Download Legal Aspects of Ecosystem-based Management

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
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© 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.
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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
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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
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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
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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.
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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