September 20, 2005

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The ocean policy seminar will meet again next week on Tuesday the September 20th from 4:30-6:00 in the smith conference room. We will have beer and pizza again for all those interested in attending.

Topic:  As an out growth of Andy Solow's talk last week (notes now on the MPDG web site) which covered the 'Ivory tower' world of decision making described by economics, I have done some research on the frame work of our government within which ocean policy is applied. My hope is that in sharing this with you it will provide a point of reference as we discuss new issues.  Under whose jurisdiction does a particular issue lie? By what authority can the government change the behavior of the interest groups? What existing federal agencies would be involved in enforcing such a new policy?

To highlight the point look at this graphic from the US Commission on Ocean Policy. It shows the departments and independent agencies which play a roll in federal regulation of the ocean. It includes 11 of the 13 presidential cabinet level departments and four of the major agencies.

If I have your attention and this is something you are interested in here are a couple options. I will give a quick list of references that I have found to be most useful bellow.  You can check these out yourself or just come to the talk on tuesday. If you want to do some more reading before you get there (I don't claim to be an expert so please help me) keep reading here and on your own.

As a start take a look at two resources, the final report of the US Commission on Ocean Policy. Most the the WHOI departments have at least one copy of this book sitting around. If you glance at the list of participants you might notice a few names you recognize.

A second resource is the NOAA web site given below
http://www.csc.noaa.gov/opis/

It has links to most of the major federal and state legislation regarding ocean policy including some discussion. It is a good way to get a handle on the breadth of paper out there already. This is policy far from the ivory tower where interest groups disagree.

The document which dictates how these controversies are decided is the US Constitution and the ninth and tenth amendments which describe the powers of the federal governments, the states and the people. It is worth a quick read as we go through the process of picking two new members of the supreme court, but also for the marine policy class.

The following is a summary of what I have found out about 6 of the most important pieces of federal legislation regarding the ocean. Links to the web sites of the relavent agencies can be found at the end of the text.

See you on Tuesday
David







Outer Continental Shelf Lands Act of 1953



Goals and responsible agencies:
 

The Secretary of the Interior has designated the Minerals Management Service (MMS) as the agency responsible for the mineral leasing of submerged outer continental shelf (OCS) lands and for the supervision of offshore operations after lease issuance. The principal federal legal authorities for the development of ocean energy resources are the Outer Continental Shelf Lands Act (OCSLA) and the Deep Water Royalty Relief Act.

The OCSLA established federal jurisdiction over submerged lands on the OCS seaward of state boundaries. Under the OCSLA, the Secretary is responsible for the administration of mineral exploration and development of the OCS. The OCSLA empowers the Secretary to grant leases to the most highly qualified responsible bidder(s) on the basis of sealed competitive bids and to formulate such regulations as necessary to carry out the provisions of the OCSLA. The OCSLA provides both guidelines for implementing an OCS oil and gas exploration and development program, and authorities for ensuring that such activities are safe and environmentally sound. The OCS oil and gas leasing and development program consists of five distinct phases: (1) five-year leasing program; (2) individual lease sales; (3) geological and geophysical exploration; (4) plans for explorations; and (5) development and production. The basic goals of the OCSLA include the following:
    •     Establish policies and procedures for managing the oil and natural gas resources of the OCS that are intended to result in expedited exploration and development of the OCS in order to achieve national economic and energy policy goals, assure national security, reduce dependence on foreign sources, and maintain a favorable balance of payments in world trade
    •     Preserve, protect, and develop oil and natural gas resources of the OCS in a manner that is consistent with the need (a) to make such resources available to meet the nation's energy needs as rapidly as possible; (b) to balance orderly resource development with protection of the human, marine, and coastal environments; (c) to ensure the public a fair and equitable return on the resources of the OCS; and (d) to preserve and maintain free enterprise competition
    •     Encourage development of new and improved technology for energy resource production, that will eliminate or minimize risk of damage to the human, marine, and coastal environments
    •     Provide opportunities for state and local government participation in policy and planning decisions made by the federal government relating to exploration for, and development and production of, minerals on the OCS.

Section 8(g) of the 1985 amendments to the OCSLA resolved a dispute over how the federal government shares revenues with affected states. The amendments mandated that 27 percent of all revenues from production within 3 miles seaward of the federal/state boundary be given to the states (43 U.S.C. §1337(g)). They also set a schedule for distribution on revenues placed in escrow pending settlement of any jurisdictional disputes between the federal and state governments (Sources: Year of the Ocean Discussion Papers 1998, Marine Law Institute University of Maine 1992).

Short excerpts from the OCSLA

Production will be regulated by the federal government:
 'to the same extent as if the outer Continental shelf were an area of exclusive Federal jurisdiction located within a state:'

State taxation laws shall not apply to the outer Continental Shelf.

The bidding shall be by sealed bid and, at the discretion of the Secretary, on the basis of—
(A) cash bonus bid with a royalty at not less than 121⁄2 per centum fixed by the Secretary in amount or value of the production saved, removed, or sold;





The National Environmental Policy Act of 1969

Goal:

From EPA web site:
 

The National Environmental Policy Act (NEPA) requires federal agencies to integrate environmental values into their decision making processes by considering the environmental impacts of their proposed actions and reasonable alternatives to those actions. To meet this requirement, federal agencies prepare a detailed statement known as an Environmental Impact Statement (EIS). EPA reviews and comments on EISs prepared by other federal agencies, maintains a national filing system
for all EISs, and assures that its own actions comply with NEPA.

From CEQ web site:


Congress established CEQ within the Executive Office of the President as part of the National Environmental Policy Act of 1969 (NEPA). Additional responsibilities were provided by the Environmental Quality Improvement Act of 1970. In enacting NEPA, Congress recognized that nearly all federal activities affect the environment in some way and mandated that before federal agencies make decisions, they must consider the effects of their actions on the quality of the human environment. NEPA assigns CEQ the task of ensuring that federal agencies meet their obligations under the Act. The challenge of harmonizing our economic, environmental and social aspirations has put NEPA at the forefront of our nation's efforts to protect the environment.


Responsible Agency:

The Environmental Protection Agency and the Council on Environmental Quality are the two agencies in the federal government which act to implement NEPA. NEPA is an act governing the actions of the many agencies and departments in the federal government requiring them to comply with a standard of national environmental policy.


Excerpt:


Purpose

Sec. 2 [42 USC § 4321].

The purposes of this Act are: To declare a national policy which will encourage productive and enjoyable harmony between man and his environment; to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man; to enrich the understanding of the ecological systems and natural resources important to the Nation; and to establish a Council on Environmental Quality.

CONGRESSIONAL DECLARATION OF NATIONAL ENVIRONMENTAL POLICY

Sec. 101 [42 USC § 4331].

(a) The Congress, recognizing the profound impact of man's activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

(b) In order to carry out the policy set forth in this Act, it is the continuing responsibility of the Federal Government to use all practicable means, consistent with other essential considerations of national policy, to improve and coordinate Federal plans, functions, programs, and resources to the end that the Nation may --
     1.      fulfill the responsibilities of each generation as trustee of the environment for succeeding generations;
     2.      assure for all Americans safe, healthful, productive, and aesthetically and culturally pleasing surroundings;
     3.      attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences;
     4.      preserve important historic, cultural, and natural aspects of our national heritage, and maintain, wherever possible, an environment which supports diversity, and variety of individual choice;
     5.      achieve a balance between population and resource use which will permit high standards of living and a wide sharing of life's amenities; and
     6.      enhance the quality of renewable resources and approach the maximum attainable recycling of depletable resources.
(c) The Congress recognizes that each person should enjoy a healthful environment and that each person has a responsibility to contribute to the preservation and enhancement of the environment.
The  OCS Lands Act requires the  Department of  the Interior (DOI) to prepare a 5-year program that specifies the size, timing and location of areas to be assessed for Federal offshore natural gas and oil leasing.  It is the role of DOI to ensure that the U.S. government receives fair market value for acreage made available for leasing and that any oil and gas activities conserve resources, operate safely, and take maximum steps to protect the environment.




Coastal Zone Management Act of 1972

Goal:
 
     1.      The National Coastal Zone Management (CZM) Program. The CZMP is a unique federal-state partnership for protecting, restoring, and responsibly developing the nation's important and diverse coastal communities and resources. This is the mission of the National CZM Program and its 33 state and territory-based Coastal Management Programs. Through NOAA's responsibilities under the CZMA, the OCRM works with the coastal and Great Lakes states and U.S. island territories to develop and implement these Coastal Management Programs. Under these Programs, states and territories agree to work toward balancing the conservation and development of coastal resources using state and territorial management authorities, thereby providing for the sustainable development of the nation's coasts.
     2.      The National Estuarine Research Reserve System. Estuaries - the fragile fringe along the coasts where fresh and saltwater mix - are some of our most important coastal resources. Keeping estuaries healthy is vital for keeping our coasts healthy, but this requires an understanding of how estuaries function. Through the reserve system, OCRM works with the coastal states and territories to set aside representative estuaries for long-term research, education and stewardship. Twenty-five National Estuarine Research Reserves have been designated in coastal states. The NERRS provides data and information to Coastal Management Program managers so that they can make better decisions about how to balance coastal conservation and development in their states and territories.

Responsible Agency:
To carry out NOAA's responsibilities under the Coastal Zone Management Act, the OCRM works directly with coastal states and territories to support the development of new Coastal Management Programs and National Estuarine Research Reserves, provide technical and financial assistance to coastal program and reserve operations, undertake projects with program-wide or system-wide benefits, integrate information from all of the Coastal Management Programs and National Estuarine Research Reserves to support activities at the national level, and promote coastal stewardship on a variety of critical coastal issues.

Authority of the federal government:
The CZMA is a carrot and stick act. In terms of economic theory which Andy described at our last meeting, the government pays the states to alter their behavior because the states have the rights according to the constitution.

Excerpts:
 

Coastal Zone Management Act Of 1972
§ 1451. Congressional findings (Section 302)
The Congress finds that--
(a) There is a national interest in the effective management, beneficial use, protection, and development of the coastal zone. 

(b) The coastal zone is rich in a variety of natural, commercial, recreational, ecological, industrial, and esthetic resources of immediate and potential value to the present and future well-being of the Nation.

(i) The key to more effective protection and use of the land and water resources of the coastal zone is to encourage the states to exercise their full authority over the lands and waters in the coastal zone by assisting the states, in cooperation with Federal and local governments and other vitally affected interests, in developing land and water use programs for the coastal zone, including unified policies, criteria, standards, methods, and processes for dealing with land and water use decisions of more than local significance.


 

Magnuson-Stevens- Fishery Conservation and Management Act of 1976

Goal:
see excerpts bellow


Responsible Agency and history:
The 1976 enactment of the Fishery Conservation and Management Act (FCMA; 16 U.S.C. 1801-1882; Pub. L. 94-265, as amended; later renamed the Magnuson Fishery Conservation and Management Act for the late Senator Warren G. Magnuson) ushered in a new era for U.S. marine fisheries management. The FCMA was signed into law on April 13, 1976, after several years of debate on the merits of, and various approaches to, extended fisheries jurisdiction. On March 1, 1977, fisheries resources within 200 miles of all U.S. coasts came under Federal jurisdiction, and a multifaceted regional management system began allocating harvesting rights, with priority given to domestic enterprises. Exclusive Federal management authority was vested in NMFS, within NOAA of the Department of Commerce. The 200-mile fisheries conservation zone was superseded by an EEZ, proclaimed by President Reagan on March 10, 1983.

Under provisions of this Act, eight Regional Fishery Management Councils were established for the New England, Mid-Atlantic, South Atlantic, Caribbean, Gulf of Mexico, Pacific, Western Pacific, and North Pacific regions. Regulations relating to Regional Council activities and operations are published in 50 C.F.R. Parts 601 and 605. The eight Councils prepare fishery management plans (FMPs) for those fisheries, both commercial and recreational, which they determine to require active Federal management.

Authority of the Federal Government:
I am not sure where in the constitution the federal government finds the authority for this act. Is it through the interstate commerce law?
The MSFMCA is an extractive conservation law designed to "provide optimum yields."


Excerpts:


SEC. 2. FINDINGS, PURPOSES, AND POLICY 16 U.S.C. 1801

(a) FINDINGS.--The Congress finds and declares the following:

(1) The fish off the coasts of the United States, the highly migratory species of the high seas, the species which dwell on or in the Continental Shelf appertaining to the United States, and the anadromous species which spawn in United States rivers or estuaries, constitute valuable and renewable natural resources. These fishery resources contribute to the food supply, economy, and health of the Nation and provide recreational opportunities.
(5) Fishery resources are finite but renewable. If placed under sound management before overfishing has caused irreversible effects, the fisheries can be conserved and maintained so as to provide optimum yields on a continuing basis.




 



Endangered Species Act 0f 1973:

Goal:
To protect endangered and threatened species from extinction as a consequence of economic growth and development untempered by adequate concern and conservation. Ultimately the species should recover to the point that it may be removed from the endangered species list.


Responsible Agencies:
The Fish and Wildlife Service, in the Department of the Interior, and the National Oceanic and Atmospheric Administration (NOAA) Fisheries, in the Department of Commerce, share responsibility for administration of the Endangered Species Act.

Authority of the Federal Government:
This law provides for the federal government to monitor its own activity which might adversely affect an endangered species. Where species exist outside federal jurisdiction the act provides for the government to provide "finical assistance and a system of incentives" to conserve an endangered species.

Excerpt:
 

Findings, Purposes, and Policy
SEC. 2.

(a) FINDINGS.-The Congress finds and declares that-
(1) various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;

(2) other species of fish, wildlife, and plants have been so depleted in numbers that they are in danger of or threatened with extinction;

(3) these species of fish, wildlife, and plants are of aesthetic, ecological, educational, historical, recreational, and scientific value to the Nation and its people;

(4) the United States has pledged itself as a sovereign state in the international community to conserve to the extent practicable the various species of fish or wildlife and plants facing extinction, pursuant to-
(A) migratory bird treaties with Canada and Mexico;
(B) the Migratory and Endangered Bird Treaty with Japan;
(C) the Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere;
(D) the International Convention for the Northwest Atlantic Fisheries;
(E) the International Convention for the High Seas Fisheries of the North Pacific Ocean;
(F) the Convention on International Trade in Endangered Species of Wild Fauna and Flora; and
(G) other international agreements; and

5) encouraging the States and other interested parties, through Federal financial assistance and a system of incentives, to develop and maintain conservation programs which meet national and international standards is a key to meeting the Nation's international commitments and to better safeguarding, for the benefit of all citizens, the Nation's heritage in fish, wildlife, and plants.

(b) PURPOSES.-The purposes of this Act are to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved, to provide a program for the conservation of such endangered species and threatened species, and to take such steps as may be appropriate to achieve the purposes of the treaties and conventions set forth in subsection (a) of this section.

(c) POLICY.-
(1) It Is further declared to be the policy of Congress that all Federal departments and agencies shall seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act.

(2) It is further declared to be the policy of Congress that Federal agencies shall cooperate with State and local agencies to resolve water resource issues in concert with conservation of endangered species.
 




Marine Mammal Protection Act of 1972

Goal:
The Act includes a general moratorium on the taking and importing of marine mammals, which is subject to a number of exceptions. The Act also established the Marine Mammal Commission and provides the authority under which the Commission operates.

Responsible Agency
The Commission is primarily an oversight and advisory body. Although federal agencies are not required to adopt the Commission’s recommendations, the Marine Mammal Protection Act specifies that an agency that declines to follow any such recommendations is required to provide detailed written explanations to the Commission within 120 days.

Authority of the Federal Government:
See questionable reference to interstate commerce at the end of 5).
The MMPA is a species preference law. We want as many marine mammals as possible because we like them.

Excerpt:

Findings and declaration of policy

sec 2. The Congress finds that-

(5) marine mammals and marine mammal products either—
    (A) move in interstate commerce, or
    B) affect the balance of marine ecosystems in a manner which is important to other animals and
    animal products which move in interstate commerce,
and that the protection and conservation of marine mammals and their habitats is therefore necessary to insure the continuing availability of those products which move in interstate commerce; and

6) marine mammals have proven themselves to be resources of great international significance, esthetic and recreational as well as economic, and it is the sense of the Congress that they should be protected and encouraged to develop to the greatest extent feasible commensurate with sound policies of resource management and that the primary objective of their management should be to maintain the health and stability of the marine ecosystem. Whenever consistent with this primary objective, it should be the goal to obtain an optimum sustainable population keeping in mind the carrying capacity of the habitat.








Much of the text I have compiled here came from the following links. Please keep reading and you can tell me all the things I get wrong next week!
David

Links:

US Constitution
http://www.law.cornell.edu/constitution/constitution.overview.html

NEPA
http://ceq.eh.doe.gov/nepa/nepanet.htm
www.epa.gov


OCSLA
http://www.mms.gov/

http://www.csc.noaa.gov/opis/html/summary/ocsla.htm


CZMA
http://coastalmanagement.noaa.gov/aboutocrm.html


ESA
The Fish and Wildlife Service in the Department of the Interior and the NOAA Fisheries Service in the Department of Commerce share responsibility for administration of the Endangered Species Act.

http://www.fws.gov/endangered/


MMPA
http://www.mmc.gov/


MS-FCMA
http://www.nmfs.noaa.gov/
 

 

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Last updated September 15, 2005
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