Legislative History of the National Marine Sanctuaries Act
In 1966, Congress passed the Marine Resources and Engineering Act, which resulted to the formation of the Commission on Marine Sciences, Engineering, and Resources (COMSER) chaired by Julius Stratton, former president of the Massachusetts Institute of Technology. COMSER, which ultimately became known as the Stratton Commission, was impaneled to review the status of most areas of American ocean policy, and investigate the possibilities of a coordinated governmental effort regarding coastal resource conservation. The Commission issued its report concurrently with the incoming of the Nixon administration in January 1969.
Several important themes emerged from the Stratton report. First, it called for a centralization of the federal government’s ocean effort if the full benefits of the nation’s marine and coastal resources were to be realized. Concomitantly, the report called for the creation of a civilian ocean and atmosphere agency to undertake the full range of actions needed to realize the effective use of the sea. Second, the report stated the urgent need for a concerted effort to begin planning and managing the nation’s coastal zones. It advocated more research and recommended a federal-state program in coastal zone management. Finally, the report highlighted the need for a much-expanded program in ocean science, technology, and engineering, at both the national and global levels.
The Stratton Commission’s report and other studies spurred Congress to introduce a series of bills in 1970-’72 which culminated in legislation which contained many fundamental coastal and nearshore ocean protective measures. Among those enactments were the Coastal Zone Management Act, the Marine Mammal Protection Act, the Magnuson Fishery Conservation and Management Act, the Clean Water Act, the Outer Continental Shelf Lands Act Amendments, and the Marine Protection, Research, and Sanctuaries Act (MPRSA)
1972Enactment of the MPRSA
In 1972, exactly one hundred years after the birth of the National Park System, the U.S. Congress enacted, and President Nixon signed, The Marine Protection, Research, and Sanctuaries Act. Title III of that Act created what was then known as the National Marine Sanctuaries Program, a framework for the protection of oceanic parks.
As originally enacted, Title III permitted the Secretary of Commerce to:
“…designate as marine sanctuaries those areas of the oceans, coastal, and other waters, as far seaward as the outer edge of the Continental Shelf…which he determines necessary for the purpose of preserving or restoring such areas for their conservation, recreational, ecological, or esthetic values.”
Title III also provided that:
- the designation by the Secretary was effective, as far as a State’s territorial waters, unless the Governor of the State certified that it was unacceptable
- the Secretary issue necessary and reasonable regulations to control any activity permitted within the marine sanctuary
- whoever violates any regulation shall be liable for a civil penalty of not more than $50,000 for each such violation
1980The First Substantive Amendment to Title III
The first real amendments to Title III (other than appropriations Acts amendments) occurred in 1980. Changes made at that time included the following:
- Governors of any territory or possession were given the same rights as State Governors in the designation process
- providing that Congress, by adopting a concurrent resolution in both Houses, could disapprove a designation or any of its terms
- mandating that the terms of designation include the geographic area included within the sanctuary; the characteristics of the area that give it conservation, recreational, ecological or esthetic value; and the types of activities that would be subject to regulation by the Secretary in order to protect those characteristics
- providing that the Secretary and the Secretary of the department in which the Coast Guard is operating (currently U.S. Department of Homeland Security) shall conduct such enforcement activities as necessary to carry out the purposes of Title III
The 1984 amendments were designed (in the words of the Senate report accompanying the enacted bill) to “reduce the confusion surrounding this program by providing explicit guidance to the Administration as to Congress’ intent regarding the National Marine Sanctuary program.” Toward that end the amendments:
- set out factors and consultations required in making sanctuary designation determinations and findings
- required a Resource Assessment Report documenting present and potential uses of the area in making such determinations and findings
- provided, with great particularity, the procedures for sanctuary designation and implementation
- mandated that the Secretary conduct research and educational programs
- necessary to carry out the purposes and policies of Title III
- provided that the Secretary should utilize, by agreement, the personnel,
- services, and facilities of other Federal agencies, on a reimbursable basis, in carrying out his responsibilities under the title
The 1988 amendments resulted in substantive changes to Title III, adding several new sections and completely revamping a number of existing sections. The most noteworthy of these changes are summarized as follows:
- A new section authorized the program to establish a special use permit program for commercial operationssuch as glass bottom boats and diving tripsin sanctuaries. The fee authorized for the permit would be set to recover administrative costs, the “fair market value” of the use of the resource, and a reasonable return to the government.
- Another new section provided that any vessel or person causing damage to the resources of a sanctuary would be liable for both response and clean-up costs, as well as damages for any sanctuary resources destroyed.
- Under then current law, the amounts recovered for both civil penalties and damages to marine sanctuaries were deposited in the general Treasury fund. Therefore, a new section enabled the program to retain them for restoration of the sanctuary and for reimbursement of clean-up costs, and also established priorities for the use of the recovered funds.
- Title III did not explicitly contain many of the specific enforcement authorities of other statutes enforced by NOAA, such as the Magnuson Fishery Conservation and Management Act and the Marine Mammal Protection Act. Thus, a section was amended to provide more uniform enforcement authority under statutes protecting living marine resources.
The year of the 20th anniversary of Title III saw what have been the most substantial changes to datenot the least of which was a name change. One amendment provided that “This Title may be cited as ‘The National Marine Sanctuaries Act.’” Thus, hereafter Title III will be referred to as the NMSA. Other significant changes included:
- The findings, purposes, and policies sections of the NMSA were amended: cultural resources were deemed among those that give an area “special national significance”; new text provided a mandate to support. long-term monitoring and research; the program was to create models of, and incentives for, conservation of marine resources.
- An amendment changed the standard used by the Secretary in determining the suitability of an area for designation. The amendment made it possible to designate if, in addition to meeting other standards, the Secretary determines that existing regulatory authorities in the area are inadequate.
- One section revamped the procedures for designation and implementation. The most important changes: eliminating several provisions; requiring federal agencies to be consistent with the National Environmental Policy Act in commenting on proposed designations; and requiring interagency consultations on federal actions likely to harm sanctuary resources.
- A new subsection was added to promote better international cooperation to implement the NMSA, consistent with international agreements for the protection and management of marine areas.
- New language on prohibited activities was adopted. The new section explicitly made it unlawful to: damage sanctuary resources that are specifically protected by law or regulation; violate any provision of the NMS or regulations issued pursuant to it; possess any sanctuary resources taken illegally; or interfere with the enforcement of the NMSA.
- Enforcement was also beefed up. The maximum civil penalty for violation increased to $100,000. A penalty assessed was also deemed to constitute a maritime lien on any vessel involved. Forfeiture claims were deemed not subject to set-off against resource damage claims or civil penalties.
- An ’84 amendment had directed the Secretary to promote and coordinate the use of national marine sanctuaries for research. A new amendment included monitoring and education as priorities within sanctuaries.
- As amended, one section gave the Secretary authority to provide financial assistance for research, monitoring, program evaluation, and education. It also clarified that donations to the program are gifts to the United States, and authorized the Secretary to solicit donations for the program.
- Authority was given to establish citizen advisory councils to assist in the designation and management of marine sanctuaries.
Change to the NMSA may best be described as incremental as compared to the more comprehensive overhaul of 1992. For example, probably the most significant changes effected by the 1996 amendments were:
- The authorization of an innovative public-private partnership between the sanctuary program and private enterprise. Facets of that collaboration included:
- The adoption of a symbol for the national marine sanctuary program, or of any individual sanctuary, to be licensed to a private firm;
- Allowing the Secretary to designate an “official sponsor” of the sanctuary program or of an individual sanctuary;
- Permitting the creation, marketing, and selling of products to promote the national marine sanctuary program;
- Authorizing the Secretary to enter into exclusive or nonexclusive agreements authorizing entities to create, market or sell on the Secretary’s behalf.
The last reauthorization produced more profound changes to the NMSA. Most notable is the requirement that all sanctuaries be collectively managed as a coherent system. That collection of sanctuaries is to be known as the “National Marine Sanctuary System.” Other important amendments specify that:
- Prior to designating a new sanctuary, the Secretary publish a finding that the proposed new sanctuary will not have a negative impact on the sanctuary system as a whole. Thus, he must find that there are sufficient resources are available to:
- Effectively implement each sanctuary management plan; and
- Complete site characterizations of each sanctuary within 10 years
- The section on prohibited activities was amended to clarify that it is illegal to offer for sale, purchase, import, or export, any sanctuary resource.
- Enforcement of the NMSA was again beefed up; criminal penalties were instituted for resisting or interfering with any enforcement of the NMSA; also, knowingly submitting false information to the Secretary or any officer authorized to enforce the Act was made a criminal offense.
- Due to the remote location of many of the sanctuaries, the Secretary was authorized to develop accessible educational and interpretive facilities.