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26 Ocean L. Memo 1 (1985)

handle is hein.journals/ocoaslme26 and id is 1 raw text is: Ocean and Coastal Law Center * School of Law - University of Oregon * Eugene 97403 Ocean Law Me1o Issue 26 March 1, 1985 NATIONAL MARINE SANCTUARY PROGRAM REAUTHORIZED: PAST PROBLEMS AND FUTURE PROSPECTS INTRODUCTION On October 19, 1984 President Reagan signed legislation amending and reauthorizing the National Marine Sanc- tuary Program through fiscal year 1988-- Title III of the Marine Protection, Research and Sanctuaries Act (MPRSA), 16 U.S.C. 5 1431 et. seq. The legislation authorizes the Secretary of Commerce to designate distinctive ocean areas as marine sanctuaries to be managed in accordance with regulations promulgated by the Secretary. The program is admin- istered by the Sanctuary Programs Divi- sion of the National Oceanic and Atmo- spheric Administration (NOAA). Although simple in theory, the designation of sanctuaries has been difficult in practice. To date only six sanctuaries have been designated. Oppo- sition to the program has at times been severe, and several attempts have been made to repeal the legislation. The brunt of the opposition has come from segments of the petroleum and fishing industries due to potential use restric- tions within particular sanctuaries. This Memo analyzes the 1984 amend- ments and discusses the program's future operation. In an attempt to place the 1984 amendments in perspective, the program's evolution is retraced in some detail. THE 1972 LEGISLATION Initial proposals for marine sanc- tuary legislation sought to protect sensitive marine resources by prohibit- ing oil and gas development in certain ocean areas. These proposals were mainly a reaction to the 1969 Santa Barbara oil spill. While these early bills failed to pass, a marine sanctuary program was finally enacted in 1972 as Title III of MPRSA. The original Title III was notable for its brevity and its broad delegation of authority to the Secretary of Com- merce. The central provision of the statute provided: The Secretary, . with the approval of the President, may designate as marine sanctuaries those areas of the ocean waters, . . which he determines necessary for the purpose of preserving or restoring such areas for their conservation, recre- ational, ecological, or es- thetic values. Aside from certain consultation and public hearing requirements, the statute lacked any further guidelines or crite- ria for the designation process. There were, however, some geographical re- strictions. Sanctuaries could be desig- nated in coastal waters from the high water mark to the outer edge of the continental shelf. The Great Lakes and their connecting waters were also eligi- ble for designation. Another provision recognized the need for negotiations with other governments if a sanctuary included areas outside U.S. territorial waters. State governors could disap- prove sanctuary designations in state waters, which generally extend three miles offshore. After designation the Secretary of Commerce retained substantial regulatory power. The legislation directed the Secretary to issue necessary and reason- able regulations to control any activi- ties within a sanctuary. Moreover, no other permit, license, or other authori- zation was valid unless the Secretary certified the activity consistent with the Sanctuary's purpose. Issue 26 March 1, 1985

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