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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