TO CONGRESS ON IMPLEMENTATION OF TITLE III, July 1974 to June 1975 (1975).

144. California recommended 10 areas; Washington, 4; Alaska, 1; Pennsylvania, 3; and New Jersey, 6. See NOAA's Listing of Marine Sites, supra note 105.

145. Florida has established 30 aquatic reserves which are designed to maintain submerged lands and associated waters of exceptional biological, aesthetic, and scientific value in their natural and existing conditions for posterity. FLA. ANN. STAT. §§ 258.35-46. Massachusetts has established five ocean sanctuaries under five separate legislative enactments. MASS. ANN. LAWS. ch. 132A, §§ 13-17. Hawaii's Natural Area Reserves system, which manages both land and water areas to protect unmodified habitats for public education and scientific research, has led to the establishment of the Ahihi-Kinau Natural Area Reserve, which has a marine component. HAW. REV. STAT. ch. 195. Marine Life Conservation Districts, such as that established at Hanauma Bay, are managed for the protection and conservation of marine life. HAW. REV. STAT. ch. 190.

146. Under the Coastal Zone Management Act, states pay one-fifth of the costs of planning and administering coastal zone programs and one-half of the costs of acquiring and managing estuarine sanctuaries. CZMA §§ 305, 306, and 315.

147. The general pattern of such delegation has involved requiring the states to adopt programs enforceable under state law if they wish to administer a given program. See, e.g., the authority of the Administrator of the Environmental Protection Agency to delegate permit responsibilities to states under §§ 402(b) and 404(g) of the Federal Water Pollution Control Act, 33 U.S.C. §§ 1342(b) and 1344(g), ELR STAT. & REG. 42101.

148. See, e.g., § 109(c) of the Marine Mammal Protection Act, 16 U.S.C. § 1379(c), which authorizes the Secretaries of Commerce and the Interior to enter into cooperative agreements with the states for the purpose of delegating the "administration and enforcement" of the federal program regulating the taking of marine mammals. See also Bean, supra, note 14, at 363, for a description of federal-state relations under this Act.

149. While the development of an interagency agreement with the Bureau of Land Management would make available criminal sanctions (and the accompanying authority to make arrests) in coral reef sanctuaries, it would not be useful in noncoral sanctuaries. See note 87 and accompanying text, supra. Consequently, legislation authorizing the levying of criminal sanctions is preferable.

150. It is not recommended, however, that the states be delegated the authority to assess and enforce federal criminal penalties.

151. Revised draft program approval regulations were recently published by NOAA (42 Fed. Reg. 43552, August 29, 1977).Interim final regulations are expected to be promulgated in February 1978.

152. The first fisheries grant issued by the Office of Coastal Zone Management pursuant to § 305 of the Coastal Zone Management Act was recently made to North Carolina for the purpose of developing a number of fisheries management programs in the state's nearshore waters. See 8 COASTAL ZONE MANAGEMENT NEWSLETTER no. 40 at 3 (Oct. 5, 1977).

153. See note 55 and accompanying text, supra.

154. See text accompanying and following note 70, supra.

155. See text accompanying notes 124-125, supra.

156. If public nominations were to be actively encouraged, the preparation of an EIS for each of the large number of nominations received would conceivably overtax the limited resources of the Office of Ocean Management and bring the entire process to a virtual standstill. Moreover, the act of listing a site on the RAMS may fall short of the threshold at which NEPA requires the preparation of an impact statement. Cf. Hanly v. Kleindienst, supra, note 120.

157. Since all sanctuary nominations placed on RAMS would receive a priority rating, an EIS on each may again unnecessarily delay evaluation of those areas receiving a high priority. However, the criteria used in assigning priorities should be the subject of an EIS. This EIS could be combined with that on the RAMS into a programmatic EIS on the entire program.

158. MPRSA, § 302(a).

159. This term has been interpreted to mean the territorial sea. Cunard S.S. Co. v. Mellon, 262 U.S. 101 (1923).

160. MPRSA §§ 302(c), (g).

161. Informal Negotiating Text, supra note 22, Articles 3, 33, and 56.

162. Fishery Conservation and Management Act, § 201, 33 U.S.C. § 1821.

163. Federal Water Pollution Control Act, §§ 311(b)(3) and (f), 33 U.S.C. § 1321. Although the language of the Conference Report is careful to limit the liability of foreign citizens to those who are "otherwise subject to the jurisdiction of the U.S.", this would nevertheless appear to apply to foreign fishing vessels within the 200 mile limit. H.R. REP. NO. 830, 95th Cong., 1st Sess. 91 (1977).

164. See, e.g., H.R. 3350, H.R. 4582, H.R. 6784, S. 2053, S. 2085, and S. 2168, 95th Cong., 1st Sess. (1977); see also Hearings of the Subcommittee on Oceanography and the House Committee on Merchant Marine and Fisheries on Deep Seabed Mining, 95th Cong., 1st Sess., Ser. No. 95-4 (1977).

165. For an overview of these principles, see CENTER FOR NATURAL AREAS, AN ASSESSMENT OF THE NEED FOR A NATIONAL MARINE SANCTUARIES PROGRAM, Appendix B (1977).

166. See note 136 and accompanying text, supra.

167. The Administration's commitment to the marine sanctuaries program was recently given more substantial support within the annual budget transmittal to Congress, which requested an appropration of $500,000 to fund the program for fiscal year 1979. BUDGET OF THE UNITED STATES GOVERNMENT 125 (1978), Id. at Appendix, p. 241. See also U.S. DEPARTMENT OF COMMERCE, BUDGET ESTIMATES FOR FISCAL YEAR 1979 at 213 (1978). Federal legislation is pending which would authorize an appropriation of $5 million to the program over the next two years. H.R. 10661, 95th Cong., 1st Sess. (1977).

168. The National Environmental Policy Act, Pub. L. 91-190, 83 Stat. 852 (codified at 42 U.S.C. § 4321 et seq.) was signed into law on January 1, 1970.

169. Forest and Rangelands Renewable Resources Planning Act of 1974, as amended by the National Forest Management Act of 1976, 16 U.S.C. §§ 1600-1614, ELR STAT. & REG. 41441, see Bean, supra note 14, at 157-61 and 176-87.

170. See note 14, supra.

171. Pursuant to the Fishery Conservation and Management Act of 1976, 16 U.S.C. § 1801 et seq., eight regional fishery management councils are each to prepare interim and final management plans to provide for the conservation and management of the nation's fishery resources within a 200-mile contiguous zone. This mandate to plan, however, should not be confused with the comprehensive planning taking place on terrestrial public lands, since it pertains to only one activity — fishing.

172. For example, the proposed Outer Continental Shelf Lands Act Amendments, S. 9, H.R. 1614, 95th Cong., 1st Sess. (1977), would, inter alia, require the Secretary of the Interior to develop a comprehensive mineral leasing plan for the outer continental shelf.

173. Marine Resources and Engineering Development Act of 1966, § 2(a), 33 U.S.C. § 1101(a).

8 ELR 50016 | Environmental Law Reporter | copyright © 1978 | All rights reserved