First, Congress enacted a series of laws that indirectly benefited coral reefs, includingthe Fish and Wildlife Coordination Act of 1934,* the Fish and Wildlife Act of 1956,** the Nationa
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CONTENTS
8.1 Introduction 143
8.2 U.S Law 144
8.2.1 The National Marine Sanctuaries Act 144
8.2.2 The Antiquities Act 146
8.2.3 Marine Protected Areas 147
8.2.4 U.S Coral Reef Task Force 149
8.2.5 Endangered Species Act 149
8.2.6 Conclusion 151
8.3 International Protections for Coral Reefs 151
8.3.1 United Nations Convention on the Law of the Sea 153
8.3.2 Agenda 21 154
8.3.3 Convention on Biological Diversity 154
8.3.4 Convention on International Trade in Endangered Species 156
8.3.5 United Nations Convention Concerning the Protection of the World Cultural and Natural Heritage 158
8.3.6 Conclusion 158
8.4 Recommendations for Improving the Legal Protection of Coral Reefs 159
8.4.1 Establish No-Take Zones 160
8.4.2 Modify Fishing Practices 160
8.4.3 Add Reef Species to CITES 160
8.4.4 Increase World Heritage Site Designations 161
8.4.5 Advance U.S Practices 161
8.5 Conclusion 162
References 162
Government authorities are becoming increasingly aware of the importance of coral reef ecosystems and of the rapid pace at which coral reefs are dying Given the large array of local, state, and national initiatives attempting to protect and preserve these ecosystems, this chapter focuses on the primary U.S laws and international legal instruments that do or may protect coral reefs This focus in no way diminishes the importance of locally based initiatives, which, in the end, may be the only sustainable approach to ecological problems (Salm et al 2001, Birkeland 1997) However, given the limitations
of one chapter, I have chosen to consider programs with the widest possible application
* This chapter originally appeared as an article in The Harvard Environmental Law Review, Vol 26, No 2 (2002) 2073_C008.fm Page 143 Friday, April 7, 2006 6:14 PM
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8.2 U.S LAW
Until fairly recently, many in the modern world believed that our oceans could provide limitlessresources and were impervious to human activity Only in the second half of the twentieth centurydid the United States begin to pay significant attention to the consequences of human activity onocean life First, Congress enacted a series of laws that indirectly benefited coral reefs, includingthe Fish and Wildlife Coordination Act of 1934,* the Fish and Wildlife Act of 1956,** the NationalEnvironmental Policy Act of 1969,*** and the Magnuson Fishery Conservation and ManagementAct of 1976.**** Other federal laws that provided some protection to coral reef resources includethe Coastal Zone Management Act of 1972,***** the Clean Water Act,****** the SikesAct,*******the Endangered Species Act, and the Lacey Act.******** Given the interconnectednature of all life in the ocean, these initial efforts provided tangential protection for coral reefs, butnone was specifically directed at coral reefs
8.2.1 T HE N ATIONAL M ARINE S ANCTUARIES A CT
Beginning in the 1970s with the devastation caused by massive oil spills in the oceans, Congressresponded with new initiatives to protect the marine environment The most important was TitleIII of the Marine Protection, Research, and Sanctuaries Act (MPRSA) of 1972 The law createdprotected preserves that were in some ways similar to the land-based national parks system creatednearly a century earlier (NOAA 2002a) Marine sanctuary designations were among the first U.S.attempts to take an ecosystem approach to protecting our ocean resources The legislation coordi-nates the work of federal agencies with overlapping jurisdiction in the sanctuary areas (Birkeland1997), providing more integrated protection to a limited number of ocean habitats
The original MPRSA established a system of Marine Protected Areas (MPAs) and was designed
to prevent the “unregulated dumping of material into ocean waters” that endangers “human health,welfare, or amenities or the marine environment, ecological systems, or economic potentialities.”Title III of the MPRSA charged the Secretary of Commerce, who oversees the National Oceanicand Atmospheric Administration (NOAA), to identify, designate, and manage marine sites based
on their “conservation, recreational, ecological, or esthetic values” within the U.S ocean territoriesand the Great Lakes After designating a marine sanctuary, the MPRSA authorized the Secretary
to “issue necessary and reasonable regulations to control any activities permitted within the ignated marine sanctuary.” This was the first effort to preserve marine ecosystems as a whole, andthe primary concern was the deleterious effect of actively dumping waste into the ocean
des-In its reauthorization of Title III of MPRSA in 1984, Congress greatly expanded the purposeand process of designating such protected areas The amended MPRSA provides for a balancing-of-needs inquiry before a sanctuary is added to the program Congress instructed the Secretary of
* The Fish and Wildlife Coordination Act of 1934 recognizes the importance of wildlife resources and authorizes the Secretary of the Interior to provide assistance to and cooperate with federal, state, and other authorities to protect wildlife.
** The Fish and Wildlife Act of 1956 establishes, among other things, the position of Assistant Secretary of the Interior for Fish and Wildlife and a Fisheries Loan Fund.
*** The National Environmental Policy Act of 1969 declared a national policy to encourage productive and enjoyable harmony between man and his environment NEPA requires preparation of an environmental impact statement for proposed legislation and other major federal actions significantly affecting the environment.
**** The Magnuson Fishery Conservation and Management Act of 1976 recognizes the importance of fisheries to the U.S economy and the dangers of overfishing.
***** The Coastal Zone Management Act of 1972 recognizes the negative impact on marine resources by coastal opment activities.
devel-****** The Clean Water Act provides some protection to coral reefs by regulating discharges into U.S waters.
******* The Sikes Act regulates Department of Defense activities affecting natural resources.
******** The Lacey Act makes it unlawful to import, export, sell, acquire, or purchase fish, wildlife, or plants taken, possessed, transported, or sold: 1) in violation of U.S or Indian law, or 2) in interstate or foreign commerce involving any fish, wildlife, or plants taken possessed or sold in violation of state or foreign law.
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Commerce to look at areas of special national significance due to their “resource or human-usevalues” and to consider factors such as biological productivity, ecosystem structure, and threatenedspecies present in the area The reauthorization also instructed the Secretary to consider an area’s
“historical, cultural, archaeological, or paleontological significance.”
On the other side of the equation, the Secretary is to consider the negative impacts produced
by “management restrictions on income-generating activities such as living and nonliving resourcesdevelopment; and the socioeconomic effects of sanctuary designation.” Marine sanctuary statusprovides some protection but does not eliminate all commercial activity within sanctuary bound-aries For this reason, some argue that marine sanctuaries are more similar to national forests, wherecommercial logging is permitted, than national parks (Ranchod 2001)
The 1988 reauthorization of MPRSA enlarged the scope of the statute still further and allowedthe sanctuaries program to collect and use funds obtained from resource damage claims Under theamended statute, “any vessel used to destroy, cause the loss of, or injure any sanctuary resourceshall be liable in rem to the United States for response costs and damages resulting from suchdestruction, loss, or injury.” Thus, when vessels cause destruction through oil spills, groundings,
or other actions that damage marine sanctuary resources, repairs can be made from recoveredsettlements This is important because coral reefs tend to occur in shallow waters where they aremore vulnerable to human activity and damage from ships
The National Marine Sanctuaries Act (NMSA) does provide affirmative defenses for acts of God,war, third-party acts, or negligible damage The courts, however, have interpreted these defenses verynarrowly For example, a federal district court in Florida granted summary judgment to the government
in the case of the M/V Miss Beholden. The court found that the ship intentionally ran aground theWestern Sambo Reef in the Florida Keys National Marine Sanctuary during a storm in 1993, damaging
or destroying 1025 m2 of live coral and 133 m2 of established reef framework The defendant shipowners were not allowed to use any of the affirmative defenses since bad weather had been forecastfor the area 2 days before the accident In 1996, the U.S Court of Appeals for the Eleventh Circuitinterpreted the NMSA as a strict liability statute and affirmed the lower court’s damages award to thesanctuary when the ship Jacquelyn L ran aground on the same reef in the Florida Keys
Thirteen marine sanctuaries have been established in the United States during the first 30years of the program The national marine sanctuaries system covers 18,000 square miles inthe Atlantic and Pacific Oceans (S Rep No 106-353, 2000) So far only five of the sanctuariesare home to coral reefs, including the Flower Garden Banks National Marine Sanctuary in theGulf of Mexico and the Florida Keys National Marine Sanctuary (NOAA 2002b) FlowerGarden Banks, located 110 miles off the coasts of Texas and Louisiana, harbors the northern-most coral reefs in the United States and covers 41.7 square nautical miles, containing 350 acres ofreef crest (NOAA 2003)
The Florida sanctuary runs alongside the Florida Keys and extends approximately 220 milessouthwest from the southern tip of the Florida peninsula The sanctuary is home to a complexecosystem including seagrass meadows, mangrove islands, and living coral reefs of “extensiveconservation, recreational, commercial, ecological, historical, research, educational, and aestheticvalues” (FKNMS 2004) The Florida sanctuary received additional protection in 2002 when theInternational Maritime Organization, a specialized agency of the United Nations, approved NOAA’sproposal to designate the area as a Particularly Sensitive Sea Area (PSSA) (NOAA 2002c) Thewaters around the Florida Keys are some of the most heavily trafficked shipping areas in the world,with 40% of the world’s commerce passing through the Florida Straits each year, and the FloridaPSSA is one of only five such areas in the world (NOAA 2002c) It regulates ships larger than 50 m
to internationally accepted and enforceable rules designed to address the harmful effects of ings, groundings, collisions, and discharges of harmful substances (NOAA 2002c) NOAA hopesthat “PSSA status will help educate the international shipping community about the sensitivity ofcoral reef resources to international shipping activities and increase compliance with domesticmeasures already in place to protect the area” (NOAA 2001)
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There may eventually be another U.S reef included in the marine sanctuaries program OnDecember 4, 2000, President Clinton issued Executive Order 13,178 to establish the NorthwesternHawaiian Islands Coral Reef Ecosystem Reserve (“Reserve”) (Exec Order No 13,178, 2000) Theorder recognizes that the United States holds 3% of the world’s coral reefs and that 70% of the U.S.total is located in Hawaii The order establishes an 84-million-acre reserve to protect Hawaii’s reefs
It would be the second-largest MPA on Earth, exceeded only by the Great Barrier Reef in Australia(Breen 2001)
The final order establishing the Hawaiian Reserve caps the current level of commercial andrecreational fishing at the amount taken in 2000, except in specific areas of the Reserve wherefishing is prohibited (Exec Order 13,178, 2000; Exec Order No 13,196, 2001) It prohibits allother commercial activity such as drilling, oil and mineral exploration, anchoring of boats, dis-charging any material into the water, or collecting items from the Reserve President Clinton issuedthe executive order using his authority under a variety of laws including the NMSA, the EndangeredSpecies Act of 1973 (ESA), and the National Historic Preservation Act The executive order directsthe Secretary of Commerce to initiate the process to designate the Reserve as a national marinesanctuary under the National Marine Sanctuaries Program Authorization Act of 1988
The National Marine Sanctuary Program (NMSP) worked with the Reserve staff to develop theFinal Reserve Operations Program (NOAA 2004b) NSMP and the Reserve have also begun theprocess to designate the Reserve as this country’s 14th National Marine Sanctuary under the NMSA The national marine sanctuaries program is the best federal effort to date to protect coral reefs.Still, it alone is insufficient to ensure the preservation of the marine environment The programwould be more successful if more coordination existed with local, state, and federal authorities toreduce the amount of land-based pollution entering the sanctuaries and degrading the reefs, par-ticularly the near-shore reefs off the coast of Florida
8.2.2 T HE A NTIQUITIES A CT
President Clinton took another avenue of executive power to protect coral reefs using the AntiquitiesAct of 1906 (16 U.S.C §§ 431-33) Shortly before leaving office, Clinton employed the Act to establishthe Virgin Islands Coral Reef National Monument (Proclamation No 7399, 2001) and expand theBuck Island Reef National Monument in the U.S Virgin Islands (Proclamation No 7392, 2001).Together, the two designations set aside 30,843 marine acres as monuments The Virgin Islandsmonument protects a fragile Caribbean tropical ecosystem and recognizes the interdependence of thefishery habitats, the “mangroves, sea grass beds, coral reefs, octocoral hardbottom, sand communities,shallow mud and fine sediment habitat, and algal plains” (Ranchod 2001) The expanded Buck IslandReef National Monument now encompasses “additional coral reefs … barrier reefs, sea grass beds,and sand communities, as well as algal plains, shelf edge, and other supporting habitats not includedwithin the initial boundary” (Proclamation No 7392, 2001)
Clinton’s use of the Antiquities Act represented a departure from the typical national monumentdesignation (Ranchod 2001) Traditionally, national monuments were selected to preserve “curios-ities … that stand out from the landscape by virtue of their extraordinary beauty, or unusualgeographic or historical value” (Graham 2000) Clinton’s novel use of the Antiquities Act creatednational monuments that “revolve around large ecosystems that are distinct and of significance”(Ranchod 2001).* The Antiquities Act directs the president to limit the parcels or public lands setaside as monuments to “the smallest area compatible with the proper care and management of theobjects to be protected” (16 U.S.C § 431) While Clinton’s expansion of the Antiquities Act fromindividual “curiosities” to entire ecosystems is novel, it corresponds with the growing knowledge
* It is important to note that previous presidents also used the Antiquities Act to protect public lands Several were later redesignated as national parks by Congress, including the Grand Canyon, Zion, Bryce Canyon, and Joshua Tree 2073_C008.fm Page 146 Friday, April 7, 2006 6:14 PM
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that an individual species does not exist independent of its surroundings; rather, an ecosystem is acommunity in which all parts are interdependent
Designation as a national monument under the Antiquities Act may provide greater and quickerprotection for coral reefs than designation as a marine sanctuary currently provides The AntiquitiesAct does not require the level of intragovernmental consultation, public participation, and congres-sional oversight that the NMSA requires.* Unlike the NMSA, the Antiquities Act does not requirethe president to consider conflicting uses of the area However, due to the unilateral nature of theexecutive action under the Antiquities Act, the underwater monuments could be in greater dangerthan marine sanctuaries of being reversed or eviscerated by subsequent presidents or congressionalaction This danger includes inadequate funding to carry out the intent of the designating executiveorder (Ranchod 2001) Since the passage of the Antiquities Act, 14 of 17 presidents have used it
to establish 123 national monuments (Ranchod 2001) Congress has only abolished seven of thosemonuments, and five others have been reduced in size (Larvie 2001), which may indicate Congress’sreluctance to override the executive in this area
8.2.3 M ARINE P ROTECTED A REAS
MPAs refer to an existing patchwork of local, state, and national efforts to protect corals Theseefforts preserve, to varying degrees, certain areas of the nation’s waters, including some areas withcoral reefs In the United States, MPA is an umbrella term that includes “national marine sanctuaries,fisheries management zones, national seashores, national parks, national monuments, critical hab-itats, national wildlife refuges, national estuarine research reserves, state conservation areas, statereserves, and many others” (NOAA 2004c)
Recognizing that the seas have generally been treated as “commons” available to everyone,whether within a country’s boundaries or on the high seas, MPAs establish specific boundaries andspecify the permitted and nonpermitted uses within them (Salm et al 2001) An MPA may beestablished for a variety of reasons, such as maintaining fisheries through “no-take” zones, high speciesdiversity, critical habitat for particular species, special cultural values (historic, religious, or recre-ational), or tourist attractions (Salm et al 2001) Some MPAs restrict or forbid human activity withinthe protected area, while others simply manage an area to enhance ocean use (Salm et al 2001)
In May 2000, President Clinton signed Executive Order 13,158 to strengthen and expand thenation’s system of MPAs (Exec Order No 13,158, 2000) The executive order places primaryresponsibility for developing a national system of MPAs in the hands of the Department of theInterior (DOI) and the Department of Commerce (DOC) NOAA calls the creation of a compre-hensive system of MPAs “perhaps the most important, and most challenging, ocean managementeffort of the 21st century” (NOAA 2004d), and one that “has never been attempted by our nation”(NOAA 2004e)
The administering departments have developed two parallel tracks to carry out the executiveorder The first is an evaluation of the existing MPAs, including recommendations for improvingthem, and recommendations for creating new MPAs The other is a science-based track that willdevelop tools and management strategies to support a national MPA network (NOAA 2004e).One of the first tasks under the executive order is to publish and maintain a list of MPAsexisting in the United States (Exec Order 13,158, 2000) Because of the varied definitions ofMPA, the executive order specifically defines MPA as “any area of the marine environmentthat has been reserved by federal, state, territorial, tribal, or local laws or regulations to providelasting protection for part or all of the natural and cultural resources therein.” The order further
* However, legislation introduced in Congress in 2001 would amend the Antiquities Act to require the president to allow for public participation before designating future monuments involving more than 50,000 acres and to consult with the Governor and members of Congress from the State or territory where the designated monument is located See National Monument Fairness Act of 2001, H.R 2114, 107th Cong
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defines “marine environment” to mean “those areas of coastal and ocean waters, the GreatLakes and their connecting waters, and submerged lands thereunder, over which the UnitedStates exercises jurisdiction, consistent with international law.” The MPA Center expects thefinal list to identify between 1500 and 2000 MPAs when the inventory is completed (NOAA2005) After the departments compile the list of existing MPAs, new candidates for protectioncan be added
One of the major challenges in designing a comprehensive national system of MPAs will be
“coordinating management efforts across areas of complex, multiple jurisdictions” (NOAA 2004d).The executive order addresses this challenge by directing the implementing agencies to create thefollowing: a Web site to facilitate information sharing; an MPA Federal Advisory Committee toprovide expert advice on and recommendations for the national system of MPAs; and a NationalMPA Center, whose mission is to develop a “framework for a national system of MPAs, and toprovide federal, state, territorial, tribal, and local governments with the information, technologies,and strategies to support the system” (Exec Order No 13,158, 2000) Funding the initiative will
be a further challenge, especially because the executive order does not provide for funding PresidentBush’s Secretary of Commerce announced in 2001 that the administration intended to retain andproceed with Executive Order 13,158 (NOAA 2004e)
The DOC has been carrying out its mandate under Executive Order 13,158 The DOC has created
a Web site (NOAA 2005a), established the National MPA Center (NOAA 2004g), organized an MPAAdvisory Committee with 30 members (NOAA 2004g), and convened several conferences (NOAA2004h)
An important feature of the executive order is the requirement that federal agencies identifythose actions that will “affect the natural or cultural resources that are protected by an MPA”(Exec Order No 13,158, 2000) The order states that in taking such actions, the agency “shallavoid harm to the natural and cultural resources that are protected by an MPA,” although theagency is only required to avoid such harm “to the extent permitted by law and to the maximumextent practicable.” The order further requires each federal agency affected by the order toprepare, and make public, a description of the actions taken by that agency in the previousyear to implement the order
The executive order itself does not create any right or benefit “enforceable in law or equity by
a party against the United States, its agencies, its officers, or any person.” However, DOI and DOCalready possess some enforcement authority over MPAs DOI has jurisdiction over “1.8 million ofthe nation’s 4.2 million acres of coral reefs” (Craig 2000) with the authority to promulgateregulations for those designated as national parks, including fines and jail sentences for violations
of the law (Craig 2000) Also, as discussed earlier, the NMSA gives the Secretary of Commerceconsiderable enforcement authority
Given that Congress has not yet enacted a comprehensive, coordinated, long-term nationalpolicy to protect the nation's coral reefs (Craig 2000), the MPA executive order is an importantnew tool in managing ocean resources that could eventually prove beneficial to coral reefs Itssuccess, however, will depend on Congress’s long-term willingness to fund the mandate
The United States joins a number of other countries in experimenting with MPAs as a way ofprotecting important ecosystems One of the best examples of an MPA is the Great Barrier Reef
of Australia It is cited as a “model of integrated and multiple-use management, allowing sustainableutilization of the reef by a wide range of users with numerous and often conflicting needs” (Bryant
et al 1998) Another promising example is the Bonaire Marine Park in the Caribbean, a self-fundedpark “supported entirely from tourist revenues (which also bring in half of that country’s total grossdomestic product)” (Bryant et al 1998) In the Philippines, the Apo Island Reserve “has allowed[fish] stocks to recover sufficiently so that local fishermen operating in the surrounding areas arereporting major increases in fish yields” (Bryant et al 1998) The United States could draw on thebest practices from these successful MPAs to enhance its own fledgling system in protecting itsmarine resources
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8.2.4 U.S C ORAL R EEF T ASK F ORCE
The increased awareness of the importance of coral reefs to the ocean system has spawned otherfederal efforts designed specifically to protect them In 1998, the year of the mass coral bleachingevent, President Clinton issued Executive Order 13,089, entitled “Coral Reef Protection.” (Exec.Order No 13,089, 1998) The order affirmatively requires all federal agencies to identify actionsthat may affect U.S coral reefs and to ensure, subject to certain exceptions, that their actions willnot degrade those ecosystems
Executive Order 13,089 also created the U.S Coral Reef Task Force (CRTF) Chaired by theSecretaries of the Interior and Commerce, the CRTF has the following responsibilities: to coordinateefforts to map and monitor all U.S coral reefs; to research the causes of, and solutions for, coralreef degradation; to reduce and mitigate coral reef degradation from pollution, overfishing, andother causes; and to implement strategies to promote conservation and sustainable use of coralreefs internationally (Exec Order No 13,089, 1998)
In March 2000, the CRTF released a National Action Plan calling for 20% of all U.S coralreefs to be designated as no-take ecological reserves by 2010 (CRTF 2000) A no-take zone is aparticular type of MPA that bans all consumptive uses, including fishing and mineral extraction(Sanchirico 2000) The National Action Plan also calls for all U.S coral reefs to be mapped by2007; only a small percentage of U.S reefs have been adequately mapped (Sanchirico 2000) In
2002, the CRTF published a National Coral Reef Action Strategy to assess what it had accomplishedand priorities for reducing the adverse impacts of human activities (CRTF 2002)
During one of its first meetings, the CRTF voted to take complaints from members of thepublic who believe a federal agency has violated the executive order (Orlando Sentinel 1999) Thefirst complaint came in late 1999 from the government of Puerto Rico (Commonwealth of PuertoRico v Rumsfeld, 2001), which accused the U.S Navy of destroying its coral reef during bombingexercises in Vieques (L.A Times 1999) The CRTF National Action Plan also states that theDepartment of Defense (DOD) is actively working to implement Executive Order 13,089 “to themaximum extent feasible consistent with mission requirements” (CRTF 2000) That commitment,though, gives DOD great latitude in determining what is feasible Also, Congress recently freed theDOD from some restrictions on its activities imposed by laws that provide some protection to coralreefs and creatures that depend on reefs for their survival The National Defense Authorization Actfor Fiscal Year 2004 (NDAA) amends, among other things, the Endangered Species Act and theMarine Mammal Protection Act (MMPA) to limit their applicability to activities of the DOD NDAAamends MMPA to exempt for up to 2 years any action “necessary for national defense” and exemptsmilitary bases from some of the Endangered Species Act’s habitat-protection requirements.The CRTF’s National Action Plan was followed that same year by the Coral Reef ConservationAct of 2000 (16 U.S.C §§ 6401–6409), the first legislation ever specifically targeted at coral reefissues The Act incorporated by reference the provisions of Executive Order 13,089 It continuesthe CRTF and the U.S Coral Reef Initiative, an existing partnership between governmental andcommercial interests whose purpose is to design “management, education, monitoring, research,and restoration efforts to conserve coral reef ecosystems….” A primary objective of the Coral ReefConservation Act is to provide matching grants, subject to the availability of funds, to coral reefconservation projects
Because the CRTF comprises representatives from 11 agencies, it represents a more coordinatedeffort than in the past Assuming the CRTF continues to receive adequate funding, it may providemuch-needed leadership in responding to a growing environmental crisis both in the United Statesand internationally
8.2.5 E NDANGERED S PECIES A CT
The marine sanctuary approach to coral reef preservation attempts to conserve reefs as a whole.Regulations in the Florida Keys National Marine Sanctuary, for example, forbid removing, injuring,2073_C008.fm Page 149 Friday, April 7, 2006 6:14 PM
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and even possessing any coral or live rock (15 C.F.R § 922.163) They also forbid collecting manyspecies of fish, anchoring on live coral, and discharging waste anywhere in the sanctuary Anotherapproach to conserving reefs is to protect specific coral species under the Endangered Species Act(ESA) (16 U.S.C §§ 1531-1544) While ESA covers numerous marine creatures such as sea turtlesand many species of reef and other fish, no corals have been added to the Federal Lists of Endangeredand Threatened Wildlife and Plants (ESA lists)
In 1999 the National Marine Fisheries Service (NMFS) began to consider adding two species
of coral found in the Caribbean to the ESA lists — elkhorn coral and staghorn coral (64 Fed Reg
2629, 1999) According to NMFS, nearly 96% of corals of these two species have disappearedduring the last two decades due to hurricane damage, coral diseases, increased predation, boatgroundings, sedimentation, and other factors (NMFS 2004 and 2004a) While scientists and activistsdebate whether a species-by-species approach can be effective when an entire ecosystem is underattack, many are supportive of any legal effort that enhances reef protection
If these coral species are added to the ESA lists, they would receive protection throughouttheir habitat range, which includes areas currently outside the designated sanctuaries in the UnitedStates ESA forbids importing, taking, or even possessing species on the ESA lists (16 U.S.C
§1538(a)(1)(A)-(D)) Since most of the public do not see corals and are not even aware that coralsare living creatures, adding corals to ESA could also serve as notice to the public that corals ingeneral are disappearing
ESA’s ban on the import of listed species into the United States is another important legalprotection (16 U.S.C § 1538(a)(1)(A)) Reefs in the Philippines are being decimated by activitiessuch as harvesting for export (Broad and Cavanagh 1993) Currently the United States is the mainimporter of stony corals from the Philippines as curios, even though legislation such as the MPRSAbans collection on our own reefs (16 U.S.C §§ 1436-37, 15 C.F.R § 922.122) More than half ofthe Philippines’ exports of ornamental coral and exotic reef fish are sent to the United States (Broadand Cavanagh 1993) If ESA listed more coral species and banned their import, then fewer coralswould likely be harvested in other countries because some of the U.S market would dry up, atleast among those who wish to comply with U.S law
Another argument for including species of coral on the ESA lists is that while naming individualspecies, ESA actually provides protection for the species’ entire ecosystem As ESA states, “thepurposes of this [Act] are to provide a means whereby the ecosystems upon which endangeredspecies and threatened species depend may be conserved.” (16 U.S.C 1531(b)) ESA forbidsharming species included on the ESA lists (16 U.S.C §§ 1532(19), 1538(a)(1)(B)-(D)) Federalregulations implementing ESA define the word “harm” in the definition of “take” to mean “an actwhich actually kills or injures wildlife Such acts may include significant habitat modification ordegradation where it actually kills or injures wildlife by significantly impairing essential behavioralpatterns, including breeding, feeding or sheltering” (50 C.F.R § 17.3 (2000)) The U.S SupremeCourt upheld this definition in Babbitt v Sweet Home Chapter of Communities for a Great Oregon.
However, Justice Scalia, in a dissent joined by Chief Justice Rehnquist and Justice Thomas, arguedthat the destruction of habitat does not “harm” an endangered species within the meaning of ESA.This dissent coincides with growing complaints that ESA was mostly intended to preserve largeanimals, not tiny creatures and their habitat (Petersen 1999)
In later amendments to ESA, Congress required that critical habitat be designated at the sametime a species is listed (16 U.S.C § 1533(b)(6)(C)) These provisions could provide enhancedprotection for entire reefs where staghorn and/or elkhorn corals are located Reefs are “extremelysusceptible to sewage and industrial wastes, oil spills, siltation, and water stagnation brought about
by dredging and filling, thermal pollution, and flooding with low salinity or silt-laden water resultingfrom poor land management” (Gold 1988) If the regulating agencies could prove the necessarynexus between these harms and destruction of the endangered corals’ habitat, then ESA couldbecome a powerful tool in combating reef degradation, just as it has been in rescuing individualspecies threatened with extinction
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The federal provisions described above have overlapping purposes but leave many gaps in theprotection of coral reefs Table 8.1 summarizes the major domestic initiatives aimed at preservingmarine resources, including coral reefs
The federal coral reef initiatives have been piecemeal until just recently Executive Order 13,089directly placed an affirmative duty on federal agencies not to harm coral reefs Equally importantwas its directive to the CRTF to determine the extent of the United States’ coral reefs and to mapthem With that information in hand, and the necessary executive and congressional will, bodiessuch as the CRTF can devise and implement strategies to prevent further degradation of our coralreefs and make recommendations for more comprehensive legislation to preserve our reefs for thelong term
When they receive adequate funding to enforce them, the federal protections for coral reefsare useful But, as stated earlier, we need greater control over human activities away from the reefsthat contribute to reef degradation This includes not only land-based sources of pollution andsedimentation but also human behavior contributing to global climate change (Wilkinson 2000).The federal efforts to protect coral reefs are not without criticism, both from those who wouldlike to exploit the resources in the sanctuaries and from conservationists The Eleventh CircuitCourt of Appeals discussed the controversial designation of the Florida Keys National MarineSanctuary and opposition to it by Florida’s governor in the 1996 case United States v M/V Jacquelyn L.
As one ardent supporter of the Florida reefs complains, “Generally, I think that local, peer-supported,community-based initiatives are honored whereas mandates from afar tend to be unenforceable andunenforced in most instances unless there is a heavy enforcement hand onsite” (Quirolo, personalcommunication, 2001) This critic believes that areas of the Florida Keys sanctuary were actuallymore protected prior to the sanctuary designation because the federal law does not provide adequateenforcement measures
The United States has made great strides in recent decades in recognizing the importance ofcoral reefs and attempting to provide legal protections for some of them, but these protectionsobviously are not enough Sanctuary status has not prevented the precipitous decline in the Floridareef system Five hundred ship groundings a year occur in the Florida Keys National MarineSanctuary (Spalding et al 2001) Agricultural runoff from the mainland and sewage dumping from22,000 septic tanks, 5000 cesspools, and 139 marinas all contribute to pollution and eutrophication
in the sanctuary (Spalding et al 2001) The sanctuary program needs to be coordinated with stateand local efforts to eliminate these sources of pollution As of 2001, only 1% of the total sanctuaryarea in Florida had been designated as no-take marine reserves (Spalding et al 2001) Those areasshow signs of recovery (Spalding et al 2001), and the no-take designations should be increased.These measures and a commitment to continue funding the efforts of the sanctuary programs, theCRTF and the MPA initiative, are essential to preserving the other U.S coral reefs that have notyet borne the sustained assault that the Florida reef has
The United States is slowly recognizing that coral reefs are a precious resource that requireslegal protection The Clinton administration made several attempts to address coral reefs directly
It remains up to present and future administrations to see that these laws are utilized for themaximum protection of reefs
8.3 INTERNATIONAL PROTECTIONS FOR CORAL REEFS
A variety of international legal instruments either directly or indirectly provide protection for coralreefs Though these measures offer promise for enhanced protection of reefs, the level of protectiondepends on the ratification and enforcement of these instruments
The United Nations Convention on the Law of the Sea (UNCLOS) remains the guiding documentfor ocean issues, but many other specialized conventions potentially afford greater protections forcoral reefs While this chapter addresses national and international laws and conventions that can2073_C008.fm Page 151 Friday, April 7, 2006 6:14 PM
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TABLE 8.1
Summary of Domestic (U.S.) Provisions Affecting Coral Reef Conservation
Provision Date Scope of Provision Terms of Provision Effect on Corals
Marine Protection
Research and
Sanctuaries Act
(MPRSA)
dumping, to protect ocean habitat
Secondary benefits to reefs
Sanctuaries
Act (formerly
Title III of MPRSA)
designate protected sites within ocean territories and regulate activities within sites
Coral reefs located in five
of the designated sanctuaries
Executive Order
13,089
to ensure that their actions
do not degrade reef ecosystems; creates the CRTF to research and implement strategies to map and protect coral reefs
No enforceability against noncompliant agencies
Executive Orders
13,178 and 15,158
northwestern Hawaiian Islands
Caps fishing at year 2000 levels and prohibits other commercial activities
Reserve is a coral reef ecosystem
Same as Executive Order 13,089 and provides additional resources for reef conservation
geographical, historical, aesthetic value
Authorizes president to designate sites of historical
or scientific interest that are situated on federal public lands as national monuments; each site to be limited to the smallest area compatible with the proper care and management of the objects to be protected
Used by presidential proclamation in 2001 to create and expand two national monuments
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protect reefs, it should be noted that traditional systems of control like customary tenure, wherecommunities have ownership of reefs and their resources, frequently produce highly effective forms
of reef management (Spalding et al 2001)
8.3.1 U NITED N ATIONS C ONVENTION ON THE L AW OF THE S EA
UNCLOS is the primary convention regarding the use of the ocean and its resources UNCLOS grantsevery state “the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nauticalmiles, measured from baselines determined in accordance with this Convention.” The Conventionstates that “waters on the landward side of the baseline of the territorial sea form part of the internalwaters of the State.” Moreover, Articles 56 and 57 of the Convention give coastal states sovereignrights in an “exclusive economic zone” out to 200 miles Because most reef formations are limited
to waters of less than 50 m depth (Gold 1988), they tend to occur in near-shore waters This placesthe majority of coral reefs within countries’ internal waters and exclusive jurisdiction
Reefs are specifically mentioned in Article 6 of UNCLOS, which states that “in the case ofislands situated on atolls or of islands having fringing reefs, the baseline for measuring the breadth
of the territorial sea is the seaward low-water line of the reef.” Thus it might appear that UNCLOSdoes not provide much protection for coral reefs because they are within a state’s internal waters.However, UNCLOS was a landmark treaty in the development of international environmental lawbecause it contains many conservation-oriented provisions (Hafetz 1999) Specifically, it requiresstates to protect and maintain their marine species, even within internal waters
The preamble to UNCLOS states that among the primary objectives of the 1982 convention isthe “study, protection, and preservation of the marine environment.” UNCLOS provides “the firstcomprehensive statement of international law on the issue … [and] a movement toward regulationbased upon a more holistic conception of the ocean as a resource that is exhaustible and finite, andocean usage as a resource management question” (McConnell and Gold 1991) Even within theexclusive economic zones of coastal states, UNCLOS states that “the coastal State … shall ensurethrough proper conservation and management measures that the maintenance of the living resources
in the exclusive economic zone is not endangered by over-exploitation.”
UNCLOS contains many positive obligations that affect marine resources in national waters.Part XII of the convention sets forth many of the international legal requirements pertaining to themarine environment, including a system for enforcing those requirements Article 192 sets forththe general obligation “to protect and preserve the marine environment.” Article 193 recognizesthe “sovereign right [of States] to exploit their natural resources” but this is subject to the “duty
to protect and preserve the marine environment.” Some of the specific requirements include takingmeasures necessary to “prevent, reduce, and control pollution of the marine environment,” and toensure that activities “are so conducted as not to cause damage by pollution to other States andtheir environments.” States must consider all sources of pollution to the marine environment,including the following: harmful or noxious substances from land-based sources, the atmosphere,
or dumping; pollution from vessels; and contamination from other installations used to explore theseabed and subsoil
The duties expressed in Articles 192 to 194 are binding on states–parties to the Convention.Because 157 states have signed UNCLOS and 145 have ratified it (United Nations 2004), manycommentators believe that the provisions are also statements of customary international law, whichwould make them binding on all nations, including those countries that are not parties to the convention(Hafetz 1999, Iudicello and Lytle 1994) Therefore, even though some countries, including the UnitedStates, have not ratified UNCLOS, they may be bound by many of its principles Interestingly, in
2004, the United States Commission on Ocean Policy, in the first major federal assessment of theoceans in a generation, called on the Congress and the Bush administration to end the United States’22-year refusal to officially join UNCLOS (Barringer 2004) The White House responded that thePresident “has put the treaty on the top priority list for ratification” (Barringer 2004)
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Prior to UNCLOS, little international regulation of the marine environment or its conservationexisted UNCLOS’s provisions for the protection and preservation of the marine environmentreflected the growing awareness of what was happening to our oceans Unfortunately, many nationshave not ratified the Convention, in part because of its controversial deep seabed provisions.Therefore, a major issue today is whether the Convention reflects customary international law sothat it is binding on all nations and not just those that are parties to the convention
Ten years after the drafting of UNCLOS, more than 178 governments adopted Agenda 21, thefinal document of the United Nations Conference on Environment and Development(“UNCED”) held in Brazil in 1992 (United Nations Department for Economic and SocialAffairs 2002) Agenda 21 reaffirmed many of the goals of UNCLOS but also recognized that
“despite national, subregional, regional, and global efforts, current approaches to the ment of marine and coastal resources have not always proved capable of achieving sustainabledevelopment, and coastal resources and the coastal environment are being rapidly degradedand eroded in many parts of the world” (UNCED 1992) Chapter 17 of Agenda 21 gives theprotection of coral reefs high priority and calls for an integrated, international approach fortheir protection and use
manage-To implement Chapter 17 and other international conventions, the International Coral ReefInitiative (ICRI) was created at the Small Island Developing States conference in 1994 (ICRI 2004).Through ICRI, over 80 developing countries with coral reefs “sit in equal partnership with majordonor countries and development banks, international environmental and development agencies,scientific associations, the private sector, and NGOs to decide on the best strategies to conservethe world’s coral reef resources” (ICRI 2004a) ICRI has developed “action plans” for all regions
of the world and is now working with national governments and organizations to implement thoseplans (ICRI 2002) Like the CRTF, ICRI is still relatively new, and it remains to be seen whethereither body becomes an important force in the fight to preserve coral reefs
Chapter 15 of Agenda 21, titled “Conservation of Biological Diversity,” calls for immediateaction in protecting the diversity of plant and animal resources Chapter 15 states:
Despite mounting efforts over the past 20 years, the loss of the world’s biological diversity, mainly from habitat destruction, over-harvesting, pollution and the inappropriate introduction of foreign plants and animals, has continued… Urgent and decisive action is needed to conserve and maintain genes, species and ecosystems, with a view to the sustainable management and use of biological resources.
Chapter 15 is especially significant for coral reefs because of their high biodiversity
Agenda 21 represents a major development in ocean stewardship Where previous internationalagreements looked at protecting specific ocean resources such as marine mammals and fish,Agenda 21 recognizes the need for overall sustainable ocean development (Craig 2002)
8.3.3 C ONVENTION ON B IOLOGICAL D IVERSITY
UNCED also produced the Convention on Biological Diversity (CBD) (CBD 1992) The preamble
to the convention asserts that “the conservation of biological diversity is a common concern ofhumankind.” As the primary international agreement on biodiversity issues, the CBD’s threeobjectives are the “conservation of biological diversity, sustainable use of its components, and afair and equitable sharing of the benefits of genetic resources” (U.S Department of State 1999) The CBD does not name specific ecosystems but provides for the identification and monitoring
of two distinct categories: (1) ecosystems and habitats; and (2) species and communities (CBD1992) Among the factors to consider in identifying ecosystems and habitats for protection are2073_C008.fm Page 154 Friday, April 7, 2006 6:14 PM