BIGGER ISN'T ALWAYS BETTER: WHY SMALL, STATE-RUN MPAS ARE THE ANSWER TO MEETING CONSERVATION GOALS EFFECTIVELY.

• Author: Henneberg, Jonathan

1. Introduction 103 II. Background on Ocean Conservation 104 A. Convention on Biodiversity 106 B. United Nations Convention on the Law of the Sea 109 III. The Problem with Large MPAs 111 A. Maritime Zones under UNCLOS 111 B. MPAs in High Seas 112 C. Large MPAs in the United States 114 IV. The Solution: Smaller State-run MPAs 115 A. The United States 30-by-30 plan 115 B. The "California Model" 118 C. Implementation of a Smaller State Run MPA System 119 V. Conclusion 125 I. Introduction

   Ocean conservationist Dr. Enric Sala has described the ocean as a bank account. (1) The analogy stems from the concept of a bank account holder depositing funds into his account with the ability to make withdrawals as he deems necessary. In the ocean's case, these withdrawals are usually accomplished through human activities such as fishing, mining, and oil drilling. (2) These activities are vital to sustaining the global economy as it functions today. However, no one is making deposits to replenish the funds that are being rapidly depleted. This inequity in withdrawals and deposits has caused an imbalance in ocean resources that is steadily increasing with no end in sight. (3)

   The need to balance the ocean's "account" has caused scientists and conservationists to develop a method to protect and replenish the resources that keep the ocean's economy functioning. One mechanism to accomplish this goal is through the establishment of marine protected areas (MPAs). (4)

   An MPA can be viewed as an investment account for the ocean's resources. (5) The goal of an MPA is to regulate certain activities, acting as a "principle" to be set aside in a bank account, to replenish resources to be used again, like interest which compounds to produce returns for the account holder. (6) The returns in this case would be a replenishment of natural resources to the industries that make a living off these assets, as well as to the public as consumers. (7)

   There is no globally accepted definition for MPAs, despite the term being widely used in international conventions. (8) Various international bodies, as well as several nations, have adopted unique definitions of MPAs. (9) The United States defined MPAs through an executive order signed by President Bill Clinton 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." (10) However, this is not the definition used by federal agencies within the United States. (11) Instead, U.S. agencies use the international definition. (12)

   The International Union for the Conservation of Nature (IUCN) provides the definition for MPAs that is accepted by the National Oceanic and Atmospheric Administration (NOAA) and used by the United States MPA Inventory as "[a] clearly defined geographical space, recognized, dedicated, and managed, through legal or other effective means, to achieve the long-term conservation of nature with associated ecosystem services and cultural values." (13) This definition is a good baseline for understanding what an MPA is and why they are created, but it provides relatively no information regarding implementation, monitoring, or level of regulation.

   The fundamental goal for MPAs is to protect biodiversity (14) within a defined area of the ocean. (15) However, the theme of rejecting strict guidelines when defining MPAs has led to controversy and debate about whether an area is suitable for protection, the level of extraction allowed in the region, who will fund the project, and how to monitor the effectiveness of these efforts. (16)

   There has been a recent trend in global conservation to establish large MPAs that often only govern remote regions where the threat to biodiversity is low and not the areas that need protection. (17) There are questions regarding the true motive behind these large MPAs, and whether they are even capable of accomplishing their often-lofty goals. (18)

   This comment explores the history behind ocean conservation from its roots to the recognition and widespread establishment of MPAs. Then it will discuss the trend to establish large MPAs that has recently plagued the conservation movement and why this new course should be corrected. Finally, a smaller, state-run system of MPAs will be proposed, using the United States as a model for how this method of conservation should be implemented.

2. Background on Ocean Conservation

   Ocean conservation has a long history that predates western civilization. The origins of communities protecting ocean resources can be traced back to the indigenous colonies of the Pacific. (19) The concept known as ra'ui was practiced by community leaders in Polynesia. (20) Community leaders would close defined areas of the sea from their community to protect biodiversity. (21) Although the goal of these communities was typically to protect their fishing harvest, nature conservation was often achieved inadvertently. (22) The involvement of community "stockholders" in the conservation of resources that provide the bedrock of the economy can be viewed as a northern star for countries' biodiversity conservation efforts in the twenty-first century.

   Conservation of land and sea became a popular concept in the late 1800s in countries such as Australia, South Africa, and the United States. (23) America's initial conservation efforts were aimed at land-based conservation. (24) This is inferred from the establishment of Yellowstone National Park and, soon after, the national park system. (25) However, after World War II, America and the rest of the world's focus moved to the ocean. (26) This shift was spearheaded by a new interest in scuba diving and snorkelling, which allowed the public to realize the rich wilderness of the ocean, as well as films and books produced and written by Jacques Cousteau about the ocean. (27) This led to early marine biological researchers sounding the first alarms for the need to protect these areas, in some instances calling for the prohibition of all marine life extraction through any means. (28) These alarms were not ignored. The United States began to establish national parks which included land and the subtidal sea under a single jurisdiction, beginning in the Bahamas and US Virgin Islands. (29)

   By the 1970s, national governments saw ocean areas as more than just sources of economic importance. (30) In 1972, the United States, at the Second World Conference on National Parks, urged other nations to "'set aside appropriate marine areas as national parks and reserves and to take action to extend the boundaries of existing terrestrial national parks and reserves to include representative marine ecosystems.'" (31) This call to action began the formal movement to establish MPAs in the United States. (32)

   The National Oceanic and Atmospheric Administration (NOAA) created a comprehensive management system that balanced marine biodiversity with human use to achieve long-term public benefits. (33) The National Marine Sanctuary Act of 1972 allowed the Secretary of Congress to identify and designate national marine sanctuaries. (34) Some of the purposes behind this act included: 1) to establish a comprehensive conservation and management plan, 2) to protect and restore habitats, 3) to enhance public awareness of wise and sustainable use of marine environments, and 4) to coordinate scientific research for long-term monitoring of these resources. (35) Following this act, the United State established two National Marine Sanctuaries in North Carolina and the Florida Keys. (36) These sanctuaries can be viewed as the inspiration for MPAs because they share the same goal and implementation strategy.

   By the late 1980s, the International Union for Conservation of Nature (IUCN), the national governing body for conservation (37) called for countries to develop a national system of MPAs. (38) The goal of this demand was to protect threatened species and habitats as well as provide for the welfare of people affected by these ecological areas. (39) The distress call had been made; it was now up to countries to respond.

   1. Convention on Biodiversity

      Individual countries had an opportunity to answer that call in 1992. A clear framework was established during the 1992 Earth Summit in Rio de Janeiro. (40) This conference brought political leaders from 179 countries together to focus on human socioeconomic impacts on the environment. (41) The primary objective of this summit was to produce a blueprint for international action on environmental issues that would guide policy in the twenty-first century. (42) From this objective came Agenda 21. (43) Chapter 17 of Agenda 21, which primarily focused on ocean management and protection, established the legally binding Convention on Biological Diversity (CBD). (44)

      The CBD consists of 42 articles and two annexes that outline certain aspects of biodiversity management. (45) The objectives of the Convention are threefold and include:

      the conservation of biological diversity [e.g., Articles 6-9, 11, and 14], the sustainable use of its components [e.g., Articles 6, 10, and 14] and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies [e.g., Articles 14, 15, 16, and 19-21]. (46) The CBD became effective on December 29, 1993. (47)

      Although the CBD is considered binding on all ratifying countries, its actual legal power is limited by design in that it authorizes much but mandates little. (48) "The CBD is considered more of a 'framework' convention because it, inter alia, does not set may precise obligations." (49) Although the convention establishes a framework for countries to adopt, states reserve sovereign rights over biological diversity within their jurisdiction, and access to these...