The National Marine Sanctuary System: The Once and Future Promise of Comprehensive Ocean Governance

Date01 November 2014
AuthorJason Patlis, Donald Baur, Tom Lindley, Alan Murphy, and Priscilla Hampton
The National
Marine Sanctuary
System: The
Once and Future
Promise of
by Jason Patlis, Donald Baur,
Tom Lindley, Alan Murphy, and
Priscilla Hampton
Jason Patlis is President and CEO of the National
Marine Sanctuary Foundation. Donald Baur, Priscilla
Hampton, Tom Lindley, and Alan Murphy are attorneys
with the Environment, Energy, and Resources practice
at Perkins Coie LLP in the Washington, D.C., Portland,
Oregon, and San Francisco, California, oces.
Despite repeated recommendations for improved ocean gov-
ernance, little has happened legislatively to update federal
ocean protection. But administratively, NOAA has advanced
a number of rulemakings to expand the size of existing
national marine sanctuaries, and has nalized a rulemaking
to allow the consideration of new designations of national
marine sanctuaries. is Article analyzes the legal underpin-
nings of the centerpiece of the National Marine Sanctuaries
Act and compares it to other federal and state legal authori-
ties that govern ocean ecosystems and resources. e Article
concludes that the new regulation creates an open-sourced,
grassroots approach to identifying special marine places that
are important to local communities nationwide.
Since the enactment of the Oceans Act of 2000,1 and
notwithstanding the many subsequent recommen-
dations of various blue ribbon and presidentially
appointed commissions, the last 15 years have seen little
legislative progress in accomplishing the widely recognized
need to improve how the nation governs its ocean, coastal,
and Great Lakes resources. e inability to enact legisla-
tion, which has barred signicant advances in ocean gov-
ernance, is not unique to this issue, and to be sure, there
are exceptions to this broad statement. ese include the
reauthorization of the Magnuson-Stevens Fishery Conser-
vation and Management Act (FCMA)2 in 2007, the recent
ratication of four international sheries treaties, and indi-
vidual legislative eorts to tackle specic issues such as
harmful algal blooms and marine debris.
Nevertheless, dozens of bills introduced in the U.S.
House of Representatives and the U.S. Senate to reform
ocean governance have failed to make it into law. Major
international treaties, with the United Nations Convention
on the Law of the Sea at the top of the list,3 fail to be rati-
ed. Emergency supplemental appropriations bills passed
in response to coastal storms or hurricanes have provided
funds for response and reconstruction, but very little for
restoration and reform.
Notwithstanding the inability of the U.S. Congress to
pass comprehensive oc ean policy reform, there has been
signicant progress through executive and ad ministrative
action. Many important initiatives have been taken to rec-
ognize, and make recommendations to achieve, compre-
hensive improvement in the way the nation manages coastal
and marine ecosystems. e William Clinton Administra-
tion hosted the rst National Ocean Conference in 1998,
in conjunction with the United Nations-declared Interna-
tional Year of the Ocean.4 Two ocean commissions have
released detailed and compelling reports and recommen-
1. Oceans Act of 2000, Pub. L. No. 106-256, 114 Stat. 644 (2000).
2.  Magnuson-Stevens Fishery Conservation and Management Reauthori-
zation Act of 2006, Pub. L. No. 109-479, 120 Stat. 3575 (2007).
3. United Nations Convention on the Law of the Sea, Dec. 10, 1982, 1833
U.N.T.S. 397.
4.  N O C: O  C, O
 L (1998) (ocial conference publication); G.A. Res. 49/131, U.N.
GAOR, Supp. No. 49, at 152, U.N. D. A/RES/49/131 (Dec. 19, 1994)
(declaring 1998 “International Year of the Ocean”).
Author’s Note: is Article is based upon an independent work
product completed by Perkins Coie LLP on a pro bono request by
 
acknowledge and greatly appreciate the research and writing
edits on this Article.
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.
11-2014 NEWS & ANALYSIS 44 ELR 10933
dations: the U.S. Commission on Ocean Policy, mandated
by Congress; and the Pew Oceans Commission, funded
by the Pew Charitable Trusts.5 Two national ocean poli-
cies under two dierent Administrations have sought to
coordinate ocean governance within the federal fam-
ily: the U.S. Ocean Action Plan by the George W. Bush
Administration; and the National Ocean Policy by the
Barack Obama Administration.6 Using the authority of the
Antiquities Act,7 President Bush established three marine
national monuments, including the world’s largest marine
protected area (MPA) at the time. Using the same author-
ity, President Obama recently announced an expansion of
one of those national monuments to establish once again,
within the U.S. Exclusive Economic Zone, the world’s
largest MPA.
Within t hese administrative achie vements, one aspect
of ocea n governanc e has witnessed slow but steady prog-
ress, but has generally gone unnoticed. e National Oce-
anic and Atmospheric Administration (NOAA) Oce
of National Ma rine Sanctu aries has advance d a number
of rulemakings to expand the size of existing national
marine sanct uaries, and has nalized a rulemaking to
allow, for the r st time in t wo decades, the consideration
of new designations of national marine sanctuaries.8 In
addition, Sen. Ca rl Levin (D. Mich.) announced last
June that he is introducing a bill to spur the establish-
ment of ne w national marine sanctuar ies in the Great
Lakes. ese actions may cha nge the entire landscape—
or seascape, more appropriately—of ocean governance
over the coming decade s.
is Article analyzes the legal underpinnings of the cen-
terpiece of the National Marine Sanctuaries Act (NMSA),9
and compares the NMSA to other federal and state legal
authorities that govern ocean ecosystems and resources.
e analysis begins, in Part I, with a discussion of the cur-
rent threats facing the ocean, and why protections are so
important to ensure that ocean resources are managed
sustainably. is part further discusses the merits of pro-
tecting these resources through a rea-based management
schemes, such a s MPAs. Part II describes the NMSA and
5. U.S. C’  O P, A O B   21
C (Final Report) (2004), available at http://govinfo.library.unt.
edu/oce ancommissi on/documen ts/full_co lor_rpt/we lcome.html ; P
O C’, A’ L O: C  C 
S C (2003), available at
6. Exec. Order No. 1354 7, §2, 75 Fed. Reg. 43023 , 4 3023 (July 19,
2010) (Obam a Ad ministra tion’s Na tional Ocean Policy) ; W
H C  E. Q , U.S. O A P
(2004) (Bush Ad ministra tion).
7. Antiquities Act, 16 U.S.C. §§431-443.
8. Re-Establishing the Sanctuary Nomination Process, 79 Fed. Reg. 33851 et
seq. (June 13, 2014).
9. National Marine Sanctuaries Act (NMSA), 16 U.S.C. §§1431-1445c-1,
assesses the law’s strengths and weaknesses. Part III then
examines other domestic legal mechanisms for preserv-
ing marine ecosystems, including federal authorities, state
laws, and the common law of torts. While the Article does
not constitute an exhaustive analysis of laws governing the
marine environment, it does look at the most important
domestic laws today.10
In comparing the NMSA to other existing laws in the
United States, Part IV argues that the NMSA deserves
renewed attention as a unique and powerful ocean gover-
nance tool. Part V envisions the dawn of a new era in ocean
governance in light of NOAA’s recently promulgated rule
and the opportunity it presents to expand the national
marine sanctuar y system.
I. Importance of Area-Based, Ecosystem-
Based Management
America’s ocea n covers almost 4.5 million squa re miles,
an area 23% larger than the nation’s landma ss. Its rich
bounty has integrally shaped our nation and the planet.
at bounty, however, is being degraded and depleted.
Once considered too vast to be impacted by human activ-
ity, the ocean now faces a myriad of local and global threats
due to human activities. Fish stocks, d irectly or indirectly,
are exploited to the point of depletion. Coastal and marine
habitat is sacriced for development. Land-based pollution
and runo cause uninhabitable dead zones and harmful
algal blooms.11 A changing climate is poised to wreak havoc
on the marine environment, with rising temperatures, ris-
ing sea levels, and rising acidity levels.12 While this Article
focuses on one law in particular, the NMSA, it is impor-
tant to rst consider the background and importance of
area-based management of marine resources.
10. While various international laws and treaties also are relevant to ocean pro-
tection, international law is beyond the scope of this Article. Similarly, al-
though federal and state pollution laws such as the Clean Water Act (CWA),
33 U.S.C. §§1251-1387, ELR S. FWPCA §§101-607, and Clean Air
Act (CAA), 42 U.S.C. §§7401-7671q, ELR S. CAA §§101-618, serve
to protect the ocean environment, the Article is not intended to include a
comprehensive analysis of pollution laws.
11. More than 20,000 acres of sensitive marine habitat disappear each year as
a result of coastal development, pollution and nutrient runo, and other
human activities. P O C’, A’ L O, supra
note 5, at vi.
12.  Kevin E. Trenberth et al., 
Change, in C C 2007: T P S B, C-
  W G I   F A R 
 I P  C C 237 (S. Solomon
et al. eds., 2007).  Nathaniel L. Bindo et al., 
  , in C C 2007, supra, at 387.
Between 1961 and 2003, global ocean temperatures rose by 0.10°C, and
sea levels increased by an average of 1.8 millimeters per year. Id. Even slight
changes in the marine environment have profound impacts on marine life.
V S. K  ., C  M E  G
C C: P E  U.S. R 7 (2002).
Copyright © 2014 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®,, 1-800-433-5120.

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