RS20810: Marine Protected Areas: An Overview

Jeffrey Zinn and Eugene H. Buck

Senior Analysts in Natural Resources Policy Resources,
Science, and Industry Division

February 8, 2001

RS20810

Introduction

The concept of marine reserves or marine protected areas (MPAs) has long been discussed in academic and environmental circles. The concept had been loosely defined, and different interests have sought to apply it to various goals. A recent National Research Council study, for example, identified four possible protection goals for MPAs: conserve biological or habitat diversity; manage fisheries; provide ecosystem services; and protect cultural heritage. 1

Many discussions of the concept look to comparable terrestrial efforts both to serve as models, and to develop a better understanding of differences between terrestrial and marine locations in physical characteristics and processes, and resource protection needs. Protection efforts on land have a longer and richer history, and are more extensive and more diverse. However, as marine resource health problems continue to expand and multiply, a growing community of interests is seeking to protect and restore marine resources from environmental degradation or overuse. These problems include declining commercial fishing stocks and marine mammal populations, wide-spread degradation of corals, and others. The Clinton Administration responded to this community's calls for action with initiatives and support for increased funding.

Discussions of the concept of MPAs have usually have centered on controlling uses that are incompatible with identified values or restoring declining populations of certain species at specific locations. Marine resource uses generally increase in number and intensity as one approaches the coast. Therefore, the greatest pressures on marine resources are concentrated within national (and state) waters, and protection efforts (including MPA-like designations) have been concentrated in these areas as well. In contrast, the overall ocean was viewed as "boundless" and able to accommodate all uses until fairly recently. This view has contributed to widespread support for treating the ocean beyond national boundaries as common property where no nation can claim territory or resources. It has also led to arguments over how to manage common property resources and who should benefit when those resources are exploited. As the marine environment is increasingly viewed as limited rather than boundless and as technological advances enable users of it to extract larger volumes of resources and to alter it more extensively, some users may be unwilling to reduce their activities to protect the whole. If a decision is made to establish MPAs, one question is the appropriate level of protection. There is a continuum of possible options between no or few restrictions on access or uses and prohibiting all access and potential uses. Many supporters of MPAs view these designations as a way to protect the integrity of entire resource system rather than individual species or components. Selecting an option is challenging in marine environments, where often little is known about conditions, and it is difficult and expensive to observe and measure them.

Terrestrial analogies appear not to apply smoothly to marine situations because of these differences. The wilderness concept, for example, is usually applied on land where there is little sign of human alteration, and often in places where there is little potential for large-scale activity. Most of the areas considered for MPAs already have had extensive human use, and this becomes the source of pressure for designation. In those places, the management goal is typically restoration, which may require efforts beyond the mere act of site designation. Programs designed especially for the marine environment would thus seem likely to be more effective than those first designed for and implemented at terrestrial sites and then extrapolated to marine areas.

Another question in using MPAs is selecting an approach to protection. The approach may reflect the answers to several questions. Should MPAs emphasize protecting sites where resource degradation has occurred, or sites that represent a diversity of environments? Should particular species or ecosystems be protected? Should restoration be a major activity at MPAs? Within MPAs, which uses should be allowed, which ones should be prohibited, and are there some that could be allowed under some but not all circumstances? Should access be either limited or controlled?

Proposals to designate certain areas as MPAs may be attractive in the abstract, but they often have been controversial when attempted. Proposals under the National Marine Sanctuaries Program, which is the closest of all federal programs to the MPA concept, have generated controversy. The process for designating sanctuary sites often has been contentious as interests who would have their uses limited by the designation oppose it either because they believe they are not the cause of problems or because they state that they can adopt acceptable practices. Some proposed sites have been rejected because of an inability to resolve these debates.

The most contentious topic often is fishing. Fishing presents complicated scientific and economic questions, and those complications are amplified by the political strength of the recreational or sports and commercial communities. Questions include: whether commercial and recreational fishing should be treated differently; whether certain types of fishing that either harvest too efficiently or have too many destructive aspects should be limited or prohibited; and whether fishing should be limited to certain seasons or to a certain number of participants. Other topics that are often raised include vessel anchoring, pollutant and other discharges, protecting endangered species and marine mammals, and collecting of specimens.

Current Laws and Programs

Current federal laws and programs to protect marine areas are limited in number and scope. The list can vary with one's definition of MPAs. With the exception of the marine sanctuary program, these laws are rather imprecise fits with the MPA concept, however defined, because of the limited geographic reach or the limited number of uses or activities that are controlled. Preservationists might view the most far-reaching law, the Wilderness Act, as a model, but almost all user groups fear that such designations would largely eliminate their activities. The following laws allow designation of protected areas in the marine environment; most apply to coastal sites.

National Marine Sanctuaries Act. (16 USC §§ 1431et. seq.) This law, which comes closest to creating what many envision as an MPA, is used to designate specific sites for comprehensive and coordinated conservation and management, including limiting or prohibiting incompatible activities. Thirteen sanctuaries have been designated, ranging in size from less than a nautical square mile to more than 100,000 square miles. Each site was designated for a specific reason, ranging from protecting cultural artifacts to entire ecosystems. Particularly contentious questions have centered on which activities will be allowed and under what circumstances.

Coastal Zone Management Act. (16 USC §§1451 et. seq.) This law established the National Estuarine Research Reserve System. The 25 sites that have been designated represent the estuarine ecosystems of the country (including the Great Lakes) and are suitable for long-term research, conservation, and education programs. Incompatible uses are generally limited. Restoration is a goal at many of these sites. The sites are intended to provide a system that can be used for coordinated and comparative research of coastal waters around the country.

Magnuson-Stevens Fishery Conservation and Management Act.(16USC §§ 1801-1883) This law established federal fishery management authority, including the authority to close areas to fishing to protect spawning and rearing populations. Closures, which are often a response to overfishing, maybe of some duration or permanent, and they may affect some or all fishing activity. Closures are usually made on the recommendation of a Regional Fishery Management Council. Complete closures remain uncommon, but partial closures, which might limit gear used, amount of fishing effort allowed, or time in which fishing is allowed, are becoming more common. The effectiveness of these controls, as measured by changes m fish populations, has generated controversy about the limits of self-policing, and thereby called into question the effectiveness of the Councils. National Wilderness Preservation System (Wilderness Act). (16 USC §1131) This law permits Congress to designate areas already under the jurisdiction of federal land management agencies into a system to preserve natural conditions. Marine areas beyond state boundaries are under federal control, and could be eligible. But any suggestion of using this authority in the marine environment has been very controversial because almost all uses appear to be either potentially or actually incompatible with the basic purpose of wilderness preservation. In terrestrial areas, use of motorized vehicles, let alone more intensive uses, is prohibited. This level of protection is feared by many who now benefit from resources within potential marine areas. (See CRS Report 98-848, Wilderness Laws: Prohibited and Permitted Uses.)

National Park Service Organic Act. (16 USC §§ 1,2-4) This law created the National Park Service to administer units of the National Park System, both to preserve the lands and resources and to foster public use and enjoyment. An estimated 30 to 40 System units in coastal areas have significant marine components. Each unit has its own management structure; some limits on use may be established in law. Given the Park Service's dual mandate of preservation and use, it should not be surprising that preservationists often seek higher levels of protection than the Service has provided. National Wildlife Refuge System. (16 USC §668dd) This law establishes areas for the primary purpose of conservation offish and wildlife, and allows other compatible uses. Fishing and hunting are allowed at most refuges. Many of the refuges are along the coasts, and perhaps their most important functions for marine areas are providing habitat for migratory birds and nursery areas that support key components of the marine ecosystem.

Other Protection Efforts. Many other laws affect the quality of the marine environment by regulating activities. These laws set minimum environmental quality standards or protect certain elements of the marine environment rather than designate areas for use or protection. Particularly noteworthy laws in this group include the Endangered Species Act, the Clean Water Act, and the Marine Mammal Protection Act. Further complicating this topic are many state laws and numerous international agreements and conventions that have MPA components. MPA activity has been extensive in some other countries. The National Research Council document cites a study reporting almost 1,500 MPAs around the world in 1994, with many more under study.

Recent Administration Actions

The Clinton Administration focus on MPAs began when it issued Executive Order (EO) 13089 on coral reef protection in June 1998. In late 1999 and early 2000, it issued action plans 2 calling for the federal government to work with state, territorial, and non- governmental partners to expand and strengthen MPAs throughout the United States. On May 26,2000, the Clinton Administration issued EO 13158 entitled "Marine Protected Areas." 3 This order established a MPA Center within NOAA to coordinate activities, and called for an expanded effort to protect areas representing the diverse marine ecosystems within U.S. waters. 4 This order directed federal agencies to use existing authorities to: 1) strengthen the management, protection, and conservation of existing MPAs and establish new or expanded MPAs; 2) develop a scientifically based, comprehensive national system of MPAs representing diverse U.S. marine ecosystems and cultural resources; and 3) avoid causing harm to MPAs through federally conducted, approved, or funded activities. The Order designated the Departments of Commerce and the Interior jointly to lead these efforts. The MPA Center is to develop a framework for studying and assessing marine environments and prioritizing protection needs, and a list of candidate sites to be considered for MPA status. As of December 1,2000,215 sites had been identified (more than 50% of which are managed by the Fish and Wildlife Service).

The MPA Center, located in Washington, DC, is supported by two institutes: the Institute for MPA Science, whose creation at a new federal fisheries research facility in Santa Cruz, California was announced by Secretary of Commerce Norman Mineta on October 18, 2000; and the Institute for MPA Training and Technical Assistance in Charleston, South Carolina, announced by NOAA in early January 2001.

The National Research Council (NRC) report on MPAs, mentioned above, discusses the scientific basis and value of MPAs. Among its conclusions were that MPAs can only be successful: if the participation of all stakeholders is enlisted; if effective planning and design are provided; and if regular monitoring, assessment, enforcement, and community education are assured. The report endorsed using MPAs as fishery management tools in combination with, but not a replacement for, traditional management measures. The report identified the limited experience of resource managers in determining the costs and benefits of MPAs over more conventional management approaches as a major concern. On December 4,2000, President Clinton issued EO 13178, creating the Northwestern Hawaiian Islands (NWHI) Coral Reef Ecosystem Reserve. This reserve, encompassing about 131,800 square miles, is the largest protected area ever created in the United States. Within the overall reserve, 15 Reserve Preservation Areas were designated where all consumptive or extractive activities are limited. NOAA will manage the Reserve under the authority of the National Marine Sanctuaries Act.

Government entities have been active in recognizing MPAs. In one example, the EPA Administrator signed a proposed rule on January 19, 2001that would establish four Special Ocean Sites to protect outstanding values of 1) Flower Garden Banks off Texas, 2) Gorda Ridge-Blanco Fracture Zone off Oregon, 3) Escanaba Trough off California, and 4) Northern Right Whale Critical Habitats off the Atlantic coast. In a second example, several Regional Fishery Management councils are actively investigating options for marine reserves, and the North Pacific Fishery Management Council designated a marine reserve in Southeast Alaska. 5

Issues for Congressional Consideration

Authority for the Northern Hawaiian Islands Reserve (NWHI) Designation. Some critics have questioned whether the Clinton Administration exceeded its authority in declaring the NWHI designation. Although other National Marine Sanctuaries have been created administratively, none approaches the size of this reserve. 6 Indeed, earlier designations have set aside a portion of a valued resource, rather than an entire ecosystem. Questions that might arise could focus on whether there are or should be any size limits or other restrictions on Presidential designation authority.

Resolution of Use Conflicts. Additional questions have arisen over whether the process for resolving use conflicts in MPAs is adequate and appropriate. The NRC report notes the importance of engaging all stakeholders in Grafting management of MPAs. However, the NWHI Reserve was created by Executive Order with little time available for public input on what uses should be restricted in what parts of the area. Elements of the commercial fishing industry, in particular, use large portions of the new Reserve, yet were not involved in deciding what areas should exclude fishing. If stakeholder involvement is indeed crucial, how will such participation be assured?

Need for New Legislation. If it is decided that MPAs should be established, is new legislation needed? Is the concept of MPAs so different that existing authorities are inadequate or insufficient? Is a comprehensive statute on MPAs needed to replace the hodgepodge of existing authorities? Do the existing authorities adequately recognize the non-ownership interests of stakeholders and provide a forum for resolving conflicts? These are only a few of the questions that might need to be answered if the effort to create a national system of MPAs is to go forward.

The intentions of the Bush Administration are as yet unknown. It is not clear if it will attempt to dismantle the Clinton Administration initiatives, keep them unchanged, modify them, or build on them. Will Congress wait for the Bush Administration to state its interests before acting? Finally, what vehicles might Congress use to address marine protection: new authorizations, reauthorizations, or appropriations? Chairman Hansen of the House Resources Committee wrote a letter to President-elect Bush on December 27, 2000, in which he raised concerns about many actions by the Clinton Administration, including the MPA-related initiatives, but did not state how his committee might address them.

Footnotes

1 National Research Council, Marine Protected Areas: Tools for Sustaining Ocean Ecosystems. (Washington, DC: 2000). 181 p. (prepublication copy)

2 The first plan was "Turning to the Sea: America's Ocean Future" prepared by a Cabinet-level task force created at the National Ocean Conference in 1998 and released September 2, 1999; the second was the "National Action Plan to Conserve Coral Reefs" prepared by the U.S. Coral Reef Task Force and released on March 2, 2000.

3 The order defines MPAs as "any area of the marine environment that has been reserved by Federal, State, territorial, tribal, or local laws or regulations to provide lasting protection for part or all of the natural and cultural resources therein."

4 The Order also directed the EPA to reduce pollution of beaches, coasts, and oceans by strengthening water quality protection for marine waters.

5 65 Federal Register p. 67305, November 9, 2000

6 For more information on the legal status of Executive Orders, see CRS Report 95-772 A, Executive Orders and Proclamations.