The Gulf Oil Spill and National Marine Sanctuaries

• Date: 01 November 2010

40 ELR 11074 ENVIRONMENTAL LAW REPORTER 11-2010

Even before the Deepwater Horizon platform exploded

on April 20, 2010, sending as-yet-untotalled millions of

gallons of oil into the Gulf of Mexico, no one, I suspect,

thought of the Gulf as a pristine ocean wilderness. And indeed,

as the site of signicant oshore oil and gas production, a “dead

zone” the size of New Jersey,

1

and, at least until recently, highly

lucrative commercial and sport sheries, it’s not.

Nevertheless, the Gulf of Mexico is far from being an

ecological wasteland, one reason that the spill-caused sher-

ies closures have been so economically devastating. In addi-

tion to supporting these large sheries, the Gulf of Mexico is

the nursery for an amazing variety of marine creatures. For

example, the Gulf is one of the few k nown nurseries of the

increasingly endangered bluen tuna, and tuna reared in the

Gulf can appear as far away as the Mediterranean.2

is biological richness is the reason that the Gulf of

Mexico is a lso home to a number of marine protected areas

(MPAs). MPAs are geographical ly designated sections of the

ocean that are legally identied and regulated for specic

uses. While the most protective MPAs prohibit all extractive

uses in the designated area, most MPAs serve other purposes.

For example, MPAs can also result in zoning cer tain highly

used areas, such as coral reefs, to separate potentially con-

icting uses—separating scuba diving and snorkeling from

shing, or separating sport shers from commercial shers.

is type of marine spatial planning has recently become the

focus of President Barack Obama’s national oceans policy.3

1. Scientists predict that the Gulf of Mexico’s hypoxic zone (“dead zone”) will

be the size of New Jersey in 2010—that is, somewhere between 6,500 and

7,800 square miles. Elizabeth Weise, “Gulf of Mexico Dead Zone Predicted

to Be Size of New Jersey is Year,” USA Today On-Line, http://content.usa-

today.com/communities/sciencefair/post/2010/06/gulf-of-mexico-dead-zone-

predicted-to-be-the-size-of-new-jersey-this-year/1 (June 29, 2010). e largest

dead zone occurred in 2002, occupying 8,484 square miles. Id. e mutual

interactions of the dead zone and the BP oil spill are as yet unknown.

2. Paul Greenberg, Tuna’s End, N.Y. T M., June 27, 2010, at 28, 30, 32.

Notably, in September 2010, the National Oceanic and Atmospheric Admin-

istration (NOAA) announced that it would be investigating the impacts of the

oil spill on tuna populations.

3. President Barack Obama, Stewardship of the Ocean, Our Coasts, and the Great

Lakes, Exec. Order No. 13547, 75 Fed. Reg. 43023 (July 19, 2010), adopting

Council on Environmental Quality, Final Recommendations of the Interagency

Ocean Policy Task Force (July 19, 2010).

e National Marine Protected A reas Center recognizes

26 MPAs in the Northern Gulf of Mexico and an additional

10 in south Florida waters, accounting for 13% of the total

number of MPAs in the United States.4 In addition, the states

bordering the Gulf of Mexico have established other MPAs

not yet included in the national inventory. A 2004 Sea Grant

survey identied eight state-managed areas in A labama

waters, 24 in Florida waters, 11 in L ouisiana waters, 16 in

Mississippi waters, and 24 in Texas waters.5

Among this plethora of MPAs are two National Marine

Sanctuaries threatened by the BP oil spill: the Florida Keys

National Marine Sanctuary and the Flower Garden Banks

National Marine Sanctuary. Despoilment of these sanctuaries

as a result of the oil spill could render BP liable for damages to

sanctuary resources pursuant to the National Marine Sanctuar-

ies Act.

6

More importantly, these two National Marine Sanc-

tuaries highlight the beautiful and productive ecosystems and

regionally important ecological resources in the Gulf that the

Deepwater Horizon disaster has put at risk, and they counsel

for improved protections of the Gulf’s ecological resources from

continuing oil and gas exploration and drilling in the region.

I. Flower Garden Banks National Marine

Sanctuary

Flower Garden Banks is the less well-known of the two

national marine sanctuaries at risk from the Deepwater Hori-

zon oil spill. Located 70 to 115 miles o the coasts of Texas

and Louisiana, it is the only one of the 13 designated national

sanctuaries located directly in the Gulf of Mexico.7 Flower

Garden Banks encompasses three sub-sanctuaries: East Flower

Garden Bank, West Flower Garden Bank, and Stetson Bank.8

4. National Marine Protected Areas Center, NOAA, A National System of MPAs:

Analysis of National System Sites 3, 4 (June 2010). However, because of the large

size of Pacic Ocean MPAs, the Gulf of Mexico MPAs account for only about

1% of the surface area of U.S. MPAs. Id. at 3.

5. S S  L C. S, M P A 

 G  M: A S ii-v (2004).

6. 16 U.S.C. §§1431-1445c-1 (2006).

7. National Marine Sanctuaries, NOAA, Flower Garden Banks National Marine

Sanctuary: About Your Sanctuary, http://owergarden.noaa.gov/about/about.

html (last visited Sept. 16, 2010).

8. Id.

The Gulf Oil Spill and National

Marine Sanctuaries

by Robin Kundis Craig

Robin Kundis Craig is Professor of Law and Associate Dean for Environmental

Programs, Florida State University College of Law, Tallahassee, FL.

Copyright © 2010 Environmental Law Institute®, Washington, DC. reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.