RL32486 - Marine Protected Areas (MPAs): Federal Legal Authority
22-Oct-2008; Adam Vann; 29 p.
Update: Previous Releases:
October 29, 2007
June 6, 2007
February 4, 2005; Author: Aaron M. Flynn
October 5, 2004
Abstract: Recent events, including the release of the President’s U.S. Ocean Action Plan and reports issued by the United States Commission on Ocean Policy and the Pew Oceans Commission, have prompted a reexamination of U.S. ocean policy and debate over an “ecosystem approach” to ocean resource management. One proposed mechanism for conserving ocean resources is the Marine Protected Area (MPA), conceptualized as a zoning system for the portions of the ocean under U.S. jurisdiction. This has been highlighted by the recent issuance of the Draft Framework for Developing the National System of Marine Protected Areas (Draft Framework), issued on September 22, 2006, by National Marine Protected Areas Center, part of the National Oceanic and Atmospheric Administration (NOAA). The introduction of H.R. 21 in the 110th Congress has also focused attention on the health of ocean resources.
The relative merits and the potentially negative consequences of such an MPA system have been widely discussed. Advocates of additional protection argue that a more comprehensive system as outlined in the Draft Framework should be established. Others argue that the current system is effectively managing ocean resources and that additional restrictions would be economically harmful.
Apart from the relative merits of each position, there is some question as to the applicability of current federal law to the oceans and whether new protections could be imposed administratively, without additional legislation. To some extent, regulatory authority depends upon the nature of the jurisdiction that the United States has claimed over various ocean resources vis-a-vis other nations and vis-a-vis the states. Consistent with international law, the United States claims jurisdiction over marine areas extending 200 nautical miles from its coast and has regulated resources in the zones composing this area under multiple legal authorities.
Several current laws which might provide authority for the creation of MPAs are aimed specifically at the ocean environment. The National Marine Sanctuary Program, established by the Marine Protection, Research and Sanctuaries Act, the Magnuson-Stevens Fishery Conservation and Management Act, and the Coastal Zone Management Act each specifically contemplate various levels and forms of aquatic resource protection.
Additionally, certain generally applicable laws, while primarily intended for use on land, would arguably support the designation of an MPA in some circumstances. Indeed, U.S. MPAs within the territorial seas have been established as national monuments, national parks, national wildlife areas, and, most recently, as a reserve via executive order.
This report outlines U.S. jurisdiction over ocean resources and analyzes the existing laws to assess their application to marine environments.