Back to HTML Index CHAPTER 3: OCEAN JURISDICTION AND MANAGEMENT




The waters off the California coast include a complex array of State, federal, and international jurisdictions, including State tidelands and submerged lands (State Tidelands), the outer continental shelf, the territorial sea, the contiguous zone, the exclusive economic zone and high seas. The jurisdictions are used to describe areas of offshore ownership, sovereignty, various forms of mineral, fishery, and national security rights, or regulatory controls. State Tidelands are owned and regulated by California. However, the State's ability to control or benefit from the resources or uses beyond State Tidelands are frequently unclear under existing law and practice.


OCEAN JURISDICTIONAL DESIGNATIONS

Ocean jurisdictions include some offshore regions with clearly defined sovereignty and regulatory regimes, while others have become less clear due to recent national and international developments (see Figure 3-1). Current ocean jurisdictional designations offshore California are:

 
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JURISDICTIONAL HISTORY

Debate over who controls and manages the waters and resources found offshore the United States began in the late 1700's and continues to this day. Issues in this debate include key federal and State relationships which must be better understood for effective management of California's ocean resources.

Soon after the founding of the United States, the newly formed federal government asserted sovereignty over a territorial sea extending three miles from the coast. Moreover, the coastal states asserted the ability to develop ocean resources out to three miles. Over the past 45 years, however, a number of events have occurred which drastically modified management of the offshore area. In 1947, the United States Supreme Court upset what had appeared to be settled law and determined that the United States, rather than coastal states, had paramount rights over the nation's coastal waters and resources [United States v. California, 332 U.S. 19 (1947)]. This decision was surprising to coastal states, and set the stage for a debate resulting in the enactment of the Submerged Lands Act of 1953 (granting coastal states ownership of the lands and resources out to three nautical miles from shore). Also enacted was the Outer Continental Shelf Lands Act of 1953, establishing federal jurisdiction over the resources beyond three nautical miles from shore and creating a legal process for developing those resources.

In the early 1970's, Congress recognized that activities beyond states' control and jurisdiction could significantly affect coastal states. Congress enacted the Coastal Zone Management Act (CZMA; 16 U.S.C. 1451 et seq.) in 1972, providing a crucial link between coastal states and federal activities, or federally permitted activities, which occur just beyond state waters. As an incentive for states to develop management plans for their coastal resources, the Congress granted states the ability to review, and in some circumstances stop, federally permitted activities which "affect" the resources of the coastal zone, if those activities are not consistent with the federally approved state coastal program. However, the CZMA allows the U.S. Department of Commerce to override a state's objection to a federal permit activity if the Secretary for Commerce finds that the objection is not
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Figure 3 - 1
supported by the approved coastal management program, or the activity is otherwise required in the interests of national security.

In 1978, for purposes of the CZMA, the federal government certified the California Coastal Act of 1976 (Coastal Act; PRC 30000 et seq.) as a segment of California's Coastal Management Program (CCMP) for all portions of the coast except San Francisco Bay. The Coastal Act is one of the most comprehensive coastal management statutes in the country. The San Francisco Bay Conservation and Development Commission (BCDC) administers an equally comprehensive segment of the CCMP for San Francisco Bay. Both programs differ substantially from most environmental laws because they approach coastal zone management and development in a comprehensive manner. The third segment of the CCMP is the State Coastal Conservancy, which oversees and funds numerous coastal programs and the acquisition of coastal property. California has extensively and effectively used all three segments of its CCMP to review federal activities and federally permitted activities -- most frequently outer continental shelf (OCS) oil and gas projects -- for determining consistency with the policies of the State's programs.

Recent developments in U.S. coastal management are closely related to developments in international law. International conventions addressing the territorial sea and continental shelf have recognized that coastal nations can exert jurisdiction and authority over resources far from the coast. In 1976, acknowledging the national interest of establishing sound management practices for fishery resources within a 200-mile zone, the Congress passed the Magnuson Fishery Conservation and Management Act (Magnuson Act; 16 U.S.C. 1801 et seq.). Passage of the Magnuson Act was the first unilateral declaration of jurisdiction over a 200-mile zone by a major power.

The United States followed other nations when, on March 10, 1983, President Reagan established by proclamation an EEZ for the United States. The President expanded upon the Magnuson Act's declaration of jurisdiction by declaring sovereign rights over all living and non-living resources within 200 miles of the United States' shoreline. The Congress confirmed presidential designation of the EEZ in 1986 amendments to the Magnuson Act. The EEZ does not include and is not intended to address activities within State tidelands, although the Magnuson Act can substantially impact fisheries management in these waters. If the Secretary of Commerce determines that a state is taking actions in state waters which are adverse to a fishery regulated under the Magnuson Act, the Secretary can intervene and regulate that fishery in state waters.

In a December 27, 1988 proclamation, President Reagan extended the seaward limit of the United States' territorial sea from three to 12 nautical miles from shore for purposes of international law. The proclamation itself was essentially silent on its ramifications for domestic law, thus leaving unresolved questions regarding future regulation and ownership of this area. To date, Congress has not acted to confirm the proclamation thus creating considerable ambiguity over the applicability of domestic laws in the area between 3 and 12 miles offshore. This ambiguity is significant because the term "territorial sea" is used in approximately 68 different federal statutes.


STATE MARINE RESOURCE MANAGEMENT AGENCIES

Ocean management in California is addressed by three "super agencies" and their respective boards,
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departments, commissions and conservancies (collectively referred to as "departments"). These super agencies are the Resources Agency, California Environmental Protection Agency, and Health and Welfare Agency. Under each agency, and within each of the sibling departments, a host of mandates, laws, regulations, and management activities provide protection and management of marine resources. Ocean management responsibilities for these agencies and their departments are provided in more detail in Appendix B.

Resources Agency of California

The Resources Agency of California is a cabinet-level agency created in a 1961 reorganization of California State government. The Resources Agency oversees and coordinates the activities and administration of 15 departments, all relating to the preservation, management and enhancement of California's natural and cultural resources, including land, wildlife, water, timber, and minerals.

Assembly Bill 205 (Chapter 1027, Stats.1991) transferred to the Resources Agency all executive branch delegations regarding review and coordination of federal OCS oil and gas lease sales and development projects, policy coordination of resources and uses in the EEZ, State representation to the Coastal States Organization and the Department of the Interior's OCS Policy Committee, and participation in other ocean and coastal resource issues. Those departments within the Resources Agency with some authority over, or whose actions can impact, the management of ocean and coastal resources include the:
California Environmental Protection Agency

The California Environmental Protection Agency (Cal EPA), a cabinet-level agency created in a 1991 reorganization of State government, coordinates the policies and activities of various boards and commissions under its purview. While the authority to manage the majority of ocean management issues rests with the Resources Agency, Cal EPA oversees the development of ocean water quality standards and the regulation of waste discharges. These responsibilities reside within the:

 
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California Health and Welfare Agency

The California Health and Welfare Agency (HWA), created in 1961, is a cabinet-level agency which administers state and federal programs for health care, social services, public assistance and job training. The majority of this agency's activities do not specifically address ocean issues, yet it plays a critical role in protecting public health as it relates to the safety of marine waters, bathing beaches, and seafood consumption. These responsibilities reside within the:

FEDERAL MARINE RESOURCE MANAGEMENT AGENCIES

Federal jurisdiction over ocean resources is divided among seven large departments, including the Department of Commerce, Department of the Interior, Department of Transportation, and Environmental Protection Agency-- an quasi-independent agency within the executive branch. Because these departments are large and their mandates in the marine environment are extensive, a summary of their roles in ocean resource management is included here, while more detail is provided in Appendix C.

U.S. Department of Agriculture

The Department of Agriculture promotes the conservation of soil, water, and related resources. Housed within the Department of Agriculture is the Natural Resources Conservation Service (NRCS; previously known as the Soil Conservation Service), established under the authority of the Soil Conservation Act of 1935 (PL 74-46). The NRCS provides technical and financial assistance to farmers, ranchers, and state and local governments to reduce soil erosion and sedimentation, prevent flood damages, conserve water and improve water quality, reduce energy requirements, and assure agricultural productivity. The NRCS plays an important role in the inland watershed zone by helping to reduce erosion and the related adverse impacts to California's enclosed waters and nearshore ocean resource zones.

U.S. Department of Commerce

The National Oceanic and Atmospheric Administration (NOAA) was formed on October 3, 1970 and is located within the Department of Commerce. NOAA is dedicated to long-term stewardship of the Earth's marine and air resources, with a mission to observe, describe, and predict the natural variability of the global Earth system, including the ocean, the atmosphere, and features of the solid Earth and near-space environment, and to detect any changes in the Earth system caused by human activity. General responsibilities include conservation of marine living resources and protected species, and associated services to the fishing industry; oversight of atmospheric and hydrological resources; marine environmental assessment, management, and resource restoration; production of comprehensive environmental science data; and leadership in research and education in the earth sciences to serve the economy. The five major divisions within the NOAA are the:

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U.S. Department of Defense

The Department of Defense (DOD) owns property along the coast, requiring that any activities offshore those properties be consistent with military operations, and oversees activities of the U.S. Army Corps of Engineers (Corps). Under authority of the Rivers and Harbors Act, Section 404 of the Clean Waters Act, and the Marine Protection, Research and Sanctuaries Act (MPRSA or Ocean Dumping Act), the Corps develops, controls, maintains, and conserves the nation's navigable waters and wetlands. The Corps regulates development of any project involving fill, construction, or modification of waters of the United States. For example, pursuant to Section 103 of the MPRSA the Corps is authorized to permit disposal of dredged material into the ocean, if the Corps determines that "the dumping will not unreasonably degrade or endanger human health, welfare, or amenities, or the marine environments, ecological systems, or economic potentialities." However, the Corps is prohibited from issuing such a permit if the Environmental Protection Agency finds that the proposal cannot meet its criteria established for disposal site selection pursuant to Section 102 of the MPRSA.

U.S. Department of the Interior

The Department of the Interior (DOI) supervises a broad range of management activities regarding federal land, wildlife, mining, water, and energy resources. The DOI bureaus that manage resources or conduct activities which potentially impact ocean and coastal resources are the:


U.S. Department of Transportation

The Department of Transportation houses the U.S. Coast Guard and the Maritime Administration. A branch of the armed forces, the U.S. Coast Guard (USCG) is the federal government's primary maritime law enforcement agency which operates as part of the U.S. Navy in times of war. In general, the USCG enforces federal laws and treaties of the United States on the high seas and in federal waters. The USCG's mission includes maritime law enforcement, national security, maritime safety and marine environmental protection.

The U.S. Maritime Administration (MARAD) administers federal programs aiding the development, promotion, and operation of the United States Merchant Marine. The MARAD has no direct ocean resource management responsibilities other than those imposed by the federal Clean Water Act and
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other laws regulating it as an owner of vessels in marine waters, such as those relating to oil spills and cleanup, and discharge of wastewater or hazardous materials. In addition, inasmuch as the MARAD has duties relating to contracts for the construction or conversion of vessels in the maritime fleet, it is responsible for ensuring that construction meets standards for ship construction, especially as relating to hazardous waste and oil.

U.S. Environmental Protection Agency

In 1970 the Environmental Protection Agency (USEPA) was established within the executive branch of the federal government with two major functions: research and development, and abatement and control of pollution through a combination of research, monitoring, standard-setting, and enforcement activities. The USEPA administers and enforces provisions of various statutes that apply to ocean management, including the federal Clean Water Act, Marine Protection, Research, and Sanctuaries Act, Coastal Zone Management Act (CZMA), and federal Insecticide, Fungicide, and Rodenticide Act. For example, pursuant to Section 102 of the Marine Protection, Research and Sanctuaries Act (MPRSA or Ocean Dumping Act) the USEPA is authorized to designate ocean sites for the dumping of wastes, including dredge spoils. The USEPA has developed five general criteria and 11 specific factors that must be considered in designating such disposal sites. As stated in the Army Corps of Engineers discussion above, the Corps is prohibited from issuing a dredge disposal permit if the USEPA finds that the proposal cannot meet its criteria for disposal site selection pursuant to Section 102 of the MPRSA. In another example of USEPA ocean management authority, the 1990 amendments to the CZMA authorized establishment of a Coastal Nonpoint Source Pollution Program to reduce nonpoint sources of pollution in coastal waters. Both the National Oceanic and Atmospheric Administration and USEPA administer this program pursuant to the CZMA.

U.S. Food and Drug Administration

The Food and Drug Administration (FDA) is an agency of the U.S. Department of Health and Human Services. The FDA's primary responsibility is to administer the laws regulating the manufacture, branding, and use of drugs and commerce in foods, drugs, and cosmetics. Although the FDA has no direct ocean resource management responsibilities, it is responsible for the examination and inspection of seafood for shipment or sale, and the seizure of shellfish that are contaminated by harmful bacteria in the waters where they grow and that are deemed adulterated. Impacts on fish and shellfish contaminated by hazardous substance spills in ocean and coastal areas are administered as adulterated foods in an analogous manner.


CALIFORNIA STATUTES RELATING TO OCEAN MANAGEMENT

The Chair of the Assembly Select Committee on Marine Resources (Assemblymember Deirdre Alpert), in cooperation with the Resources Agency, requested the State Legislative Counsel's office to prepare a listing of California ocean management statutes to assist the Agency in developing this Agenda. The complete listing is included as Appendix D, a review of which leads to the following observation:

Multiple statutes and multiple codes. Provisions for regulating and managing ocean resources and
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waters are contained in a variety of statutes located in seven different California codes: the Fish and Game, Government, Harbors and Navigation, Health and Safety, Penal, Public Resources, and Water Codes. Often a given issue may be addressed in several places within one code, while also being addressed in other codes. Statutes criss-cross various code sections to achieve appropriate single-issue purposes, but their development on an incremental basis has led to a body of law lacking cohesion. Unfortunately, this fragmented approach often results in confusion over agency roles and responsibilities, making it difficult for ocean users and government regulators to understand legal requirements relating to a specific issue.

Complications with the existing ocean management regime exist in part because State law may delegate agency authority by subject area, activity location, funding source, or land management responsibility. For instance, development of a State funded recreational boating facility in State Tidelands offshore a State park would involve the Department of Parks and Recreation and State Lands Commission (land managers), Department of Fish and Game (wildlife protection), Coastal Commission (impacts to the Coastal Zone), Regional Water Quality Control Board (water quality), and Coastal Conservancy or Department of Boating and Waterways (funding). Not only must these agencies coordinate processes and procedures at the State level, but also with their counterparts at the federal and local levels.

One by-product of this complexity is the fact that many laws relating to ocean management are outdated and refer to processes that were completed years ago. These outdated provisions often go undiscovered for years because they get lost in the length and complexity of the existing codes relating to ocean planning and management.


FEDERAL STATUTES RELATING TO OCEAN MANAGEMENT

Assemblymember Bruce McPherson, in cooperation with the Resources Agency, requested the State Legislative Counsel's office to prepare a listing of federal ocean management statutes to assist the Agency in developing this Agenda. The complete listing is included as Appendix E, a review of which leads to the following observation:

Multiple statutes and multiple regulations. Provisions for regulating and managing ocean resources and waters are contained in a multitude of federal statutes and associated regulations. Some laws such as the Coastal Zone Management Act, were passed with the purpose of addressing multiple ocean and coastal management issues. Other laws have other principal purposes, but may impact ocean management through either a specific provision or set of provisions. An example of this is the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C.A. 136 et seq.) which restricts the introduction of toxic chemicals into the environment, including both the inland and coastal waters. The statute includes provisions regulating the application of de-fouling chemicals to boat hulls, as well as provisions for the use of many other chemicals that can affect water quality. This law is just one of many identified that can substantially impact the health and sustainability of ocean resources, but may not be immediately associated within the context of ocean management.

The issue analyses in Chapter 5 describe how many of these statutes apply to ongoing ocean management concerns. Examples of federal statutes addressed in the issue analyses include the
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Coastal Zone Management Act; Federal Water Pollution Control Act (Clean Water Act); Marine, Protection, Research and Sanctuaries Act; Oil Pollution Act; Outer Continental Shelf Lands Act; Endangered Species Act; Magnuson Fishery Conservation and Management Act; and Marine Mammal Protection Act.


COORDINATION OF JURISDICTIONS AND PROGRAMS

Ocean planning and management is inextricably linked to the need for accountability and coordination between all levels of government, the public, and the private sector. The ability for federal, state, and local governments to effectively coordinate management activities is a challenging task. However, this coordination is critical to efforts such as watershed management, oil spill prevention and response planning, offshore oil and gas developments, port development projects, and habitat restoration projects. Two case studies exemplify the complexity of the environmental review process; the first for a major water quality initiative, and the second for federal, State, and local agency review of a major oil production facility.

Monterey Bay National Marine Sanctuary Water Quality Plan - A Case Study

The Water Quality Protection Plan currently being prepared for the Monterey Bay National Marine Sanctuary (MBNMS) is intended to: 1) identify water quality priority problems; 2) identify pollution sources associated with such problems; and 3) develop strategies for addressing the problems. The study area includes eleven watersheds and three large ocean segments. The plan development process began in January 1994 and is scheduled for completion by January 1996.

The plan is being developed using an approach known as "Integrated Coastal Management," which involves all affected parties (stakeholders) in a systematic process to identify existing statutory authorities and programs, and use this information to develop a comprehensive approach to protect and improve water quality within the MBNMS. This regional approach to water quality maintenance and enhancement draws on the expertise and services of scientists, water quality specialists, government agency staff, and private organization representatives (over 125 people participated in a three-day workshop held in January 1994 to develop draft strategies). This water quality protection effort addresses the four resource zones identified as part of California's ocean ecosystem in Chapter 4 (the inland watershed zone, the enclosed waters zone, the nearshore ocean zone, and portions of the offshore ocean zone).

The interim document prepared following the 3-day workshop has identified at least 34 federal, 46 State, and 34 local programs that relate to the development of a comprehensive water quality approach within this region. This information has been used to identify over 90 "strategies" that are being evaluated for use in maintaining or improving water quality along this segment of the California coastline. These strategies address four major categories: point source pollution, nonpoint source pollution, water management, and general water quality issues. For a strategy to be considered for implementation, it must contain, among other things, information on cost and financing, regulatory requirements, staffing and other resource requirements, and prerequisite activities. An example of the draft strategies under consideration is:
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Reduction of Tidal Scour in Elkhorn Slough: tidal scour within Elkhorn Slough is currently eliminating approximately 10 acres of wetland habitat per year. This loss could be substantially reduced by installing an underwater sheet pile barrier at the mouth of the Slough to reduce current velocities and the volume of water that passes into and out of the Slough. This reduction in flow would substantially reduce erosion and the resulting loss of wetlands. Many agencies would be involved with the project, which would be constructed by the Army Corps of Engineers at a cost of approximately $1 million.

Final development of the MBNMS Water Quality Protection Plan, if successful, could provide a model for maximizing the effectiveness of regional water quality protection and enhancement efforts. Integrating the many government programs and non-governmental approaches will help provide greater accountability, sharing of knowledge, and coordination between these efforts. It can also allow the use of existing or modified programs to achieve water quality objectives while reducing duplicative management efforts within the region.

Outer Continental Shelf Oil and Gas Production - A Case Study

Another way to demonstrate the multi-layer jurisdictions involved in ocean management is to identify the major agencies and their roles in the review of a proposal to locate an offshore oil and gas production facility on the outer continental shelf (a production platform, a pipeline to shore, and onshore processing facilities).

Federal Examples

Minerals Management Service: leases the federal outer continental shelf, as well as conducts environmental review, permit processes, and ongoing monitoring for specific proposals to explore for, or produce oil and gas resources.

National Marine Fisheries Service: protects marine species that could be affected by the development, including most marine mammals and Salmon, and conducts a consultation with the applicant to determine if the development would threaten the continued existence of any protected species pursuant to the federal Endangered Species Act.

U.S. Army Corps of Engineers: requires permits to locate any surface structures in navigable waters.

U.S. Coast Guard: implements provisions of the Oil Pollution Act of 1990 and requires adequate provisions to prevent and respond to oil spills that could occur from these facilities.

U.S. Environmental Protection Agency: regulates operational discharge requirements under the Clean Water Act (usually concerning the dumping of drill muds and cuttings) and air quality impacts under the Clean Air Act.

U.S. Fish and Wildlife Service: protects certain species that could be affected by offshore oil and gas operations, such as Southern Sea Otters, and conducts a consultation with the applicant to 
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determine if the development would threaten the continued existence of protected species pursuant to the federal Endangered Species Act.

State Examples

California Coastal Commission: conducts federal consistency review of federal permits for any activity that may "affect" the coastal zone, and issues Coastal Development Permits for activities in State tidelands and within land portions of the Coastal Zone, if local governments have not assumed the land permitting role under the California Coastal Act.

Division of Oil and Gas: reviews the safety of oil and gas operations.

Department of Fish and Game: reviews potential impacts of the project on the State's wildlife resources.

Office of Oil Spill Prevention and Response: reviews and approves all oil spill prevention and contingency plans for project operations.

State Lands Commission: leases State Tidelands and administers lease agreements for oil and gas production activities on land. In the case of a production facility located in federal waters, the State Lands Commission would issue a right-of-way lease for the portion of the pipeline which would cross State tidelands.

State Water Resources Control and Regional Water Quality Control Boards: administers the National Pollution Discharge Elimination System requirements for discharges from project facilities.

Local Government Examples

Land Use and Environmental Quality Reviews: maintain planning and regulatory authority over all onshore oil and gas facilities, and in certain instances (such as air quality emission controls) exercise regulatory authority over offshore facilities.

Although future oil and gas leasing is currently prohibited in both State and federal waters, the petroleum industry can still apply for permits to develop new offshore oil and gas facilities within existing leased areas. The time and cost required for the siting, construction, and beginning of drilling operations from an offshore production platform vary widely depending on the size of the facility, its location, the type of oil to be produced, and many other factors. However, the Minerals Management Service estimates that an application for constructing and operating a production platform takes a minimum of two years for approval.

Processing these applications in two years or less is difficult because each reviewing agency has different time lines and legal requirements. However, innovative processes can be developed to help address this problem. For instance, environmental impact statements/reports for offshore projects are now prepared under direction of Joint Review Panels (JRPs) consisting of federal, State, and local agencies that work together to develop the documents. Having each agency involved early in 
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the process to assess and agree upon the environmental impacts of the project increases coordination and helps reduce the time necessary for agency review. This is just one example of methods for helping to facilitate ocean and coastal management decisions.


CONCLUSION

The first step toward understanding the full range of law, jurisdiction, and ownership related to California's ocean ecosystem, and the agencies charged with stewardship and governance of this region, has been provided in this discussion. A complex mix of single-purpose federal, State, and local ocean management statutes, and the agencies charged with implementing these laws, has led to a process that is sometimes duplicative, difficult to understand, and challenging to coordinate. This complexity is increased by the pattern of ownership and regulatory jurisdiction of offshore waters by State, federal, or international entities. With the exception of the provisions in California's Coastal Management Program, previous comprehensive planning, coordination, and research efforts have not proved to be overwhelmingly successful. This analysis points to the need for a more comprehensive planning and management approach to help reduce confusion, delay, or duplication in matters relating to ocean resource management. One step in this process is better understanding California's complex ocean ecosystem. 
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