Underwater Cultural Heritage Policies of the United States Coastal Zone

Domestic management of historic shipwrecks and other Underwater Cultural Heritage (UCH) resources located in the United States coastal zone is extensively fragmented and a portion of it has significant implications in terms of international law. In the United States coastal zone, UCH (largely historic shipwrecks) falls under one of three general regimes, depending on where the resource is located and subject to specific and individual requirements: the General Maritime Law, the Abandoned Shipwreck Act, and the Marine Protection, Research and Sanctuaries Act, also known as the Marine Sanctuaries Act. After examining the development of and current status of these regimes, this article will suggest policies for a stronger, more coordinated federal management regime in United States coastal waters. It will specifically argue that a recent decision by the United States Court of Appeals for the Fourth Circuit provides a well-designed paradigm that could be linked with pertinent aspects of the three identified regimes to create a unified coastal governance mechanism for sunken historic shipwrecks.     

Federal consistency and state expectations

Abstract

The requirement in the Coastal Zone Management Act of 1972 that federal projects be consistent with approved state coastal zone management programs is an important incentive for states to complete their programs. As a condition of program approval, states must first consult with the federal agencies concerned and provide opportunities for comment, with the hope of avoiding conflicts. The consistency requirement is also subject to various exceptions whose scope remains to be determined. One such exception of uncertain extent is the exclusion from the coastal zone of federal lands “the use of which is subject solely to the sole discretion ... of the Federal Government....”; Despite these uncertainties, however, the consistency provision represents a major change in federal policy, which has traditionally allowed federal agencies to operate largely without concern for state land or water use requirements.     

Opportunities for a state‐federal partnership in an expanded territorial sea

Abstract

The United States currently has a 3‐mile territorial sea limit which is under the jurisdiction of coastal states. In the event the United States joins with other countries in adopting a 12‐mile territorial sea, Congress may consider extending state jurisdiction to 12 miles. It may be in the best interest of coastal states to oppose extension and instead support a strengthened federal‐state ocean management regime which disregards boundary lines and is based on the sharing of outer continental shelf leasing revenues along with a guaranteed role for coastal states in federal decision‐making.     

Integrating visual management into the coastal zone planning process: The Massachusetts experience

Abstract

This paper concerns the limitations on integrating visual management into the coastal zone planning process as exemplified by the Commonwealth of Massachusetts, a state with a strong tradition of “home rule”; and a CZM implementation program based on a “networking”; of existing state authorities. The implications of the Massachusetts experience are that: (a) management of esthetic resources at the state level continues to be much less of a priority than management of ecological resources such as wetlands or floodplains; (b) visual management has yet to engender a strongly supportive constituency beyond that concerned with historic preservation; (c) project review focusing on visual impacts may be a more appropriate activity for local rather than state government; and (d) the technical aspects of visual management or impact assessment are far more advanced than their political acceptability. Political realities, together with the decision that implementation of the program should be based on a networking of existing authorities, thus determined the degree to which visual management could be incorporated into the state's program. As a result, the program's principal instruments of visual management became a strengthening of existing programs such as Wild and Scenic Rivers, reliance on wetland protection statutes to indirectly protect natural scenic values, and the use of the federal consistency provisions of the Coastal Zone Management Act to foster focused growth patterns through provision of publicly funded infrastructures. Esthetically oriented project review, with the exception of potential impacts on historic sites, was left to the discretion of local government, and a technical assistance program was created to provide funding or professional skills to communities interested in developing their own esthetic controls or design review processes. Maine, Rhode Island, and other New England states have followed a similar course.     

Management of corals and coral ecosystems in the United States

Abstract

Corals and coral communities provide substantial societal benefits by virtue of their recreational and esthetic appeal, the habitat provided for commercially harvested fish and shellfish, the structural foundation provided for productive coastal ecosystems, and the market value of harvested coral specimens. Coral resources are subject to adverse effects from pollution, dredging, specimen collecting, anchor damage, commercial fishing, overharvesting, and activities related to offshore petroleum development. Management programs which protect coral resources in the United States comprise a patchwork of separate federal and state programs. They attempt to adapt broad regulatory authorities for parks, fisheries, offshore mineral resources, and other subjects for the purpose of coral conservation. These programs embody species‐specific, area‐specific, and generic approaches to coral management. This paper traces the evolution of U.S. coral management programs and comments on their respective strengths and weaknesses. Alternative approaches for strengthening management systems could include new coordinating committees, legislation, memoranda of agreement between involved agencies, and others.     

Response of coastal zone management programs to sea level rise in the United States

Abstract

State coastal zone management programs are responding to the potential impacts of accelerated sea level rise through a wide range of activities and policies. This article provides a brief overview of the Coastal Zone Management Act and other federal laws that provide the basis for coastal state regulatory activities. It surveys the level of response to sea level rise by state coastal management programs in 24 marines coastal states, from formal recognition to implementation of policies addressing the issue. Individual state CZMP responses and policies that have been implemented or proposed are categorized. The adaptation of sea level rise to ongoing institutional objectives is discussed and policy constraints and trends are summarized.     

State ocean policy initiatives in Florida

Abstract

A territorial sea comprising 6.7 million acres of offshore lands extending three geographic miles into the Atlantic Ocean three marine leagues (nine geographic miles) into the Gulf of Mexico makes Florida the second largest “oceanowning”; state in the contiguous United States. Florida's history, climate, economic development, and worldwide reputation have evolved from the state's relationship with the sea. The state is now becoming aware that aggressive management of its ocean resources is necessary to preserve the future of that relationship. The purpose of this article is to present some of Florida's recent legal and policy initiatives that have been directed toward better understanding and management of ocean resources and uses.     

Public access to the shoreline: The Rhode Island example

Abstract

Competition for the use of our nation's shoreline has produced a thorough analysis of means to accommodate the increased demands of the public for access to the shore. The issue of public access in Rhode Island is considered at three levels. First, Rhode Island cases involving common law doctrines, such as the public trust, dedication, and so forth, are examined for their relevance. Second, the effect of the federal government in Rhode Island through the Coastal Zone Management Act and its amendments is studied. Finally, two types of state management programs are considered—a Commission for the Discovery of Rights of Way and the Coastal Resources Management Council.     

Public law litigation and marine affairs: The boldt decision

Abstract

The management and conservation of the marine environment and its natural resources are increasingly understood to be issues of public policy with consequences for society at large. On a variety of dramatic occasions over the last decades, the federal judiciary has departed from its traditionally passive role in the shaping of social policy. This paper examines a critical marine controversy, the Boldt Decision (U.S. v. Washington 1974), to illustrate and evaluate nontraditional judicial behavior. The first two sections introduce Indian‐United States treaties concerning Pacific Northwest salmon resources, and the unfolding of the Boldt Decision. A third section argues that a “public law”; model of litigation fits the legal events of the Boldt Decision. A fourth section addresses the competence of the Boldt court as it is manifest in judicial organization, analysis, and implementation. A final section comments on the potential for public law litigation elsewhere in the governing of marine affairs.     

Conservation and development in Oregon's coastal zone

Abstract

Coastal zone management in Oregon is based on the state's general land‐use law. This body of law is designed to deal with population increase, urbanization, and preservation of agricultural land, as well as with other problems throughout the state. Early planning and policy recommendations for the coast were in the hands of a commission having predominantly local membership. This commission produced an extensive series of studies, policies, and recommendations which were assembled as a proposed management tool for natural resources. Staff of the commission was then absorbed into the state land‐management agency, which developed final goals and guidelines for compliance with the Coastal Zone Management Act. Adoption of the coastal goals in December 1976 has triggered deadlines for local government compliance within the coastal zone. The management program is now undergoing federal review.     

Legal battles on the California coast: A review of the rules

Abstract

Notions of private property have both legal and political importance. In California, as elsewhere in the United States, these ideas are changing. The rate and direction of this evolution is not different on the coast. But the intense heat generated by competing coastal interests does tend to illuminate these issues more clearly on the coast. The full range of these issues has been raised in California, where an historic attempt is now being made to plan and manage the use of coastal resources. In January 1976 the California Legislature will be presented with a coastal plan which promises to inflame the passions of traditional property rights advocates and environmental zealots alike. Much of the rhetoric surrounding this political struggle is already being couched in legal terms. In an effort to delineate a few of the genuine legal issues raised in this planning process, this article summarizes the law of California which is relevant in defining the permitted scope of public regulatory power over private land use.     

Providing Public Access to the Shore: The Role of Coastal Zone Management Programs

In many coastal states and territories, coastal zone management (CZM) programs have been the prime catalyst in leveraging public access initiatives among state and federal agencies, public organizations, and the private sector. A wide range of tools are used, including acquisition, regulations, technical assistance, and public education. The diversity of approaches is illustrated through a variety of case examples. Although hard numbers for measuring outcomes were not uniformly available, between 1985 and 1988, when federal and state CZM funding dedicated to public access was tracked, $141.5 million (unadjusted 1988 dollars) were spent on 455 public access-related projects. A policy shift occurred in the 1990s away from reliance on acquisition and regulation as the most effective means of providing access and toward technical assistance and public outreach-a response to the overall decrease in funds available for access. CZM programs have been able to balance the contradictory goals of the federal Coastal Zone Management Act of 1972 (CZMA), such as protecting coastal resources while providing for increased public access to those resources. It is recommended that CZM programs conduct assessments to determine the kind of access needed in the future and where it should be located. And, due to the creativity and innovation that states and territory coastal programs use to achieve access, it is recommended that a national clearinghouse be established for documenting and sharing information on innovative tools and programs.     

Federal‐state revenue sharing and resource management under outer continental shelf lands act section 8(g)

Abstract

Section 8(g) was added to the Outer Continental Shelf Lands Act (OCSLA) in 1978. It mandated sharing of the revenues from tracts that included oil and gas pools underlying the federal‐state boundary 3 miles offshore. Revenues were to be split based on agreements negotiated by the secretary of Interior and the relevant coastal state governor or “fair and equitable”; divisions made by the federal district courts. Only one agreement was concluded. Texas and Louisiana sued to force distribution of their shares of $6.1 billion in 8(g) funds held in escrow. In 1986 Congress divided the escrowed 8(g) revenues approximately 27 percent to the adjacent states and 73 percent to the federal government and legislated the same split for all future 8(g) revenues. This article examines the complex issues that section 8(g), as amended, raises for the management of federal and state submerged lands. Cooperative federal‐state approaches to implementing amended section 8(g) are reviewed. Section 8(g)'s broader implications as the only federal‐state ocean resource, revenue‐sharing mechanism currently in place also are addressed.     

Model coastal zone statute

Abstract

This model statute sets out a mechanism for the management of the coastal zone by the coastal states. It provides a possible state response to the Coastal Zone Management Act of 1972. The authors recognize that most states presently have some form of management or legal control over their coastal zone, and the model statute has been written with the intention that all or parts of it could be adapted to the wide variety of state regulatory schemes with the aim of providing unitary management to the valuable resource of the coastal zone.     

State vs. national interests in an expanded territorial sea

Abstract

The recently adopted Law of the Sea (LOS) Convention contains a provision allowing coastal nations to adopt 12‐mile territorial seas. Already 104 nations (of a total of 137 coastal nations) have claimed territorial seas of 12 miles or wider. The paper discusses the factors which, in the opinion of the authors, could cause the United States to broaden its territorial sea from the present 3 miles to 12 miles within the next half‐dozen years or so. The state‐federal ocean use and resource management issues that will be raised by such a move are reviewed and options for dealing with the jurisdictional issues are developed. Given the political and economic volatility of these issues and their complexity, the use of a broadly representative and well‐staffed study commission to formulate a course of action is suggested.     

Public involvement in offshore oil development: Lessons from New England

Abstract

Public perceptions of the risks and benefits of offshore oil development off the New England coast are examined. The influence of these perceptions on state policies toward federal actions is analyzed. A distinct trend of issue identification, critical analysis, consensus building, and state or regional action is observed. Throughout this interactive process between the region and the federal government, even though divergent state positions have evolved, there is a growing regional acceptance of coastal zone management concepts.     

The urban coast from a national perspective

Abstract

Viewing the urban coast from the national perspective one sees not only the sheer number and complexity of the federal programs involved but the lack of adequate coordination and the different often cross‐purpose missions. It goes without saying that to date, no one federal agency or program has been specifically charged with overseeing the urban coastal resource as an entity, nor is it likely that one will. However, national concern regarding various aspects of the urban coastal issues has been expressed. A very clear‐cut national interest has been constitutionally declared in navigation, defense, and interstate commercial activities, most of which affect the water area. A more diffuse though no less important national involvement can be traced through a number of federal activities which add up to considerable federal interest and investment in our urban coastal areas. Beginning in the early 1960s with waterfront related urban renewal activity for example the activities have accelerated more recently with such things as the administration's urban initiative, the Urban Recreation Study and the Urban Waterfront Study (HCRS), the Urban Parks and Recreation Recovery Program (HCRS), the Maritime Preservation Program (HCRS and NHT), public investment in harbor cleanup (EPA), shorefront access and planning (OCZM), special waterfront demonstration projects (OCZM), and the State Coastal Zone programs coming in line to mention a few. Building on the existing framework and growing enthusiasm there is an unexcelled opportunity to make incremental progress in creating a new and better urban environment by effectively managing this unique portion of the city—the urban waterfront.     

Risk assessment: An introduction and critique

Abstract

Risk assessment is a methodology which has been used to evaluate the safety of major public projects, notably aerospace programs, liquefied natural gas import facilities, and nuclear power plants.

This article begins with a review of public attitudes toward risk and then describes the basic components of a risk assessment. Subsequent critical analysis suggests the pitfalls inherent in the technique, especially in regard to the establishing of a criterion of safety against which the results of a risk assessment will be compared. The author identifies three such criteria and rejects two of them, including the one most commonly used in federal government agency decision‐making, as unreliable or philosophically unacceptable.

The article concludes with comments on the applicability of risk assessment in coastal zone management.     

Training Needs of Coastal Resources Decision Makers in Ohio's Lake Erie Basin

This article describes results from a study focused on informational and knowledge needs of local coastal resources decision makers in the Ohio Lake Erie basin. New information was obtained through a series of focus groups of local decision makers and key training providers in the basin. The results suggest that training providers and local coastal resources decision makers have differing perceptions of knowledge and information needs and training venues. The results suggest a role for state and federal agency training providers as coordinators and facilitators of an enhanced learning network among decision makers, including support of an information clearinghouse, adoption of appropriate e-based learning modalities, and regionally based learning and practice networks to improve the function of the training market to meet local decision maker needs.     

A user‐resource planning framework for offshore recreational artificial reefs

Abstract

Artificial reefs have been used extensively in coastal waters to attract and enhance recreational fishery resources. In the United States, they have been traditionally built from “materials of opportunity”; using limited budgets. This paper explores some past planning philosophies and presents a recent artificial reef deployment case that demonstrates a lack of sensitivity to local and regional recreational demand. A systems framework is developed to guide future planning efforts in artificial reef development. The framework is intended to integrate previously fragmented knowledge and to demonstrate the interdisciplinary nature of artificial reef planning. Emphasis is given to advance planning, user dimensions, and the integral issue of reef access.