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Legal Aspects of Ecosystem-based Management (EBM): Implementation in Oregon Coastal Management Alexandra Hoffman, University of Oregon, USA Richard Hildreth, University of Oregon, USA Abstract: The framework chosen for this practical application was the ecosystem-based management approach. Taking Andrew Rosenburg’s three elements for ecosystem-based management, I analyzed various federal and Oregon State laws to determine if any of these laws had any of Rosenburg’s elements and, therefore, could implement ecosystem-based management. I analyzed eight federal statutes and eight Oregon state statutes all relating to ocean and coastal law. After analyzing each statute, I determined that each statute has an element of ecosystem-based management and that none of the statutes fully implement ecosystem-based management. The strength of ecosystem-based management is that, if fully implemented, the approach has the potential to protect large marine ecosystems. Its weakness is that creating the perfect statute that includes all elements is nearly impossible due to differing politics, opinions, and perspectives. The next steps in this research are analyzing certain types of current projects, including ocean acidification and liquid naturalized gas, happening along the Oregon coast and determining if and how ecosystem-based management can be implemented. Keywords: Policy, Sustainability, Sea, Ecosystem-based Management Introduction E cosystem-based management (EBM) is an environmental management strategy that recognizes and considers the full array of interactions within an ecosystem, including human activities and development. Stressors on coastal ecosystems don’t adhere to political boundaries, resulting in laws that fail to protect the whole ecosystem. This article will address the challenges of successfully implementing EBM into statutes and will propose policy suggestions for better implementing EBM into current federal and Oregon state laws. The Oregon Coast is an ecosystem home to grey whales, salmon, puffins, and many tidal creatures that is facing threats including ocean acidification, overfishing, erosion, pollution, and adverse development impacts. Increasing human uses of the ocean and coasts have led to steep declines in fish and wildlife populations like the Sea Otter and habitat loss that threatens the long-term sustainability of biological resources.1 Ecological economics examines the relationship between ecosystems and the neighboring economy.2 The goal in ecological economics is to find the proper balance between protecting marine ecosystems and growing coastal economies. Retirement income makes up forty-six percent of the income along the coastal counties.3 This is significant because it reflects that fact that high environmental quality draws in retirement communities who value the scenery of the coast. Natural resource-based jobs such as commercial fishing and timber also benefit from protection of habitat through recovery of depleting fisheries and forests. Oregon’s beautiful coastline, public beaches, relatively high air and water quality, bird and mammal watching, and recreational fishing opportunities are a big draw to retirees and future business owners as well.4 1 Noah Greenwald and Amanda Garty, “Species of Concern of the Tillamook Rainforest and North Coast, Oregon,” last modified 2007, www.biologicaldiversity.org/publications/papers/TillamookReport.pdf. Ibid., 34. 3 Ibid., 27. 4 Ibid., 6. 2 The International Journal of Environmental Sustainability Volume #, Issue #, 2016, www.onsustainability.com © Common Ground Publishing, Alexandra Hoffman and Richard Hildreth, All Rights Reserved, Permissions: [email protected] ISSN: 2325-1077 (Print), ISSN: 2325-1085 (Online) THE INTERNATIONAL JOURNAL OF ENVIRONMENTAL SUSTAINABILITY The transition to EBM and the recovery of coastal fish stocks has proven to benefit the retirement community in addition to the commercial and recreational anglers.5 To address the problem of marine ecosystem deterioration the science and legal communities call for EBM. The goal is that through EBM not only would an individual species be preserved but also the habitat and ecosystem as whole. Putting such an approach into place, however, is a challenge because the Oregon Coast is governed by many overlapping, and sometimes conflicting, jurisdictions with their own objectives and goals. The laws governing the Oregon Coast are fragmented and have little connection to each other. However, Oregon has taken recent steps to create a cohesive management plan through the Oregon Coastal Management Plan and the State Planning Goals. By continuing this trend and building on these legal documents, Oregon is on the path to improved implementation of EBM in their laws. EBM is an environmental management strategy that recognizes and considers the full array of interactions within an ecosystem, including human activities and development.6 An environmental management plan that implements EBM requires consideration of a wide array of factors, including predicting cumulative impacts on the whole ecosystem, studying the interactions between sectors of the local economy, embracing and planning for change and unpredictability, crafting a strategy that meets multiple objectives with diverse sets of benefits, building bridges between science and policy through communication, and using education to support productive public participation. Successfully implementing EBM is a complex goal. Oregon’s ocean is governed by three jurisdictions, state, federal, and international.7 Within the state’s jurisdiction, Oregon has broken up different sections of its coast and ocean to be regulated by different statutes and different agencies.8 Due to the multiple jurisdictions governing the Oregon coast, the many laws affecting Oregon’s coastal resources are comprised of a fragmented jurisdictional framework that requires an understanding (coordination and collaboration) among local, state, federal, and international law. Legal scholarship tends to focus on individual laws that influence portions of the ecosystem but fails to explore the interplay between jurisdictions and substantive areas. This lack of cohesiveness creates an opportunity for legal scholars to provide a coordinated legal framework for EBM in Oregon. In the United States’ thirty-five coastal states, coastal management requires a collaborative arrangement between state and federal agencies. In 2009, Oregon created Redfish Rocks Marine Reserve and Protected Area (RRMRMPA) under its new marine reserves program.9 RRMRMPA was to incorporate the local community into the process of preserving and protecting certain fisheries.10 Under HB 3013, the Oregon Legislature mandated the creation of the Redfish Rocks Community Team (RRCT) to work with the Oregon Department of Fish and Wildlife to develop the Redfish Rocks Site Management Plan.11 The RRCT is made up of members from the City of Port Orford, commercial anglers, recreation anglers, members of the Port of Port Orford, local business owners, conservationists, recreationists, watershed council members, and marine scientists.12 The goals of the RRMRMPA were to protect local stocks, including chine, copper, and quillback rockfish, by protecting 5 Ibid. Norman L. Christensen et al., “The Report of the Ecological Society of America Committee on the Scientific Basis for Ecosystem Management,” Ecological Applications 6 (1996): 665, doi:10.2307/ahr.226.9.460; Karen L. Mcleod, et al., “Scientific Consensus Statement on Marine Ecosystem-based Management,” last modified 2005, www.compassonline.org/sites/all/files/document_files/EBM_Consensus_Statement_v12.pdf. 7 Oregon Territorial Sea Plan, “Part One: Ocean Management Framework,” last modified 1994, www.oregon.gov/LCD/OCMP/docs/ocean/otsp_1-c.pdf. 8 Ibid. 9 Redfish Rocks Community Team, “Redfish Rocks—The Community Team, Marine Reserve and MPA,” accessed February 23, 2015, www.redfishrocks.org. 10 Ocean Resource Team, “Redfish Rocks Marine Reserve and Marine Protected Area,” last modified 2005, www.oceanresourceteam.org/initiatives/successes/marine-reserve/. 11 “Redfish Rocks—The Community Team.” 12 Ibid. 6 HOFFMAN AND HILDRETH: LEGAL ASPECTS OF ECOSYSTEM-BASED MANAGEMENT critical habitats, provide local research opportunities and fleet engagement in that research, and allow for continued education about and involvement of the local community in Port Orford’s local resources.13 In selecting the location of the marine reserve and protected area, the Ocean Resource Team had four meetings analyzing potential sites alongside habitat data and economic data. When the meetings ended, a site was chosen based on data that would maximize ecological benefits while minimizing economic impacts.14 The Redfish Rock Marine Reserve (RRMR) consists of 2.6 square miles of water around Redfish Rocks, from the Extreme Low Tide Line (ELTL) to about 20 fathoms.15 The team decided to use the ELTL instead of the Extreme High Tide Line (EHTL) as the boundary to allow clam digging.16 The Marine Protected Area (MPA) extends from the western boundary of the marine reserve to the three-mile territorial sea boundary.17 By closing the area to any net, jig, or longline gear, but allowing for the salmon and crab fisheries that use pelagic troll and pots to continue, increased protection for rockfish and other nearshore species with larger home ranges was provided while maintaining historic economic uses.18 RRMRMPA implemented EBM. As is explained in more detailed below, EBM protects a single species like the chine, copper, and quillback rockfish by protecting the ecosystem where the species of fish live. In order to protect the whole ecosystem, the RRCT works alongside the ODFW integrating inter-agency communication and communication among different economic industries. The final site was based on the opinions of scientists, anglers, and local business owners. Thus, EBM consists of all interests working together to protect ocean and coastal ecosystems. The following is an analysis of EBM as it is currently implemented in federal and Oregon law. By assembling the basic elements of an EBM legal regime, authorities could effectively begin to implement EBM, allowing a more holistic management of an ecosystem. This report discusses key principles of EBM, and identifies legal mechanisms available within current laws for implementing EBM. Finally, the report will determine the future of EBM for Federal and Oregon state legal authorities. The Principles of Ecosystem-based Management Identifying the principles and key elements of EBM necessary for implementing EBM under current laws, the statement prepared by scientists and policy experts from the United Nations Convention of the Law and the Sea that provides information about coasts and oceans to United States policy makers sets forth a working definition of EBM: “An integrated approach to management that considers the entire ecosystem, including humans. The goal of ecosystem-based management is to maintain an ecosystem in a healthy, productive and resilient condition so that it can provide the services humans want and need. Ecosystem-based management differs from current approaches that usually focus on a single species, sector, activity, or concern; it considers the cumulative impacts of different sectors.”19 According to Andrew Rosenburg, there are three important elements of EBM. The first element is to “conserve ecosystem services, which are those processes and products provided by a fully functioning ecosystem that supports human well-being.”20 The second element is that EBM must be “cross-sectoral, meaning that management plans are comprehensive, with the goal 13 “Redfish Rocks Marine Reserve.” Ibid. 15 Ibid. 16 Ibid. 17 Ibid. 18 Ibid. 19 “Scientific Consensus Statement on Marine Ecosystem-based Management.” 20 Andrew A. Rosenberg, “Regional Governance and Ecosystem-based Management of Ocean and Coastal Resources: Can We Get There from Here?” Duke Environmental Law and Policy Forum 16 (2006): 179–185. 14 THE INTERNATIONAL JOURNAL OF ENVIRONMENTAL SUSTAINABILITY of conserving ecosystem services, and inclusive of all types of human activity that may impact coastal and ocean resources.”21 Finally, the third element is that EBM “specifically address[es] the cumulative impact of human activities on the ecosystem and, hence, ecosystem services.”22 To ensure these elements are met, EBM statutes must specifically require the protection of ecosystem structure, focus on the range of activities within an ecosystem, account for the interconnectedness between target species and non-target species within an ecosystem, and integrate ecological, social, economic, and institutional perspectives.23 While management systems exist to address many coastal threats independently, the unanswered question is whether it is possible to proactively plan around and respond to several or all threats. Between the competing goals of coastal economy, science, and legal jurisdictions, the answer seems daunting. The growing recognition of the interrelated nature of these and other problems confronting the marine environment has led not only to the nearly unified call for an EBM regime, but also to the emergence of generally recognized principles that should serve as the foundation for such a program. The importance of adopting a regional approach for carrying out EBM is the increasingly strong effort to establish a “zoning” approach to coastal and ocean management.24 Under a zone approach, marine management programs, networks of reserves, and other marine-protected areas composed of sufficient size and connectivity would be established; depending on conditions and levels of protection, various commercial, recreational, subsistence, and other human activities would be allowed to continue. This “zoning” approach would allow stakeholders to work together to reach common goals while protecting the relevant ecosystem. In conclusion, successful implementation of marine spatial planning will require “a broad range of interests . . . to decide—each for their own reasons—that having the opportunity to use and exert substantial control over a portion of the sea is better than fighting incessantly for all of it while its resources continue to disappear.”25 Existing Laws Involving the Oregon Coast Current Federal Laws The United States does not have a comprehensive statute establishing EBM in the marine environment. However, some existing statutes, when viewed individually, contain components of an EBM approach. First, this article will analyze each statute to highlight the EBM components. When administration of the different statutes is coordinated, an EBM approach to coastal management becomes feasible. Coastal Zone Management Act (CZMA) The CZMA26 provides a framework for coastal states to work with the federal government to manage development and resource use in coastal areas.27 According to Fletcher, “while ecosystem-based management is not specifically required in the CZMA statutory language or 21 Ibid., 181. Ibid. 23 Patrick A. Parenteau et al., “Legal Authorities for Ecosystem-based Management in US Coastal and Ocean Areas,” in Ocean and Coastal Law and Policy, ed. by Donald C. Baur, Tim Eichenberg, and Michael Sutton (Chicago: American Bar Association, 2015), 703–67. 24 Elliot A. Norse, “A Zoning Approach to Managing Marine Ecosystems,” accessed April 24, 2015, mcbi.marine -conservation.org/publications/pub_pdfs/Norse_zoning_2003.pdf. 25 Elliot A. Norse, “Ending the Range Wars on the Last Frontier: Zoning the Sea,” in Marine Conservation Biology: The Science of Maintaining the Sea’s Biodiversity, ed. Elliot A. Norse and Larry B. Crowder (Washington DC: Island Press, 2005), 422, 435. 26 Coastal Zone Management Act, 16 U.S.C. §§ 1451–56 (2012) 27 Ibid. 22 HOFFMAN AND HILDRETH: LEGAL ASPECTS OF ECOSYSTEM-BASED MANAGEMENT regulations, states have the opportunity in the coastal program development and approval process to incorporate elements of ecosystem-based management.”28 Therefore, the CZMA represents an existing powerful but also customizable tool whereby coastal states such as Oregon may develop and implement innovative and effective EBM strategies. State-level coastal programs implement their own individual CZMA with state and federal funds, with states preparing a coastal zone management plan (CMP). Under Section 307 of CZMA, federal agency activities that have reasonably foreseeable effects on any land or water use or natural resources of the coastal zone are required to be consistent to the maximum extent possible with the enforceable policies of a federally approved CMP.29 Neither the CZMA nor the binding regulations issued under it specifically require EBM, but through state CMPs and federal consistency process, EBM can be implemented.30 A coastal state’s CMP consists of all of its enforceable laws and regulations within its coastal zone. This means that many locally regulated activities including zoning and land use are highly relevant to coastal impacts and to coordinating and strengthening holistic EBM efforts. Clean Water Act (CWA) The objective of the CWA31 is “to restore and maintain the chemical, physical, and biological integrity of the Nation’s waters.”32 Jurisdiction of the CWA extends to “navigable waters,” which are “waters of the United States including the territorial seas.”33 Section 402 and 403 authorizes the Environmental Protection Agency (EPA) to regulate the discharge of pollutants into navigable waters including the ocean and adopt guidelines to assess the effects of “changes in marine ecosystems, diversity, productivity, and stability.”34 Section 404, which regulates the discharge of dredge or fill material, can also be used to prohibit the use of estuaries and wetlands as disposal sites, protecting ecosystems from dredge and fill activities.35 Lastly, the CWA’s Total Maximum Daily Load (TMDL) program in Section 303(d) is another tool that can support EBM in coastal waters.36 A TMDL is the sum of the allowable load of a single pollutant from all contributing point and nonpoint sources whose goal is to ensure water quality standards are met.37 Protecting ecosystems downstream at the mouth of the river may require regulating upstream sources of pollution under TMDLs. Marine Mammal Protection Act (MMPA) The primary goal of the MMPA38 is “to maintain the health and stability of the marine ecosystem.”39 However, the MMPA provides limited tools to follow through on its goal to maintain the marine environment. Like the Endanagered Species Act, the MMPA includes a “take” provision. Generally, “take” provisions prohibit humans from taking (either by killing, injuring, or moving the animal away from its habitat) an animal listed in the statute unless the person has a permit. The “take” provision within MMPA only relates to marine mammals and not habitat modification.40 While the MMPA recognizes the importance of marine ecosystem 28 Fletcher, “Regional Ocean Governance.” Ibid., §§ 1456(c). 30 Parenteau, “Legal Authorities,” 725. 31 Clean Water Act, 33 U.S.C. § 1251 (2012). 32 Ibid., § 1251(a). 33 Ibid., § 1602(7). 34 Ibid., § 1343(a). 35 Ibid., § 1344. 36 Ibid., § 1313(d). 37 Parenteau, “Legal Authorities,” 728. 38 Marine Mammal Protection Act, 16 U.S.C. § 1361 (2000). 39 Ibid., § 1361(a). 40 Parenteau, “Legal Authorities,” 713. 29 THE INTERNATIONAL JOURNAL OF ENVIRONMENTAL SUSTAINABILITY protection, the statute does little to support comprehensive management action on an ecosystem basis. In 1994, however, Congress amended the MMPA to require the use of an EBM approach for scientific research in the Bering Sea.41 This is the first time that Congress acknowledged the need for EBM within a statute rather than focusing on single species population goals in the marine environment.42 Congress added Section 112 in 1994, authorizing the Secretary of the Interior to “prescribe such regulations as are necessary and appropriate to carry out the purposes of” the MMPA.43 Section 112 gave the Secretary the power to protect marine mammals and their habitats through recovery plans. To ensure EBM is executed under a statute, such protection of marine habitat within MMPA is a key component. Section 112 provides legal authority to promulgate regulations to protect marine mammal through EBM. Endangered Species Act (ESA) The purpose of the ESA44 is “to provide a means whereby the ecosystems upon which endangered . . . and threatened species depend may be conserved,” focusing on preservation of individual species, subspecies, and “distinct population segments.”45 EBM statutes should ensure that marine ecosystems are sustained over time and that native populations within the ecosystem are preserved. EBM plans must take into account structure, function, processes of ecosystems, and composition of species within the ecosystem. The ESA has the structure for implementing these components. Section 7(a)(2) prohibits federal agencies from taking actions that could result in the destruction or adverse modification of designated critical habitat.46 ESA acknowledges that habitat protection is crucial for the recovery of a species. When a violation is found, an automatic injunction is applied. Section 9 prohibits the “taking” of any endangered animal unless the Fish and Wildlife Service and National Marine and Fish Service issues a permit under Section 10(a) for an incidental take. To obtain a take permit, the applicant must submit a habitat conservation plan (HCP).47 HCPs apply on an ecosystem-based scale and can be a major part of EBM. The goals of HCPs are to meet public needs, avoid jeopardy, and assist in recovery of species. HCPs include non-listed species and multiple ecosystems in a region. While HCPs are not generally used in the ocean environment because they are limited to nonfederal lands, HCPs can be used in state fisheries and coastal zone programs because these areas are under state law. In addition, Section 9 prohibits activities that “actually kill or injure” threatened and endangered species through habitat modification that “significantly impairs essential behavioral patterns such as breeding, feeding, and sheltering.”48 This prohibition extends to activities within the ocean. The connection between habitat loss and harm to the species furthers the purpose of ESA while also ensuring EBM in a legal framework. Thus, critical habitat designation can be applied throughout the ecosystem area of a listed species and implemented in zones based on the presence of activities that potentially harm the listed species. 41 Ibid. Ibid. 43 Marine Mammal Protection Act Amendments of 1994, Pub. L. No. 103–238, § 7, 108 Stat. 532, 541 (Codified as Amended at 16 U.S.C. § 1382(a)) (1994). 44 Endangered Species Act, 16 U.S.C. § 1531–1539 (2000). 45 Ibid., § 1531(b). 46 Ibid. 47 Ibid., § 1539(a)(2). 48 Ibid., § 1538(a). 42 HOFFMAN AND HILDRETH: LEGAL ASPECTS OF ECOSYSTEM-BASED MANAGEMENT Magnuson-Stevens Fishery Conservation and Management Act (FCMA) The FCMA49 is the main legal authority for managing fisheries within the EEZ. Originally, FCMA focused only on single species in a fishery, but in 1996, Congress reauthorized FCMA with the Sustainable Fisheries Act (SFA), which required that regional councils set harvest rates at or below maximum sustainable yields, determine the effects of fishing on the environment, and identify essential fish habitats and take measures to protect them.50 In addition, SFA required the councils to develop a Fisheries Ecosystem Plan (FEP), which is a document “containing information on the structure and function of the ecosystem in which fishing activities occur, so that managers can be aware of the effects their decisions have on the ecosystem, and the effects other components of the ecosystem may have on the fisheries.”51 Councils can implement EBM through FEPs by creating a fishery management plan (FMP) for a whole ecosystem.52 A number of councils are shifting toward this trend to integrate ecosystem considerations in fishery management using FEPs. Outer Continental Shelf Lands Act (OCSLA) In 1978, Congress amended the OCSLA53 to include considerations of marine environments and impacts from development.54 Section 18 provides the Secretary of the Interior authority to develop, approve, and review leases considering “economic, social, and environmental values of the renewable and nonrenewable resources.”55 When considering the potential effects of leasing, environmental information must be available and measures must be taken to mitigate adverse impacts on human, marine, and coastal environments.56 Within this leasing program, there is ample flexibility to abide by any spatial planning or zones established to implement EBM and cancel or suspend activity that threatens serious harm to the marine environment. OCSLA gives ample authority to implement EBM for any marine-related activities. Marine Sanctuaries Act (MSA) Marine-protected areas are the most obvious implementation of EBM because they protect an ecosystem and not a particular species. Marine-protected areas range from national parks, refuges, national monuments, fishery zones, and state marine-protected areas.57 Marine-protected areas are specific areas established for conservation within specific legal controls.58 Otherwise, areas are regulated by different agencies with different management goals creating isolated areas of resource protection. Therefore, the challenge to incorporate EBM is to link the different areas together to form a coordinated system and ensure that the areas are managed cohesively. Under the National Marine Sanctuaries Act, 59 NOAA has the authority, with presidential approval, to designate national marine sanctuaries.60 Large sanctuaries help reflect and advance EBM because it allows for protection of more species and more environments. 49 Fishery Conservation and Management Act, 16 U.S.C. §§ 1801 (1976). Ibid., §§ 1802, 1853. 51 Marian Macpherson, “Integrating Ecosystem Management Approaches into Federal Fishery Management through the Magnuson-Stevens Fishery Conservation and Management Act,” Ocean and Coastal Law Journal 6 (2001): 1–32. 52 Parenteau, “Legal Authorities,” 720. 53 Outer Continental Shelf Lands Act, 43 U.S.C. §§ 13 (2012). 54 Ibid. 55 Ibid., §§ 1344(a). 56 Parenteau, “Legal Authorities,” 723. 57 Parenteau, “Legal Authorities,” 731–32. 58 Ibid. 59 National Marine Sanctuaries Act, 16 U.S.C. §§ 1431–1445 (2012). 60 Ibid., §§ 1433–1434. 50 THE INTERNATIONAL JOURNAL OF ENVIRONMENTAL SUSTAINABILITY National Environmental Policy Act (NEPA) One of the purposes of NEPA61 is “to enrich the understanding of the ecological systems and natural resources important to the Nation.”62 Section 102 requires environment assessments and environment impact statements to be made to warrant consideration of environmental, economic, and social factors when implementing a federal action.63 Section 102 allows EBM to be integrated in the decision-making process when designing and planning federal actions. All major federal actions must comply with NEPA in analyzing the project and alternatives to decrease significant environmental impacts. Though the agency does not have to choose the least impactful alternative, the agency must report the alternatives considered and the reason for its decision in an environmental impact statement or environmental assessment. Proponents of projects likely to generate significant impacts must submit an environmental impact statement; otherwise, an environmental assessment or a FONSI should be prepared. For example, according to NAO 216-6 § 6.02, for fishery management: The action is considered significant if one or more of the following elements apply: 1. The proposed action may be reasonably expected to jeopardize the sustainability of any target species that may be affected by the action. 2. The proposed action may be reasonably expected to jeopardize the sustainability of any non-target species. 3. The proposed action may be reasonably expected to cause substantial damage to the ocean and coastal habitats and/or essential fish habitat as defined under the MSA and identified in FMPs. 4. The proposed action may be reasonably expected to have a substantial adverse impact on public health or safety. 5. The proposed action may be reasonably expected to adversely affect endangered or threatened species, marine mammals, or critical habitat of these species. 6. The proposed action may be reasonably expected to result in cumulative adverse effects that could have a substantial effect on the target species or nontarget species. 7. The proposed action may be expected to have a substantial impact on biodiversity and ecosystem function within the affected area (e.g., benthic productivity, predator-prey relationships, etc.). 8. The proposed action may have significant impacts on the quality of the human environment are likely to be highly controversial.64 Experience with NEPA also has revealed the wisdom of the adaptive management approach to coping with the dynamic and often unpredictable nature of complex ecosystems. Providing for flexibility in project implementation is valuable to EBM because of the need to take into account a wide variety of activities and resources throughout a span of time. For example, building a new transmission line can affect the local residents’ property rights and livelihoods such as ranching and agriculture, affect the local endangered species habitats, and affect local historical sites. Having an adaptive management part of an environmental impact statement allows all three types of activities to be managed effectively and efficiently. 61 National Environmental Policy Act, 42 U.S.C. § 4331 (2012). Ibid., § 4321. Ibid., § 4332(A) 64 NOAA (National Oceanic and Atmospheric Administration), “The National Oceanic and Atmospheric Administration National Environmental Policy Act Handbook,” last modified 2009, www.nepa.noaa.gov/NEPA_HANDBOOK.pdf. 62 63 HOFFMAN AND HILDRETH: LEGAL ASPECTS OF ECOSYSTEM-BASED MANAGEMENT Current Oregon State Laws The State of Oregon does not have a comprehensive statute establishing EBM in the marine environment, but when administration of different statutes is coordinated into one cohesive legal framework, an EBM approach to coastal management becomes feasible. Oregon Ocean Resources Management Act (OORMA) OORMA65 created both the Oregon Ocean Resources Management Plan and the Oregon Territorial Sea Plan.66 Both of these plans cover a wide variety of existing and potential ocean resource management issues off the Oregon coast in both state and federal waters. Oregon’s definition of coastal zone management is quite broad, extending to the crest of the Coast Range in most cases.67 In particular, management of riparian zones well away from the coast itself will have broad impacts on water quality and ecosystem health in the bays and estuaries so important for life on the coast. Thus coastal management applies to very large areas of the state. These plans exemplify EBM implementation in Oregon. Multiple state agencies work together to create and ensure that the policy goals of these plans are being followed. The Ocean Policy Advisory Council (OPAC) was created to give coordinated policy advice.68 As demonstrated below, OPAC can support implementation of EBM in both the Oregon Ocean Resources Management Plan and the Territorial Sea Plan. Statewide Land Use Planning Act Oregon’s statewide land use planning program created the Land Conservation and Development Commission (LCDC) and enacted goals as mandatory standards categorized by areas such as “recreational and outstanding scenic areas; beaches, dunes, coastal headlands and related areas; and unique wildlife habitat.”69 The Statewide Land Use Planning Act70 requires state agencies to “carry out their planning duties, powers, and responsibilities and take actions . . . with respect to programs affecting land use in compliance with (statewide planning) goals” and implement a program “to assure compliance with the goals.”71 LCDC approves county and city plans to ensure the plans comply with the goals. As discussed in more detail below, the Oregon statewide planning goals are similar to the Oregon Ocean Resources Management Plan and Oregon Territorial Sea Plan in that they support consistent resource management throughout the state of Oregon. The goals constitute a framework for a statewide program of land use planning, including policies on land use, resource management, economic development, and citizen involvement.72 Goals 17, 18, and 19 relate to coastal shore lands, beaches and dunes, and ocean resources. Goal 17 relates to coastal shore lands and aims to “conserve, protect, where appropriate, develop and where appropriate restore the resources and benefits of all coastal shorelands,”73 while recognizing the diverse contributions that shorelands make like protecting and maintaining water quality, providing fish and wildlife habitat, siting water-dependent uses for economic development, providing recreational opportunities, and preserving the aesthetic or scenic 65 Ocean Resources Management Act of 1987, OR. REV. STAT. § 196.405–.515 (2012). Ibid., § 196. 425. 67 Ibid. 68 Ibid. 69 Ibid., § 197.075, .230. 70 Statewide Land Use Planning Act of 1973, OR. REV. STAT. § 197.005 (2012). 71 Ibid., § 197.180(1). 72 Land Conservation and Dev. Comm’n, Oregon’s Statewide Planning Goals 1 (1990). 73 Ibid., 18. 66 THE INTERNATIONAL JOURNAL OF ENVIRONMENTAL SUSTAINABILITY qualities that define the coastal environment.74 Goal 17 requires that “management of these shoreland areas shall be compatible with the characteristics of the adjacent coastal waters” and strive to “reduce the hazard to human life and property” as well as reduce harmful effects on the shorelands caused by human development.75 Agencies are required to gather data on “the nature, location, and extent of geologic and hydrologic hazards and shoreland values, including fish and wildlife habitat, water-dependent uses, economic resources, recreational uses and aesthetics” to determine proper land and water use management. 76 Goal 17 defines coastal shorelands as any land within a hundred feet of the ocean shore in addition to lands surrounding estuaries and coastal streams.77 Goal 18 focuses on beaches and dunes and aims “to conserve, protect, and where appropriate develop, and where appropriate restore the resources and benefits of coastal beaches and dune areas; and to reduce the hazard to human life and property from natural or man-induced actions associated with these areas.”78 Goal 19 relates to ocean resources and establishes that Oregon’s top priorities are long-term conservation of ocean resources by managing renewable resources. The goal requires that “all actions by local, state, and federal agencies that are likely to affect the ocean resources and uses of Oregon’s territorial sea shall be developed and conducted to conserve marine resources and ecological functions for the purpose of providing long-term ecological, economic, and social values and benefits and to give higher priority to the protection of renewable marine resources— i.e., living marine organisms—than to the development of non-renewable ocean resources, policy elements.”79 Similar to Goal 17, agency decisions must be made based on exhaustive information: “Prior to taking an action that is likely to affect ocean resources or uses of Oregon’s territorial sea; state and federal agencies shall assess the reasonably foreseeable adverse effects of the action as required in the Oregon Territorial Sea Plan.”80 Commercial Fishing and Developmental Fisheries Acts Combined, the Commercial Fishing and Developmental Fisheries Acts81 give the Oregon Fish and Wildlife Commission “exclusive jurisdiction over all fish, shellfish, and all other animals living intertidally on the bottom, within the waters of this state.”82 The commission can regulate commercial harvest of food fish and create a food-fish management policy.83 In addition, they institute a management program to commercialize underutilized food-fish species while protecting long-term sustainability of these fisheries. EBM is implemented by acknowledging that multiple species within the marine environment interact with each other. By not focusing on a single species of fish, these statutes support an EBM approach to management of multiple species within the marine ecosystem. Oregon Fish and Wildlife Acts 74 Oregon Territorial Sea Plan, “Part One: Ocean Management Framework,” last modified 1994, www.oregon.gov/LCD/OCMP/docs/ocean/otsp_1-c.pdf. 75 Land Conservation. 76 Ibid. 77 Ibid. 78 Ibid., 20. 79 Ibid., 21. 80 Ibid. 81 Commercial Fishing Act, OR. REV. STAT. § 506.001–.405 (2012); Developmental Fisheries Act, OR. REV. STAT. § 506.450–.465 (2012). 82 Ibid., § 506.036(1). 83 Ibid., § 506.109. HOFFMAN AND HILDRETH: LEGAL ASPECTS OF ECOSYSTEM-BASED MANAGEMENT The Oregon Fish and Wildlife Acts84 institute authority to the Department of Fish and Wildlife (ODFW) to enact laws for threatened and endangered species.85 Through these statutes, ODFW has broad authority to develop fish and wildlife protection programs and enforce these statutes. So far, the ODFW has adopted administrative rules about harvesting marine intertidal animals and has created “marine gardens” for certain intertidal areas where no taking of marine invertebrates is allowed.86 The broad authority given to ODFW allows for an EBM approach for managing wildlife and fish. This broad authority allows ODFW to manage endangered or threatened species alongside nonlisted species. Oregon is implementing EBM by combining regulation of listed species with nonlisted species to allow a comprehensive ecosystem management approach. Oregon acknowledges the importance of the interactions between listed species and nonlisted species by delegating authority to manage both to the same department. Submerged/Submersible Lands Act (SLA) The Division of State Lands has “exclusive jurisdiction over all un-granted tidal submerged lands owned by the state.”87 This means that the agency cannot sell or convey Oregon “lands lying below the line of ordinary low water . . . within the boundaries of the state.”88 SLA89 defines submersible lands as “lands lying between the line of ordinary high water and the line of ordinary low water of all navigable waters and all islands, shore lands . . . within the boundaries of this state . . . whether tidal or non-tidal.”90 EBM is easily implemented under the SLA because the definition of submerged lands includes a wide variety of ecosystems, including tide pools, ocean floor, kelp forests, and islands. This statute governs many human activities affecting multiple species and multiples zones along the coast and provides the flexibility to regulate different interactions in the marine environment. Oregon Shores Law (Beach Bill) Oregon’s “ocean shore” is defined within the statute as “land lying between extreme low tide of the Pacific Ocean and the line of vegetation” and is regulated by the Parks and Recreation Department as a state recreation area for public recreational purposes.91 The land “between ordinary high tide and extreme low tide” is also under jurisdiction of the State Land Board and the Parks and Recreation Department.92 The SLA and Beach Bill93 overlap in jurisdiction allowing integration of the perspectives of both agencies. Another component of EBM in the Beach Bill is having almost the entire Oregon beach publicly owned. Therefore, the statewide planning goals govern almost the entire Oregon shore with statewide policy goals. Oregon Removal-Fill Law 84 Fish and Wildlife Laws, OR. REV. STAT. § 496 (2012). Ibid., § 496.080, .090. 86 Ibid., § 496.182. 87 Ibid., § 274.710. 88 Ibid., § 274.005(7). 89 Submerged/Submersible Lands Act, OR. REV. STAT. § 274.005 (2012). 90 Ibid., § 274.005(8). 91 Ibid., § 390.605(3). 92 Ibid., § 390.615. 93 Ocean Shores Act, OR. REV. STAT. § 390.605 (2012). 85 THE INTERNATIONAL JOURNAL OF ENVIRONMENTAL SUSTAINABILITY Oregon’s Removal-fill Law94 requires people who plan to remove or fill material in waters of the state to obtain a permit from the Department of State Lands (DSL).95 The purpose of the law is to protect public navigation, fishery, and recreational uses of the waters. Under section ORS 196.800(15), “Waters of the state” are “natural waterways including all tidal and nontidal bays, intermittent streams, constantly flowing streams, lakes, wetlands, and other bodies of water in this state, navigable and nonnavigable, including that portion of the Pacific Ocean that is in the boundaries of this state.”96 Permits are required for removal or fill projects of fifty cubic yards or more of material in water of the state, or for the removal or fill of any material, regardless of the number of cubic yards, that affects a stream designated as an essential salmon habitat or from the bed and banks of any scenic waterway.97 There are many exceptions to these permit rules, with the main exception pertaining to ocean shore activities done by the Oregon Parks and Recreation Department under the Beach Bill.98 To grant a permit, DSL must determine whether the project would unreasonably interfere with “the paramount policy of this state to preserve the use of its waters for navigation, fishing, and public recreation.”99 DSL considers impacts to fishing, human health, and pubic recreation as well as impacts directly to the waterway such as water quality and navigation.100 Lastly, DSL must consider alternatives that may decrease impacts or eliminate them.101 Oregon’s removal-fill law partially integrates EBM by protecting multiple impacts to waterways not simply navigation. DSL must consider impacts to fish, human health, economy, and transportation. This integration of multiple impacts ensures that all interests are protected including the river ecosystem. Oregon’s Integrated Water Resources Strategy In 2009, the Oregon Water Resources Commission developed an innovative Integrated Water Resources Strategy.102 The purpose of the document was to understand Oregon’s water needs and to articulate a strategy to meet those needs in the future.103 The idea was to provide a plan to ensure Oregon had clean and reliable sources of water while also ensuring sufficient quality and quantity of water within the environment for a healthy ecosystem.104 The Oregon Water Resource Department worked with the Oregon Department of Environmental Quality, the Oregon Department of Fish and Wildlife, and the Oregon Department of Agriculture to devlope the plan.105 To include the public, an eighteen-member advisory group was formed to help achieve a diverse range of perspectives and interests.106 The four primary objectives were 1) to understand Oregon’s water resources today, 2) to understand instream and out-of-stream needs, 3) to understand the coming pressures that affect our needs and supplies, and 4) to meet Oregon’s instream and out-of-stream needs.107 In addition to integrating multiple parties to create the Integrated Water Resources Strategy, the strategy incorporated environmental, health, and economic impacts together. By combining 94 Removal-Fill Law, OR. REV. STAT. § 196.795–.910 (2012). Ibid., § 196.795. Ibid., § 196.800(15). 97 Ibid., § 196.810(1)(a). 98 Ibid. 99 Ibid., § 196.825(1)(b). 100 Ibid. 101 Ibid. 102 Or. Water Res. Dep’t, “Oregon’s Integrated Water www.oregon.gov/owrd/LAW/docs/IWRS_Final.pdf. 103 Ibid. 104 Ibid. 105 Ibid., 3. 106 Ibid. 107 Ibid., 5–6. 95 96 Resources Strategy,” last modified 2012, HOFFMAN AND HILDRETH: LEGAL ASPECTS OF ECOSYSTEM-BASED MANAGEMENT environmental impacts with health and economics, the Strategy considers instream and out-ofstream water uses together for the first time. For tracking water quality and ecosystem health together, the strategy uses a very visible indicator species that utilizes coastal watersheds, the coastal zone, and native salmonids (trout, steelhead, and salmon).108 The strategy examines relationships between water ecosystem health in regard specifically to wider considerations including climate change, land use planning, and public health. This is an example of integrating EBM into law and management practice. Emerging and Unresolved Issues As discussed above, multiple federal and state legal authorities provide a basis for implementing EBM when managing resources impact in the marine environment. Since there is no broad-based mandate for EBM at the federal level, the executive branch and the legislative branch could take action to support large marine ecosystem plans (LME).109 This could be similar to the Oregon Territorial Sea Plan on a much larger scale. However, there are four principle obstacles to success in implementing EBM. EBM under existing laws must achieve strong and effective applications of regulatory power, cooperative interagency coordination across multiple programs, and a centralized authority to oversee cooperation, and adequate funding.110 Conclusion In conclusion, pieces of EBM are currently being implemented in both federal and state laws. As we have seen at Oregon’s RRMRMPA, EBM has many benefits to ocean resource management. The benefits of having a federal mandate to implement EBM could be hard to imagine. Having a federal coherent and cohesive policy that spans multiple agencies and multiple activities, can reduce ocean acidification, increase salmon and other endangered species populations, allow better fishery management practices, and reduce our reliance on coal and oil. By continuing to incorporate EBM into decision-making processes and policies, we will do a better job at protecting marine ecosystems rather than focusing on individual species and individual human activities. After analyzing the implementation of EBM in existing federal and state laws, we can conclude that implementing EBM in a legal framework is possible at the state level as well as the federal level. Table 1: EBM Elements within Federal Statues 108 Ibid., 13. Parenteau, “Legal Authorities,” 743. 110 Parenteau, “Legal Authorities,” 744. 109 THE INTERNATIONAL JOURNAL OF ENVIRONMENTAL SUSTAINABILITY Rosenberg’s EBM elements Federal Statute Coastal Zone Management Act Conserve ecosystem services X Crosssectoral x Clean Water Act X x Marine Mammal Protection Act X x Endangered Species Act X x Magnuson-Stevens Fishery Conservation and Management Act Outer Continental Shelf Lands Act X Marine Sanctuaries Act X x x National Environmental Policy Act X x x x X Address cumulative human impacts x x x Table 2: EBM Elements with Oregon State Statutes Rosenberg’s EBM elements State Statute Oregon Ocean Resource Management Act Statewide Lane Use Planning Act Conserve ecosystem services x Cross-sectoral Address cumulative human impacts X x x X x Commerical Fishing and Development Fisheries Acts Oregon Fish and Wildlife Acts x x x x Submerged/Submersible Lands Act x x Oregon Shores Law x x Oregon Removal-Fill Law x x Oregon Water Resources Laws x X x Acknowledgement This report was prepared by Oregon Sea Grant under award (grant) number NA14OAR4170064 (CFDA No. 11.417) (project number R/RM-08) from the National Oceanic and Atmospheric Administration’s National Sea Grant College Program, U.S. Department of Commerce, and by appropriations made by the Oregon State Legislature. The statements, findings, conclusions, and recommendations are those of the authors and do not necessarily reflect the views of these funders. REFERENCES HOFFMAN AND HILDRETH: LEGAL ASPECTS OF ECOSYSTEM-BASED MANAGEMENT Christensen, Norman L., Ann M. Bartuska, James H. Brown, Stephen Carpenter, Carla D’Antonio, Rober Francis, Jerry F. Franklin, James A. MacMahon, Reed F. Noss, David J. Parsons, Charles H. Peterson, Monica G. Turner, and Robert G. Woodmansee. “The Report of the Ecological Society of America Committee on the Scientific Basis for Ecosystem Management.” Ecological Applications 6 (1996): 665–91. doi:10.2307/2269460. Fletcher, Kristen. “Regional Ocean Governance: The Role of the Public Trust Doctrine.” Duke Environmental Law and Policy Forum 16 (2006): 187–204. Greenwald, Noah, and Amanda Garty. “Species of Concern of the Tillamook Rainforest and North Coast, Oregon.” Last modified 2007. www.biologicaldiversity.org/publications/papers/TillamookReport.pdf. Macpherson, Marian. “Integrating Ecosystem Management Approaches into Federal Fishery Management through the Magnuson-Stevens Fishery Conservation and Management Act.” Ocean and Coastal Law Journal 6 (2001): 1–32. Mcleod, Karen L., Jane Lubchenco, Stephen R. Palumbi, and Andrew A. Rosenberg. “Scientific Consensus Statement on Marine Ecosystem-based Management.” Lasted modified 2005. compassonline.org/sites/all/files/document_files/EBM_Consensus_Statement _v12.pdf. NOAA (National Oceanic and Atmospheric Administration). “The National Oceanic and Atmospheric Administration National Environmental Policy Act Handbook.” Last modified 2009. www.nepa.noaa.gov/NEPA_HANDBOOK.pdf. Norse, Elliot A. “A Zoning Approach to Managing Marine Ecosystems.” Accessed April 24, 2015. mcbi.marine-conservation.org/publications/pub_pdfs/Norse_zoning_2003.pdf. ———. “Ending the Range Wars on the Last Frontier: Zoning the Sea.” In Marine Conservation Biology: The Science of Maintaining the Sea’s Biodiversity, edited by Elliot A. Norse and Larry B. Crowder, 422-435. Washing DC: Island Press, 2005. Oregon Coast. “Oregon’s Seven Wonders.” Accessed January 8, 2015. traveloregon.com/cities -regions/oregon-coast. Oregon Government. “Extent of the Coastal Zone.” Accessed February 22, 2015. www.oregon.gov/lcd/ocmp/pages/cstzone_intro.aspx. Ocean Resource Team. “Redfish Rocks Marine Reserve and Marine Protected Area.” Last modified 2005. www.oceanresourceteam.org/initiatives/successes/marine-reserve. Oregon Territorial Sea Plan. “Part One: Ocean Management Framework.” Last modified 1994. www.oregon.gov/LCD/OCMP/docs/ocean/otsp_1-c.pdf. Oregon Water Resource Department. “Oregon’s Integrated Water Resources Strategy.” Last modified 2012. www.oregon.gov/owrd/LAW/docs/IWRS_Final.pdf. Parenteau, Patrick A., Donald C. Baur, and Georgia Hancock Snusz. “Legal Authorities for Ecosystem-based Management in US Coastal and Ocean Areas.” In Ocean and Coastal Law and Policy, edited by Donald C. Baur, Tim Eichenberg, and Michael Sutton, 703– 67. Chicago: American Bar Association, 2015. Redfish Rocks Community Team. “Redfish Rocks—The Community Team, Marine Reserve, and MPA.” Accessed February 23, 2015. www.redfishrocks.org. Rosenberg, Andrew A. “Regional Governance and Ecosystem-based Management of Ocean and Coastal Resources: Can We Get There from Here?” Duke Environmental Law and Policy Forum 16 (2006): 179–80. Swedeen, Paula, Dave Batker, Hans Radtke, and Roelof Boumans. “An Ecological Economic Approach to Understanding Oregon’s Coastal Economy and Environment.” Last modified 2008. eartheconomics.org/FileLibrary/file/Reports/Understanding_Oregons _Coastal_Economy_and_Environment.pdf. UN Convention on the Law of the Sea. “Part V Exclusive Economic Zone.” Accessed March 13, 2015. www.un.org/depts/los/convention_agreements/texts/unclos/part5.htm. THE INTERNATIONAL JOURNAL OF ENVIRONMENTAL SUSTAINABILITY ABOUT THE AUTHORS Alexandra Hoffman: Legal Fellow, Environmental and Natural Resources Law Center, School of Law, University of Oregon, Eugene, Oregon, USA Richard Hildreth: Advisor, Environmental and Natural Resources Law Center, School of Law, University of Oregon, Eugene, Oregon, USA