The Silver Anniversary of the United States’ Exclusive Economic Zone: Twenty-Five Years of Ocean Use and Abuse, and the Possibility of a Blue Water Public Trust Doctrine

Sustainably managing marine ecosystems has proved nearly impossible, with few success stories. Ecosystem management failures largely stem from the traditional sector-by-sector, issue-by-issue approach to managing ocean-borne activities—an approach that is fundamentally unable to keep pace with the dynamics of coupled human, ecologi cal and oceanographic systems. In the United States today there are over twenty federal agencies and thirty-five coastal states and territories operating under dozens of statutory authorities shaping coastal and ocean policy. Among marine ecologists and policy experts there is an emerging consensus that a major overhaul in U.S. ocean governance is necessary. This Article suggests that the public trust doctrine—an ancient legal concept that is already incorporated in U.S. state coastal laws—can uniquely provide a unifying concept for U.S. federal ocean governance. Though the public trust concept can be located in the legal systems of many countries, it robustly manifests in the United States, where it has historically protected the public’s rights to fishing, navigation, and commerce in and over navigable waterways and tidal waters. In its most basic form, the doctrine obliges governments to manage common natural resources, the body of the trust, in the best interest of their citizens, the beneficiaries of the trust. Today the public trust doctrin e is integral to the protection of coastal ecosystems and beach access in many states and has even made its way into state constitutions. It would be simple, and seemingly logical, to assume that the same fiduciary responsibility of states to protect public trust uses of their waters extends to all marine resources within the United States’ 200-mile Exclusive Economic Zone (EEZ). However an artificial line has been drawn around state waters, and the legal authority and responsibility of the U.S. government to protect public trust resources in the vast space of its EEZ (the largest of any country on earth) have never been fully and expressly established. Securing the place of the public trust doctrine in U.S. federal oceans management would be valuable, given the immense pressure to exploit EEZ resources, the failure of the current regulatory approach, improved scientific understanding of the interconnected nature of ocean ecosystems, and the growing demand for sustainable management of ocean resources. This Article will outline the development of states’ public trust doctrines; discuss the expansion of U.S. sovereignty over its neighboring ocean waters during the twentieth century; analyze possible avenues for expanding the doctrine to federal waters; and consider how a federal public trust doctrine could clarify some specific emerging issues in U.S. oceans management. At the heart of our analysis lie three questions: (1) does a federal public trust doctrine exist; (2) if so, can we rightfully extend it to include the entirety of the U.S. ocean waters; and (3) could the doctrine provide the missing catalyst for federal agencies to manage the use of U.S. ocean resources in a coordinated, sustainable fashion

A Once and Future Gulf of Mexico Ecosystem: Restoration Recommendations of an Expert Working Group

The Deepwater Horizon (DWH) well blowout released more petroleum hydrocarbons into the marine environment than any previous U.S. oil spill (4.9 million barrels), fouling marine life, damaging deep sea and shoreline habitats and causing closures of economically valuable fisheries in the Gulf of Mexico. A suite of pollutants — liquid and gaseous petroleum compounds plus chemical dispersants — poured into ecosystems that had already been stressed by overfishing, development and global climate change. Beyond the direct effects that were captured in dramatic photographs of oiled birds in the media, it is likely that there are subtle, delayed, indirect and potentially synergistic impacts of these widely dispersed, highly bioavailable and toxic hydrocarbons and chemical dispersants on marine life from pelicans to salt marsh grasses and to deep-sea animals. As tragic as the DWH blowout was, it has stimulated public interest in protecting this economically, socially and environmentally critical region. The 2010 Mabus Report, commissioned by President Barack Obama and written by the secretary of the Navy, provides a blueprint for restoring the Gulf that is bold, visionary and strategic. It is clear that we need not only to repair the damage left behind by the oil but also to go well beyond that to restore the anthropogenically stressed and declining Gulf ecosystems to prosperity-sustaining levels of historic productivity. For this report, we assembled a team of leading scientists with expertise in coastal and marine ecosystems and with experience in their restoration to identify strategies and specific actions that will revitalize and sustain the Gulf coastal economy. Because the DWH spill intervened in ecosystems that are intimately interconnected and already under stress, and will remain stressed from global climate change, we argue that restoration of the Gulf must go beyond the traditional “in-place, in-kind” restoration approach that targets specific damaged habitats or species. A sustainable restoration of the Gulf of Mexico after DWH must: 1. Recognize that ecosystem resilience has been compromised by multiple human interventions predating the DWH spill; 2. Acknowledge that significant future environmental change is inevitable and must be factored into restoration plans and actions for them to be durable; 3. Treat the Gulf as a complex and interconnected network of ecosystems from shoreline to deep sea; and 4. Recognize that human and ecosystem productivity in the Gulf are interdependent, and that human needs from and effects on the Gulf must be integral to restoration planning. With these principles in mind, we provide the scientific basis for a sustainable restoration program along three themes: 1. Assess and repair damage from DWH and other stresses on the Gulf; 2. Protect existing habitats and populations; and 3. Integrate sustainable human use with ecological processes in the Gulf of Mexico. Under these themes, 15 historically informed, adaptive, ecosystem-based restoration actions are presented to recover Gulf resources and rebuild the resilience of its ecosystem. The vision that guides our recommendations fundamentally imbeds the restoration actions within the context of the changing environment so as to achieve resilience of resources, human communities and the economy into the indefinite future

Once and Future Gulf of Mexico Ecosystem: Restoration Recommendations of an Expert Working Group

The Deepwater Horizon (DWH) well blowout released more petroleum hydrocarbons into the marine environment than any previous U.S. oil spill (4.9 million barrels), fouling marine life, damaging deep sea and shoreline habitats and causing closures of economically valuable fisheries in the Gulf of Mexico. A suite of pollutants—liquid and gaseous petroleum compounds plus chemical dispersants—poured into ecosystems that had already been stressed by overfishing, development and global climate change. Beyond the direct effects that were captured in dramatic photographs of oiled birds in the media, it is likely that there are subtle, delayed, indirect and potentially synergistic impacts of these widely dispersed, highly bioavailable and toxic hydrocarbons and chemical dispersants on marine life from pelicans to salt marsh grasses and to deep-sea animals. As tragic as the DWH blowout was, it has stimulated public interest in protecting this economically, socially and environmentally critical region. The 2010 Mabus Report, commissioned by President Barack Obama and written by the secretary of the Navy, provides a blueprint for restoring the Gulf that is bold, visionary and strategic. It is clear that we need not only to repair the damage left behind by the oil but also to go well beyond that to restore the anthropogenically stressed and declining Gulf ecosystems to prosperity-sustaining levels of historic productivity. For this report, we assembled a team of leading scientists with expertise in coastal and marine ecosystems and with experience in their restoration to identify strategies and specific actions that will revitalize and sustain the Gulf coastal economy. Because the DWH spill intervened in ecosystems that are intimately interconnected and already under stress, and will remain stressed from global climate change, we argue that restoration of the Gulf must go beyond the traditional "in-place, in-kind" restoration approach that targets specific damaged habitats or species. A sustainable restoration of the Gulf of Mexico after DWH must: 1. Recognize that ecosystem resilience has been compromised by multiple human interventions predating the DWH spill; 2. Acknowledge that significant future environmental change is inevitable and must be factored into restoration plans and actions for them to be durable; 3. Treat the Gulf as a complex and interconnected network of ecosystems from shoreline to deep sea; and 4. Recognize that human and ecosystem productivity in the Gulf are interdependent, and that human needs from and effects on the Gulf must be integral to restoration planning. With these principles in mind, the authors provide the scientific basis for a sustainable restoration program along three themes: 1. Assess and repair damage from DWH and other stresses on the Gulf; 2. Protect existing habitats and populations; and 3. Integrate sustainable human use with ecological processes in the Gulf of Mexico. Under these themes, 15 historically informed, adaptive, ecosystem-based restoration actions are presented to recover Gulf resources and rebuild the resilience of its ecosystem. The vision that guides our recommendations fundamentally imbeds the restoration actions within the context of the changing environment so as to achieve resilience of resources, human communities and the economy into the indefinite future

Challenges and Alternatives

Challenges and Alternatives (moderated by Steve Roady): *Donna Christie - Implementing an Ecosystem-Approach to Ocean Management: Assessment of Current Models *Andrew Rosenberg - Regional Implementation of Ecosystem-based Management *Josh Eagle - Regional Ocean Councils and the Perils of Multiple-Use Management

The Silver Anniversary of the United States’ Exclusive Economic Zone: Twenty-Five Years of Ocean Use and Abuse, and the Possibility of a Blue Water Public Trust Doctrine

Sustainably managing marine ecosystems has proved nearly impossible, with few success stories. Ecosystem management failures largely stem from the traditional sector-by-sector, issue-by-issue approach to managing ocean-borne activities—an approach that is fundamentally unable to keep pace with the dynamics of coupled human, ecologi cal and oceanographic systems. In the United States today there are over twenty federal agencies and thirty-five coastal states and territories operating under dozens of statutory authorities shaping coastal and ocean policy. Among marine ecologists and policy experts there is an emerging consensus that a major overhaul in U.S. ocean governance is necessary. This Article suggests that the public trust doctrine—an ancient legal concept that is already incorporated in U.S. state coastal laws—can uniquely provide a unifying concept for U.S. federal ocean governance. Though the public trust concept can be located in the legal systems of many countries, it robustly manifests in the United States, where it has historically protected the public’s rights to fishing, navigation, and commerce in and over navigable waterways and tidal waters. In its most basic form, the doctrine obliges governments to manage common natural resources, the body of the trust, in the best interest of their citizens, the beneficiaries of the trust. Today the public trust doctrin e is integral to the protection of coastal ecosystems and beach access in many states and has even made its way into state constitutions. It would be simple, and seemingly logical, to assume that the same fiduciary responsibility of states to protect public trust uses of their waters extends to all marine resources within the United States’ 200-mile Exclusive Economic Zone (EEZ). However an artificial line has been drawn around state waters, and the legal authority and responsibility of the U.S. government to protect public trust resources in the vast space of its EEZ (the largest of any country on earth) have never been fully and expressly established. Securing the place of the public trust doctrine in U.S. federal oceans management would be valuable, given the immense pressure to exploit EEZ resources, the failure of the current regulatory approach, improved scientific understanding of the interconnected nature of ocean ecosystems, and the growing demand for sustainable management of ocean resources. This Article will outline the development of states’ public trust doctrines; discuss the expansion of U.S. sovereignty over its neighboring ocean waters during the twentieth century; analyze possible avenues for expanding the doctrine to federal waters; and consider how a federal public trust doctrine could clarify some specific emerging issues in U.S. oceans management. At the heart of our analysis lie three questions: (1) does a federal public trust doctrine exist; (2) if so, can we rightfully extend it to include the entirety of the U.S. ocean waters; and (3) could the doctrine provide the missing catalyst for federal agencies to manage the use of U.S. ocean resources in a coordinated, sustainable fashion

Safe Harbors: The Many Benefits of Marine Monuments and Sanctuaries

The United States has been at the forefront of marine resource stewardship since the 1970s when Federal officials began to implement a series of national policies aimed at the conservation and management of public trust resources in the ocean. Beginning with the establishment of the National Oceanic and Atmospheric Administration in 1970, soon followed by several pieces of landmark legislation, this era marked the start of a continuing effort to integrate ecosystem science with marine resource management. Among the most important bipartisan legacies of this effort has been the steady expansion of marine managed areas in U.S. coastal and ocean waters. This legacy is being challenged as the Trump Administration considers whether to alter or eliminate the nation's Marine National Monuments and National Marine Sanctuaries

Final Roundtable

Final Roundtable. Moderated by Tim Profeta Featuring: Laura Cantral, Susan Hanna, Kristen Fletcher, Marc Hershman, Amber Mace, David Keeley, Donna Christie, Andrew Rosenberg, Josh Eagle, Steve Roady, Larry Crowder, and Mike Orbach