2
The Way Things Are Now

NATURE AND VALUE OF THE MARINE ENVIRONMENT

Since the beginning of civilization, the ocean has played a critical role in the well-being of humankind as a source of food, a medium of transportation, and a site for recreation, adventure, and inspiration. As the twentieth century draws to a close, increased scientific understanding, combined with more intense utilization of the ocean's resources, have revealed that the resources of the marine environment are greatly affected by human activities. The ocean and its bounty appear to be susceptible to the adverse effects of human abuse whether through conflicting uses, overutilization of specific resources, or destructive human activities that degrade essential marine functions.

The marine environment is different from the terrestrial environment in that many of the processes and functions critical to its integrity occur over very long distances and time scales. For example, the El Niño phenomenon of the Pacific Ocean, which is crucial to both the climate of California and the productivity of its coastal waters, behaves in markedly different ways depending upon global meteorological events. Earth's oceans vary greatly in density, salinity, and temperature, which results in the development of a wide variety of life forms that are different from each other and different from life forms on land (Norse, 1993). More than 90 percent of all classes of organisms live in the oceans, and nearly half of all phyla are marine phyla (Weber and Gradwohl, 1995).

Although we have a limited understanding of marine ecology and biological diversity, it is becoming increasingly apparent that the ocean is a rich and diverse habitat for life on earth (NRC, 1995c). Life forms and other resources of the marine environment offer substantial benefits to humanity. Critical coastal



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Striking a Balance: Improving Stewardship of Marine Areas 2 The Way Things Are Now NATURE AND VALUE OF THE MARINE ENVIRONMENT Since the beginning of civilization, the ocean has played a critical role in the well-being of humankind as a source of food, a medium of transportation, and a site for recreation, adventure, and inspiration. As the twentieth century draws to a close, increased scientific understanding, combined with more intense utilization of the ocean's resources, have revealed that the resources of the marine environment are greatly affected by human activities. The ocean and its bounty appear to be susceptible to the adverse effects of human abuse whether through conflicting uses, overutilization of specific resources, or destructive human activities that degrade essential marine functions. The marine environment is different from the terrestrial environment in that many of the processes and functions critical to its integrity occur over very long distances and time scales. For example, the El Niño phenomenon of the Pacific Ocean, which is crucial to both the climate of California and the productivity of its coastal waters, behaves in markedly different ways depending upon global meteorological events. Earth's oceans vary greatly in density, salinity, and temperature, which results in the development of a wide variety of life forms that are different from each other and different from life forms on land (Norse, 1993). More than 90 percent of all classes of organisms live in the oceans, and nearly half of all phyla are marine phyla (Weber and Gradwohl, 1995). Although we have a limited understanding of marine ecology and biological diversity, it is becoming increasingly apparent that the ocean is a rich and diverse habitat for life on earth (NRC, 1995c). Life forms and other resources of the marine environment offer substantial benefits to humanity. Critical coastal

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Striking a Balance: Improving Stewardship of Marine Areas Notice of beach closure because of pollution. Photo courtesy of the Marine Board. habitats provide spawning grounds, nursery areas, as well as shelter and food for finfish, shellfish, birds, and other wildlife. Approximately 85 percent of commercially harvested fish depend on estuaries and near coastal waters at some stage in their life cycle. Estuarine marshes provide natural buffers against floods and other episodic events. National Interests in the Ocean National interests in the ocean include protecting national security, facilitating domestic and international commerce, protecting and using sustainably the natural resources under public stewardship, and ensuring the health and safety of the American people. Each of these interests demands active and effective governance. Achieving a reasonable balance among these interests when they conflict, as they often do, poses an even greater challenge. For reasons discussed throughout this report, the operational focal point for improving marine area governance for the United States appears to be at the regional level (for example, the New England region or the Gulf of Mexico region). However, broader national interests, such as the ones listed below, can best be articulated and protected at the federal level:

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Striking a Balance: Improving Stewardship of Marine Areas fulfilling treaty obligations, such as obligations in the Law of the Sea Convention, that give other nations the freedom to use our EEZ for navigation and overflight1 fulfilling bilateral agreements with adjacent nations (Canada, Mexico, and the Bahamas) regarding marine boundaries, migratory resources, and other transboundary issues maintaining national security through the use of offshore military operation and exercise areas, weapons and missile testing areas, and other ocean-based facilities implementing federal laws where a national interest has been formally declared (e.g., protecting marine mammals and endangered species or meeting and maintaining federal standards of air and water quality) maintaining the freedom of interstate commerce ensuring that living marine resources in waters under federal jurisdiction are sustainably managed to protect the interests of future generations ensuring that the public secures an adequate and appropriate rate of return for the private use of publicly owned ocean resources under federal jurisdiction Value of Marine and Coastal Resources The security, commercial, stewardship, recreational, and other interests in the ocean reflect the value of marine resources and the services they provide to society. However, because of their public nature, many of the services rendered by marine resources are not directly marketable (that is, they are not traded in conventional markets where the value of resources and services can be determined through prices and quantities traded). For example, although people pay implicitly through travel and related expenses to get to a recreational site (Freeman, 1995), recreational uses of the marine environment, such as boating, fishing, and wildlife viewing, are essentially free (although parking and shore access may not be). Consequently, the importance of marine recreation, noncommercial marine species, and ecosystem functions and services are often underestimated. At the other extreme, some people assume that these "priceless" benefits warrant almost unlimited economic sacrifices. Unless realistic values are assigned to marine resources, it will continue to be difficult to strike an appropriate balance among competing ocean interests. But the marine environment cannot provide unlimited benefits. As coastal populations grow and incomes continue to 1   Although the United States has not formally ratified the 1982 Law of the Sea Convention, the United States has traditionally maintained that the convention (except Part XI on deep seabed mining) generally confirms existing customary international law and practice and is, therefore, binding on all nations. In 1994, President Clinton forwarded the convention to the Senate for advice and consent to accession. Thus, the United States is bound to act in ways that do not contravene the spirit and intent of the convention.

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Striking a Balance: Improving Stewardship of Marine Areas Snorkeling in the Florida Keys National Marine Sanctuary. Photo courtesy of William Eichbaum. rise, limiting demand is essential. Otherwise resources and services will inevitably be overexploited or their quality diminished. Estimates of marine resource values can inform decision makers and the public about the true costs (including lost resource values) of commercial development as well as the true costs of restricting commercial development in the interests of conservation and preservation. Estimating the economic value of resource services is one way of including economic factors in trade-off decisions, of assessing damages for liability or compensation, and of deciding whether investments in the management or enhancement of these resources are economically justifiable (Bingham, 1995). The case studies prepared for this report and other materials indicate that the economic value of recreation and the passive use services of the U.S. marine environment loom very large, so large that they overshadow the value of commercial uses in many regions. For example, tourism and recreation are by far the most valuable uses of the marine environment in the Gulf of Maine and in the Florida Keys (John, 1996a). The term value has several different meanings. For example, it can refer to a set of moral, ethical, or aesthetic judgments, or it can refer to economic worth. All of these meanings are relevant in marine governance, but most conflicts arise over economic trade-offs. The economic value of a marine resource is the value of the services it provides to people, in terms of their wants and preferences. These services may be provided directly, such as the opportunities a fish stock

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Striking a Balance: Improving Stewardship of Marine Areas affords for catching fish, or indirectly, such as the support marine habitats provide as fish spawning grounds. The economic value of a good service to the individual is the dollar amount a person is willing to pay for it. Techniques for Measuring Values The economic framework for valuing natural resources recognizes that natural resources, like capital assets, yield a flow of services (commercial, recreational, ecological, and nonuse). These services can be categorized as active use services, passive use services, or indirect use services. Active use services include well defined ''direct" and observable uses, such as recreational boating and fishing, commercial fishing, and navigation. Passive use services include the value individuals place on natural resources apart from their own identified, measured active uses. Passive use services are often further separated into bequest and existence use services. Bequest use services reflect the value associated with maintaining the availability of natural resources for use by others today and by future generations. Existence use services reflect the value individuals associate with protecting a resource and "just knowing it is there," even if no future use of the resource is envisioned. Indirect use services incorporate elements of active and passive use services. Indirect use services incorporate the value individuals place on a resource based on potential future active use. Consideration of future Pleasure sailing in Frenchman Bay, Maine. Photo courtesy of Katherine Wellman.

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Striking a Balance: Improving Stewardship of Marine Areas generations can be a component of indirect use services, although it is also integral to bequest use services as noted above. This component of indirect use services is sometimes referred to as option use services. In addition, indirect use services incorporate the values individuals associate with more passive use services, such as enjoying a site when driving, walking, or working nearby; and enjoying hearing about, reading about, or seeing photographs of a site. A perceived increase in human health risks may also fall within the category of indirect use services because it involves public perceptions regarding the risk that an event (e.g., containment failure of an in-water contaminated disposal facility) may occur and the public's willingness to pay to avoid it. A variety of techniques can be used to estimate people's willingness to pay for (or willingness to accept) marine resources and resource services even if no direct payment for them is required. These methods include the travel cost model, random utility model, hedonic price method, and contingent valuation. All of these methods have been tested in a number of studies related specifically to marine resources and resource services, especially marine recreation (Freeman, 1995) and commercial fisheries (Lynne et al., 1981; Bell, 1972, 1989). Studies have also been conducted linking water quality with the demand for various recreational activities (Kaoru et al., 1995; Bockstael et al., 1995). Less work has been devoted to estimating the willingness to pay for marine ecosystem functions and services and for passive uses. Ocean governance decisions and institutional mechanisms designed to make the best use of marine resources should take the relative values of different uses into account. When proposed uses of the resource conflict, such as the needs of recreational users and the dischargers of waste, the values at stake are not necessarily equal; closing an area to swimming because of pollution may have a much greater cost than closing an area to waste discharge because of swimmers. Similarly, restricting vessel traffic (or jet skiers) in the interests of wildlife viewers may have much lower costs than reducing whale or seabird populations in the interests of industry. Even though different users compete for precisely the same resource (marine waterways), the values they derive from the resource may differ greatly. Efficient and equitable governance depends on sound information about the economic values of the commercial and noncommercial uses of marine resources. Moreover, governing institutions should reflect these economic values. Typically, commercial users of marine resources—whether for transportation, fishing, or mineral extraction—are well organized and well represented in governance decisions. Recreational users and other nonconsumptive users of marine resources are typically, though not always, less well organized and less well represented in governance institutions and are sometimes excluded from decision making processes. Such imbalances almost inevitably result in management decisions that do not lead to the best uses of marine resources. Governing institutions and processes should ensure that the most valuable uses of marine resources are effectively represented.

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Striking a Balance: Improving Stewardship of Marine Areas The values of marine goods and services, although they are accepted as real and important in meeting human needs, are systematically underestimated because they are public goods and are not priced in the market place. Despite continued warnings from scientists about the long-term consequences of the overuse and degradation of marine resources, society in general, and policy makers in particular, have been reluctant to address the problem of the overexploitation of marine resources (Costanza et al., 1997). Unless some attempt is made to assign realistic values to marine resources and resource services, they will continue to be undervalued and used inefficiently. The rationale for estimating the monetary value (as opposed to the ecological value) of various marine resources is that they provide a means for deciding whether investments in the conservation, preservation, and management of these resources will improve the welfare of society. Knowing the value of resources and resource gives decision makers a better sense of the true costs of resource use and the true long-term benefits of preservation, conservation, restoration, or enhancement. Unfortunately, there is a general misconception that economics may skew the debate over the conservation or restoration of marine resources in favor of developers and users; a corollary of this misconception is that economic analysis will only illustrate the extent to which laws requiring the protection of marine resources affect the economy through reductions in economic activity (e.g., tax revenues, employment and income). In reality, accurate information concerning the economic value (as opposed to the economic effects) of marine resources, functions, and services can support the argument in favor of preservation, conservation, restoration, and enhancement by providing a more complete and accurate picture of short-and long-term costs and benefits (Costanza et al., 1997) Typically, economists have estimated the value of marine resources by concentrating on the components of the marine environment that have short-term obvious value to individuals (e.g., commercial and recreational fisheries, flood control by wetlands), which can be readily estimated with existing economic techniques. Frequently, values have been assigned to tangible, on-site resources services without regard to the underlying ecosystem. Bingham (1995) suggests that evaluating only those components of the ecosystem that are of immediate value to individuals, and focusing on short-term changes in the ecosystem, ignores changes in ecosystems that play out over time and space and that may be irreversible. Garrett Hardin's essay on the tragedy of the commons is the best known description of the inefficiencies likely to arise from unrestricted access to a resource. He pointed out that open access undermines incentives for sustainable use of a resource (Hardin, 1968) because each user expects that other users will harvest as much as they can if he himself does not. Hardin's solution, that government must intervene on behalf of commonly-owned resources, disregards the ability of local communities to create effective and sustainable governance regimes for controlling resources.

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Striking a Balance: Improving Stewardship of Marine Areas Marine areas face an extreme version of the tragedy of the commons. The tradition of freedom of the seas is a tradition not only of free access—i.e., a tradition that the ocean is a commons for all mankind—but also of weak or unclear governing authority. In recent years, national governments have extended their jurisdictions 200 nautical miles offshore under the international concept of the EEZ, and most nations (but not the United States) have ratified and/or became parties to the 1982 United Nations Law of the Sea Convention. Still, formal governmental authority offshore tends to be weaker and less well defined than it is on land. TRENDS IN MARINE AREAS Several trends (Bacon, 1996) suggest that pressures on marine areas are intensifying and that severe consequences for people and the marine environment will result unless there are changes in the management regime. These trends include: the increasing power of humans to affect the marine environment through both mechanical means (fish harvesting, dredging) and chemical means (contamination by chemical substances, including petroleum and endocrine receptors) global climate changes and their effects on sea level, the intensity and frequency of storms, rainfall distribution, and recreation the growth of coastal populations Although some studies have been done to estimate the value of recreational uses (including marine recreation) (Smith and Kaoru, 1990; Walsh et al., 1992), no database has been developed showing how the economic value of marine resources and resource services has changed over time. There are data, however, about contributions of coastal communities to the gross national product (GNP). One study, based on the assumption that the contribution of coastal communities to the GNP reflects a dependence on marine tourism, manufacturing, and transportation, came to the following conclusion: Based on payroll and employment, our estimates demonstrate that the coastal zone is a key economic sector that contributes more than 30 percent of the national GNP. Most of this value comes from the service sector, but even without that type of economic activity, the coastal zone accounted for some $55 billion in 1985. Our estimates also show that the coastal zone has become more important over time, growing from 30.1 percent of GNP in 1978 to 31.4 percent in 1985 (Center for Urban and Regional Studies, 1991). An examination of individual components of marine economic activity bears out these findings. For example, fish landings have shown modest increases in value at certain times. However, a closer look at the available information suggests that this trend will not continue because many fish stocks have declined

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Striking a Balance: Improving Stewardship of Marine Areas below the levels that support the maximum sustainable yield on a continuing basis (NOAA, 1997). The concern, therefore, is that the collapse of the New England groundfish industry, for example, could be a harbinger of the future of other fish stocks in the United States. One study has estimated, however, that if all fish stocks in the United States were managed properly, the potential net value of U.S. fisheries could be increased by $2.9 billion (Stroud, 1994). Another indicator of change is that although the number of recreational fishing trips in U.S. waters remained fairly constant throughout the 1980s, the estimated catch declined substantially—by nearly 30 percent (Council on Environmental Quality, 1992). Another disturbing trend is the increase in the number of closings of shellfish beds—from 13 percent in 1966 to 31 percent in 1985 to 37 percent in 1990 (Weber, 1995). Some trends in offshore oil leasing could also be disturbing in terms of the long-term, efficient utilization of marine resources. Since 1983, the percentage of offshore lands subject to moratoria on leasing has increased from about 3 percent to nearly 18 percent (Outer Continental Shelf Policy Committee, 1993). Although this trend reflects a genuine concern for protecting the marine environment, moratoria are a blunt governing instrument and may not result in the efficient long-term utilization of resources. Trends in the discharge of wastes into the marine environment suggest that there has been some reduction in the discharge of certain pollutants in recent years. NOAA's Mussel Watch program, which test mollusks and other organisms for selected pollutants, found a decrease between 1986 and 1993 in several compounds, such as DDT, PCBs, and metals like cadmium. At the same time, the number and volume of oil spills and other toxic spills also appears to have decreased (Bacon, 1996). An increase in discharges of nutrients from sewage treatment plants and agricultural runoff, and a resultant increase in the levels of eutrophication, is cause for concern. For example, Long Island Sound has shown steady deterioration for several decades, with areas of low dissolved oxygen increasing from 350 to 517 square miles just between 1985 and 1987. Similarly the concentration of nitrate from agricultural runoff doubled in the Mississippi River from 1960 to 1980, resulting in widespread areas of low dissolved oxygen in the north central Gulf of Mexico (Weber, 1995). Related data seem to indicate an increase in the amount of human waste discharged into the marine environment, causing a steady increase in the number of beach closings by states (Bacon, 1996; NRDC, 1996). The integrity and status of marine habitats are difficult to assess because of insufficient data; however, the available information suggests that the trends are negative in terms of the loss of wetlands (NRC, 1995c). For example, from the mid-1970s to mid-1980s, there was a 71,000-acre loss in salt marshes and a 6,000-acre loss in sea grass beds throughout the coterminous United States (Bacon, 1996). A high proportion of the marsh loss is associated with the delta system of the Mississippi. Coastlines and beaches provide habitats for a wide range

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Striking a Balance: Improving Stewardship of Marine Areas of marine life, including many threatened or endangered species. Natural erosion of these areas is aggravated by the construction of dams that impound sediment that would otherwise reach the shore and the blockage of naturally migrating inlets by structures that interfere with sediment transport (NRC, 1995a). Economic and environmental trends do not take place in isolation. There are strong synergistic effects among fisheries, habitat destruction, and pollution. Understanding the interactions among various human activities and developing comprehensive solutions is an important reason for improving marine area governance. These interactions are well illustrated in the case of the Chesapeake Bay, where human induced distortions in the cycling of nutrients is a major problem. The primary sources of increased nutrients since 1950 have been human waste from urban areas and runoff from agricultural lands and atmospheric deposition to the bay and its watershed. Nutrients have caused excessive algae growth and subsequent die off, which by blocking sunlight and lowering the level of dissolved oxygen, respectively, have resulted in a loss of underwater vegetation (Boynton et al., 1995). This vegetation had been a crucial element in the overall regulation of the nutrient cycle on a seasonal basis. The loss of vegetation added to the imbalance, which was further distorted by the loss of oyster populations in the bay (for a variety of reasons including overfishing and disease) (NRC, 1994b). The loss of oysters, which are filter feeders, has further diminished the ability of the bay to process nutrients. Ship discharging sewage sludge into the ocean. Photo courtesy of the Marine Board.

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Striking a Balance: Improving Stewardship of Marine Areas Shorebirds on marsh near Willapa Bay, Washington. Photo courtesy of Katharine Wellman. The Chesapeake Bay is only one example of the complex interactions between humans and the natural environment. This example demonstrates that the incremental decline of several resources simultaneously can result in the virtual collapse of an entire system. It also suggests that efforts at restoration are often complicated and must necessarily be integrated across a range of issues (NRC, 1994c). Conflicting Uses Satisfying the diverse needs and wants of a large, rapidly growing coastal population is extremely difficult in many parts of the United States by the fixed supply of coastal resources and space, by the limited capacity of natural ecosystems to assimilate human stressors, and by legal systems of property rights that often do not differentiate between private and public ownership. The country is facing a new class of coastal and ocean management problems that can be characterized as conflicts over the use, or nonuse, of finite coastal environmental resources; development versus protection; and public interest versus private property rights. Sometimes, well functioning markets can handle these conflicts. Sometimes, however, markets do not accurately reflect the impacts of activities on the environment or on other users. This is especially true in the marine

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Striking a Balance: Improving Stewardship of Marine Areas the Secretary of the Interior to lease federal offshore lands for mineral exploration, development, and production. It also gave the secretary a mandate to develop OCS oil and gas resources, but it provided for very limited input or influence from the states. Governance under the act was reasonably effective during the 1950s and 1960s when leasing and production were focused off the Texas and Louisiana coasts where the oil and gas industries had long been important to the local economy. Expansion into offshore waters seemed to be a natural extension of existing activities and was supported by an infrastructure that was already in place. Leasing federal lands along the Pacific Coast began in the early 1960s. After several years of exploration, a major oil reserve was discovered in the Santa Barbara Channel. In 1969, there was a blowout and oil spill at a platform in the channel. The ensuing environmental damage and the perceived arrogance of the responsible oil company attracted national attention. As a result, opposition to offshore oil and gas leasing spread. After the Santa Barbara incident, support for more stringent environmental safeguards and for giving states a stronger role in activities off their coastlines grew rapidly. The National Environmental Policy Act (NEPA) was passed in 1969, and the CZMA was passed in 1972 and amended in 1976. These two acts gave the states their first real voice in OCS decisions, although the primacy of the federal government was preserved. In response to the Middle East oil embargoes in 1973 and 1974, plans for a significant expansion in OCS leasing were developed. Numerous lease sales were planned in frontier areas, including Alaska, the Atlantic Coast, and the Pacific Coast, as well as in the producing areas in the Gulf of Mexico. This accelerated program increased environmental concerns. In 1978, the OCSLA was amended to give more consideration to environmental factors and to allow more state and local involvement in OCS decision making. However, once again, the federal government retained the right to accept or reject recommendations from state and local governments. The 1979, another disruption in oil supplies renewed the impetus to accelerate OCS development, which, in turn, raised the further widespread concerns about potential negative environmental and socioeconomic impacts, especially in frontier areas. After the Secretary of the Interior greatly increased the area proposed for offshore leasing, states and other groups turned to the annual congressional appropriations process as a means of influencing and controlling OCS activities. Starting in 1982, Congress enacted a series of one-year moratoria prohibiting the Department of the Interior from engaging in any activities in certain geographic areas (mostly offshore California). Between 1982 and 1993, the acreage covered by these moratoria grew from 0.7 million acres to 266 million acres. As a result of these moratoria, as well as economic factors, most offshore leasing has been concentrated in the Gulf of Mexico (although some areas offshore California and Alaska are being developed under leases acquired prior to the moratoria).

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Striking a Balance: Improving Stewardship of Marine Areas There are several opportunities for public participation throughout the federal leasing process. The current system provides opportunities for making decisions based on consultation and cooperation, but in practice this process has sometimes led to protracted controversies and conflicts especially along the West Coast. Fisheries Management Living marine resources currently support extensive commercial, recreational, and economic activities in all coastal areas. In 1995, commercial landings by U.S. fishermen were 9.9 billion pounds, valued at a record $3.8 billion. The 1995 U.S. marine recreational finfish catch was estimated at 339.1 million pounds taken on 65.5 million fishing trips (NOAA, 1996). These are just a few of the benefits Americans derive from living marine resources. However, many marine species are under stress from overexploitation or habitat degradation or both. More than a third of all fish stocks for which we have reliable information are overutilized, and nearly half are below optimal population levels (NOAA, 1997). Some marine mammals, turtles, and fish are in danger of extinction, and many more are threatened. Maintaining and improving the health and productivity of these species is essential to the sustainable use of marine resources as well as to the health and biodiversity of marine ecosystems. Many factors, both natural and human-related, affect the status of fishery stocks, protected species, and ecosystems. The Secretary of Commerce, through NOAA's NMFS (National Marine Fisheries Service), is responsible for the conservation and management of most of the living marine resources within the 200-nautical mile limits of the U.S. EEZ. NMFS also plays a supporting and advisory role in the management of living marine resources in coastal areas under state authority. Management and conservation plans are developed through extensive discussions with state and tribal officials, other federal agencies, fishermen, processors, marketers, public interest groups, universities, and the general public, as well as through partnerships with international science and management organizations. The 1976 Fishery Conservation and Management Act (FCMA), under which fisheries within the EEZ are regulated, established eight regional fishery management councils to prepare fishery management plans for the nation's fisheries. Members of these councils are appointed by the Secretary of Commerce, based on recommendations from governors of the states in each region, and represent diverse interests. Each council also includes nonvoting members from the U.S. Fish and Wildlife Service, the U.S. Coast Guard, and the U.S. Department of State. Fishery management plans developed by the councils are subject to approval by the Secretary of Commerce. In some cases, fishery management plans are developed directly by NMFS, with advice and comment from the public, including the regional councils.

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Striking a Balance: Improving Stewardship of Marine Areas Shrimp trawler, Appalachacola Bay, Florida. Photo courtesy of William Eichbaum. NMFS is responsible for preserving protected marine species through the Endangered Species Act, which protects species from extinction, and the Marine Mammal Protection Act, which promotes the maintenance of marine mammal populations at optimal levels. Under various statutes, including the Fish and Wildlife Coordination Act, NMFS can mitigate losses or damage to habitats vital to living marine resources. For example, NMFS reviews federal proposals that may affect habitat vital to living marine resources and makes recommendations for the adequate conservation of those resources. Recent revisions to the FCMA mandate an essential fish habitat program, and the Endangered Species Act and Marine Mammal Protection Act mandate the conservation of critical habitats of threatened and endangered species and marine mammals. The FCMA was the first major act to establish a decentralized marine management structure, and the system of regional councils remains firmly entrenched. The implementation of fishery management plans reinforces the decentralized regional council system. Many of the problems that surfaced early in the implementation of the FCMA persist in varying degrees: continued overfishing of certain stocks; an adversarial relationship between some of the fishery councils and NMFS; conflicts among user groups; the vulnerability of the fishery management process to delays and political influence; a lack of accountability; inconsistencies in state and federal management measures; and the adoption of unenforceable management measures (NRC, 1994a). A recent report by the Ocean Studies Board of the NRC (NRC, 1994a) identified four topics that Congress should address when restructuring the FCMA: the

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Striking a Balance: Improving Stewardship of Marine Areas overfishing (including the amount of commercial fishing and the definition of optimum yield); institutional structure (including management of fishery councils); the quality of fishery science and data; and an ecosystem approach to fishery management. To clarify lines of authority, the report found that the regional fishery councils should continue to bear responsibility for allocating and capitalizing controls for fisheries within their regions. The establishment of acceptable biological catches, however, was considered as a scientific determination that could be best made by having NMFS, state agencies, and other interested scientists provide their estimates of appropriate catch levels to the councils. A scientific advisory committee for each fishery council could then determine the acceptable catch levels so that the maximum yield of stocks could be sustained over the long-term. The 1996 reauthorization and amendments to the FCMA addressed the four recommended topics. The basic institutional structure and role of the regional fishery councils in the preparation of fishery management plans and proposed regulations was retained. The qualification for membership on the regional councils was not changed; however, the conflict of interest standards were tightened. The definition of optimum yield was changed to require rebuilding overfished stocks. The regional councils are now responsible for preparing plans, amendments, or regulations to end overfishing and the replenish stocks within 10 years. If a council fails to meet the one-year deadline, the Secretary of Commerce has Local salmon trawlers, Deception Pass, Whidbey Island, Washington. Photo courtesy of Katharine Wellman.

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Striking a Balance: Improving Stewardship of Marine Areas the authority to adopt interim measures to address overfishing in any fishery. The amendments do not make clear, however, if the Secretary has the authority to act without a majority vote of a council. The amendments present a mixed picture with respect to controls on capitalization. They specifically authorize using individual fishing quotas (IFQs) to control fishing and catches. However, they impose a moratorium until October 1, 2000, on the Secretary's approval or implementation of new programs for assigning individual fishing rights. The amendments require the National Academy of Sciences to prepare a comprehensive report on IFQs by October 1, 1998, including recommendations for a national policy. The new legislation also establishes a program for identifying and protecting essential fish habitats and requires the regional councils and NMFS to assume a more active role in this area. The amendments also require steps to minimize fish mortality from by-catch. In summary, the 1996 amendments clearly recognize the need for better governance and management, and they provide a basis for improving governing institutions and management tools. Improvement, however, will depend on the willingness of fishery councils, the NMFS, the states, and the fishing industry to break old patterns of operation. The recommendations for improved governance and management in Chapters 5 and 6 of this report suggest how this might be accomplished. State Ocean and Coastal Management Programs Changes in U.S. laws and policies in the last decade have given states greater influence over ocean use and activities. At the same time, states have taken steps to increase their capacity for ocean management through policy development, and in a few cases, through policy implementation. The trend toward increasing state involvement will probably continue because many new vehicles for state participation in ocean affairs are now in place. Growing state influence over ocean use can be observed in five categories: coastal zone management, oil pollution control, OCS oil and gas development, governance of NMSs, and fisheries management. In each category, the role of the federal government is still important, sometimes even primary, but the influence of state and local interests and their areas of jurisdiction have increased. Under the CZMA, state governments are encouraged to develop programs for controlling land and water uses in coastal areas and three miles seaward. One of the powers given to the states, called the ''federal consistency" power, gives state governments more authority to review activities at the federal level that affect land, water, or natural resources, even if they occur well outside of the state's coastal zone. The President can overrule a state, but only if a judicial ruling has been made that consistency is not possible. This means that states now have considerable influence over federal activities in the ocean well beyond the three-mile boundary (Eichenberg and Archer, 1987).

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Striking a Balance: Improving Stewardship of Marine Areas The second category of increasing state influence over ocean activities is oil pollution control. By 1978, there were four major laws establishing oil pollution control, cleanup, liability, and compensation.2 But the key issue was whether the new rules should preempt states' rules. The Exxon Valdez oil spill in 1989 led to the passage of the Oil Pollution Act of 1990 (OPA 90) which preserved state oil pollution laws (Mitchell, 1991). Thus, the federal government is responsible for establishing minimum standards for oil transportation and safety, but many states have established their own standards that exceed those of the federal government. Many states impose penalties and fines and have established requirements for liability insurance, the removal of obstructions and pollutants, and the establishment of trust funds.3 The third category that illustrates growing state influence over ocean use is in the area of OCS exploration, leasing, and development. In the last decade, the United States has experienced what might be called "a 10-year war" between the lower 48 states and the federal government over OCS oil and gas development (Hershman et al., 1988). Many of the proposed leases were highly controversial and were adamantly opposed by the states. Ultimately, state interests won out over federal interests because the authority of the MMS was undermined by a variety of factors, such as congressional moratoria, special requirements added to appropriation bills, special study requirements, requirements for particular procedures for environmental impact statements, and others (Fitzgerald, 1987; Kitsos, 1994; Lester, 1994). The fourth category relates to the federal NMS program. Although national NMSs are designated, staffed, and partly funded by the federal government, many of them have been established in response to strong local pressures, coupled with congressional influence over the designation process. NMSs have been used as vehicles for resolving local environmental problems, such as conflicts over oil and gas development, shipping, and the disposal of dredged material. In other words, the objectives of establishing the sanctuaries are often local or regional, rather than national.4 2   The Federal Water Pollution Control (Clean Water) Act Amendments of 1972 (33 U.S.C.S. §§ 1251 et seq., see § 1321); The Deep water Port Act of 1974 (33 U.S.C.S. § § 1501 et seq., see § 1509, 1517 (liability)); Outer Continental Shelf Lands Act Amendments of 1978 (43 U.S.C.S. § § 1331 et seq., see § 1341 (a)–(d)); Trans-Alaska Pipeline Authorization Act of 1973 (43 U.S.C.S. §§ 1651 et seq., see § 1653). 3   In 1990, the state of California enacted the Lempert-Keene-Seastrand Oil Spill Prevention and Response Act, which set up state vessel inspection programs, oil spill contingency plans, an Oil Spill Response Trust Fund, and an Oil Spill Prevention and Administrative Fund to assist in oil cleanup in state waters (Cal. Gov. Code @ 8670.1 et seq.). The Washington state legislature established a marine safety office in 1991, an agency of the state government, responsible for promoting the safety of marine transportation in Washington (RCW 43.21I.010) 4   The Flower Garden Banks National Marine Sanctuary, located 120 nautical miles south of Cameron, Texas, was designated in November 1991. It specifically prohibits oil and gas development (P.L. 102-251, Title 1 § 101, 106 Stat. 60). The Stellwagen Bank National Marine Sanctuary was designated by Congress in November 1992, encompassing 638 square nautical miles of federal waters situated on and around the bank, 6.3 nautical miles north of Cape Cod, Massachusetts. It specifically prohibits sand and gravel mining (P.L. 102-587, Title II, Subtitle B, § 2202, 106 Stat. 5048). Monterey Bay National Marine Sanctuary was designated by Congress in September 1992, encompassing an area approximately 4,024 square nautical miles off the coast of central California. It specifically prohibits oil and gas development (P.L. 102-368, Title I, § 102, 106 Stat. 1119). The Olympic Coast Marine Sanctuary was designated in August 1994; oil and gas development are specifically prohibited (P.L. 100-627)

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Striking a Balance: Improving Stewardship of Marine Areas The fifth and final category illustrating the increase in state influence over ocean use is fisheries management. The FCMA was the first major marine policy to establish a decentralized management structure that included state officials, as well as experts nominated by governors of the states in the councils. The system of regional councils has been firmly entrenched since 1977, and the implementation of fishery management plans has reinforced the decentralization of the regional council system. Changes in the States' Capacity to Manage Marine Areas The growing influence of state governments over ocean use is one measure of change in U.S. ocean governance and management policy. Another measure is the "capacity" to manage. Capacity is defined as the ability and commitment of a jurisdiction to develop, staff, and sustain institutions that deal with marine policy issues (King and Olson, 1988). In the past 10 years, the capacity of some state governments has grown, and in one case at least, the capacity of local governments has grown as well (Hershman et al., 1988).5 Federal management capability is still substantial but, in some sectors, is not growing and could be declining relative to the recent increase in state and local responsibilities imposed by new laws.6 Ten states7 might be considered "activist" states because they have initiated measures in the past decade to improve their capacities for ocean management and have attempted to define a greater role for themselves in national decisions concerning ocean resources. Some activist states have expanded established programs, such as the CZM program, and some have undertaken new initiatives. 5   Santa Barbara County, California, has been active in overseeing many aspects of offshore oil development, and its staff and budget have increased. 6   Since 1980, federal funding for marine-related programs has steadily declined. In particular, funding has decreased for agencies like the National Oceanic and Atmospheric Administration, which controls coastal zone management, marine sanctuaries, and fisheries management programs and plays in important role in the oil pollution and outer continental shelf oil and gas programs. Recently, proposals to eliminate the U.S. Department of Commerce have been introduced in Congress, including eliminating NOAA and redistributing many component programs (H.R. 1756, 104th Congress, 1st Session, 1995). 7   Alaska, California, Florida, North Carolina, Hawaii, Maine, Massachusetts, Mississippi, Oregon, Washington.

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Striking a Balance: Improving Stewardship of Marine Areas Several trends have contributed to the increasing importance of state ocean policies. The first and most important was the aggressive state response to OCS leasing policies, which were a major source of contention between federal and state governments. States used their powers under OCSLA and CZMA, as well as in the congressional budget process, to force reconsideration of federal administrative actions. Under current arrangements, states shoulder many of the environmental risks associated with OCS development but share few of the financial benefits. The level of controversy was greatly reduced by a policy shift in June 1990, which scaled back the OCS program and delayed the sale of many leases. The second trend involves the development of state-level policy reports and studies defining ocean management issues. Because states felt that the federal government was only concerned with oil, gas, and minerals development, they attempted to step in and fill the vacuum. In the mid-1980s, North Carolina published a policy report (North Carolina Marine Science Council, 1984) and held a follow-up workshop. Oregon (Good and Hildreth, 1987) and Washington (Butts, 1988) soon followed North Carolina's lead. In the late 1980s, Hawaii (Hawaii Ocean and Marine Resources Council, 1988), Florida (Christie, 1989), and California8 issued a second wave of studies and plans. Alaska was added to the list after the completion of a comparative study of West Coast states (Cicin-Sain, 1990). Mississippi (McLaughlin and Howorth, 1991) and Maine (Catena, 1992) are the latest states to release ocean policy reports. All 10 policy reports explore models for ocean management that would increase their capacity and prepare them for a policy dialogue with the federal government. Finally, state ocean policy initiatives are part of a larger national trend of states taking the lead in many policy initiatives (Osborne, 1988; Bowman and Kearney, 1986; John, 1994). Throughout the 1970s, states were asked to take on greater responsibilities for implementing federal legislation, such as the Clean Air Act of 1970, the Clean Water Act of 1972, and the CZMA of 1972. In the 1980s, changes in administrative policy shifted responsibility from the federal government to state governments in response to pressure to reduce the federal budget. This trend has resulted in increased state institutional capacity to address problems and an overall decentralization of policy making in the United States (Bowman and Kearney, 1986). Although the state initiatives indicate interest and enthusiasm for ocean planning and management on the part of many states, the results have been modest. Efforts by the states have been intermittent and inconsistent. Many have been characterized by organizational changes and funding problems. For example, North Carolina, Florida, California, and Hawaii have shifted responsibility for ocean planning among various state agencies; Maine and North Carolina have simply updated existing policy reports after many intervening years; Missis- 8   California Ocean Resources Management Act of 1990. Cal. Pub. Res. Code 36,000 et seq.

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Striking a Balance: Improving Stewardship of Marine Areas sippi, Florida, and Washington have done virtually nothing since 1991. Delays and redirected efforts can be attributed partly to changes in the OCS oil and gas leasing policy for the lower 48 states. In 1990 and 1991, the federal government delayed the sale of OCS oil and gas leases for a decade, removing the sense of urgency felt by Washington, Florida, Massachusetts, Maine, and North Carolina (each of whom faced the prospect of offshore development) and slowing policy planning. States have also depended heavily on existing federally-funded programs to develop their ocean-related policies. Each of the states discussed above has a federally approved CZM program, which provides some funding for ocean planning, and more importantly, gives the state federal consistency powers. In addition, six of the ten states have offshore NMSs and participate extensively in the NMS program (which also provides substantial funding for sanctuary management, research, and education). Thus, although states are trying to shift policy away from the federal level, the vehicle for change is an existing federal program. This has important implications for the future. Because policies are still being developed, it is difficult to see trends clearly. But it is clear that environmental protection is being given priority over oil and gas development, marine mining, ocean waste disposal, vessel movements, aquaculture, and other intensive or industrial uses. Oregon and Washington have adopted broad policies favoring renewable over nonrenewable resources. Washington, California, and Florida have convinced federal agencies to ban oil and gas development in NMSs. Massachusetts and California have placed tight restrictions on the disposal of dredged materials and other wastes in the marine sanctuaries off their shores. Furthermore, California and Florida have adopted zoning controls to limit jet skiing. Existing fisheries have been given protected status in state-level ocean management policies. For example, even sophisticated ocean management plans like the Oregon Ocean Plan do not propose changing fisheries policy or management. Even though substantial issues have been raised concerning allocation, conservation, by-catch, and impacts on the ecosystem, states have generally been unwilling to address these issues outside the established fisheries management institutions. However, there maybe small signals of change. In 1990, for example, California passed a fish-sanctuary law that prohibits fishing within four small harbor areas (Hildreth, 1995). States have also responded to the concerns of recreational fishermen, who often press for restrictions on commercial fisheries. Even though policy development among the states has been slows and distinct trends are hard to discern, the states now play a significant role in ocean policy making. State roles have been institutionalized in at least three ways—through state CZM programs, participation in the development and staffing of NMSs, and the emergence of regional groups, such as fisheries management councils and oil pollution task forces. This institutionalization suggests that state policies will continue to influence how the ocean is used in the future.

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Striking a Balance: Improving Stewardship of Marine Areas NEED FOR BETTER GOVERNANCE Despite the many programs and regulations that affect coastal and marine resources, areas, and activities, there are no basic principles or processes for establishing authority and accountability in the management of marine resources and the uses of ocean space. In other words, there is no coherent national system. The United States tends to manage its ocean resources and space on a sector-by-sector regulatory basis. On law, one agency, and one set of regulations may be applicable to a single-purpose regime (e.g., oil and gas development, fisheries, water quality, navigation, or protecting endangered species), and a single ocean area may be subject to a plethora of regulatory management regimes. The single-purpose, overlapping, uncoordinated laws that generally characterize the present system in which various local, state, and federal agencies manage ocean resources do not account for the effects of any single activity on other resources or the environment, assess cumulative impacts, or provide a basis for resolving conflicts. In the absence of an overarching governance system, parties seeking to use ocean resources and space for economic purposes and parties concerned with environmental preservation often reach a stalemate. The delays inherent in this approach often have significant societal and economic costs. The fragmentation of governmental agencies and responsibilities is both horizontal and vertical. At the present time, management of the marine environment is carried out at local, state, regional, and national (and, in some cases, international) levels of government. At any given level, various functions are carried out by a wide array of separate agencies and organizations, with limited or sporadic coordination. As a result, many situations are poorly or inefficiently managed, and conflicts can be solved with great difficulty, if at all. Sometimes this fragmentation means that important issues, rather than receiving too much attention, fall through the cracks of various jurisdictions. For example, although a number of agencies purport to exercise partial responsibility for the management of marine habitats, the question of habitat protection as a whole may simply not be addressed. Fragmentation also means that real or potential conflicts either among governmental requirements or among proposed users are often not anticipated, and when they emerge, they cannot be resolved effectively. In the absence of a coherent, coordinated system, opportunities are lost and resources are squandered. The environmental and economic health of the nation's marine areas are linked at the individual, community, state, national, and international levels. The interdependence of the economy and the environment are widely recognized by government agencies, economic users of the ocean, and the general public. The nation has moved beyond the early concepts of health, safety, and pollution control as added costs of doing business to a concept of broader stewardship, recognition that economic and social prosperity would be meaningless if the coastal environment is compromised or destroyed in the process (President's Council on Sustainable Development, 1996).

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Striking a Balance: Improving Stewardship of Marine Areas Despite the history of sector-based management of marine resources, some legislation, including the CZMA, the CWA, the OPA 90, admonish federal agencies, as well as states, to preserve, protect, develop, enhance, and, where possible, restore the resources of the U.S. coastal zone. In the din of conflicting voices advocating different interests, one can sometimes hear a faint call for balance. Better marine governance would include the recognition of conflicts among users in marine areas. Better understanding and recognition of property rights, the value of public goods, and the links between the ecological and economic systems could lead to more efficient use of resources and the expansion of nonintensive uses, such as ecotourism and recreation.