Marine Protected Areas: An Overview

Marine Protected Areas: An Overview
Updated November 14, 2008
Harold F. Upton
Analyst in Natural Resources Policy
Resources, Science, and Industry Division
Eugene H. Buck
Specialist in Natural Resources Policy
Resources, Science, and Industry Division

Marine Protected Areas: An Overview
Summary
There continues to be congressional interest in limiting human activity in certain
areas of the marine environment, as one response to mounting evidence of declining
environmental quality and populations of living resources. The purposes of proposed
additional limits would be both to stem declines and to permit the rehabilitation of
these environments and populations. One method of implementing this concept is
for Congress to designate areas where activities would be limited, often referred to
as marine protected areas (MPAs). Translating the MPA approach into a national
program, however, would require that Congress resolve many economic, ecological,
and social dilemmas.
The complexity of creating a program is compounded by controversy over the
uses that would be allowed, curtailed, or prohibited in MPAs; the purposes of a
system of MPAs; and the location, size, and distribution of MPA units. One possible
way to get past some of these complexities is to think of MPA designations as a form
of zoning in the ocean. Experiences related to designating MPAs in other countries
also may be instructive. However, questions have arisen about the effectiveness of
administration and enforcement, the benefits and costs of MPAs, and the evaluation
of outcomes at some sites.
Numerous marine sites have been designated by federal and state governments
for some kind of protection. Perhaps the best-known federal sites are units in the
National Marine Sanctuary System. The National Marine Sanctuaries Act authorizes
the Secretary of Commerce to designate areas of marine and Great Lakes
environments to protect cultural and natural resources. The Bush Administration also
has supported the MPA concept. It designated the Papah~naumoku~kea Marine
National Monument (Northwestern Hawaiian Islands Marine National Monument)
in 2006 as one of the world’s largest MPAs and has supported the activities of the
National Marine Protected Areas Center in the National Oceanic and Atmospheric
Administration. It has continued most of the Clinton Administration initiatives to
coordinate protection of marine resources at designated sites, including implementing
Executive Order 13158 (May 2000), which endorsed a comprehensive system of
MPAs.
Additional actions by Congress would be needed to create an MPA system that
could be characterized as integrated or comprehensive. Some issues that would
likely be raised in congressional discussions include whether new legislation is
desired or needed; what the basic characteristics of units in any MPA system should
be; how MPAs might be used to resolve use conflicts; and whether adequate funding
would be authorized and appropriated to both enforce the protected status and
evaluate the ecological and social impacts of MPAs. Over the last three decades
Congress has examined the concepts behind MPAs and experiences with protected
areas as it considered appropriations and proposals to reauthorize coastal and marine
resource protection laws. The 110^th Congress has considered some MPA-related
activities such as enhancing coral reef conservation, modifying boundaries and
protections for three national marine sanctuaries, and reauthorizing the National
Marine Sanctuary Act.

Contents
Marine Protected Areas: An Overview.................................1
Acknowledgment ..............................................5
The Concept of Marine Protected Areas............................2
Definition ................................................2
Administrative Actions.........................................4
MPA Center Activities......................................6
Other MPA Management and Coordination Efforts...............7
Potential Benefits, Issues, and Challenges...........................7
Fisheries .................................................8
Challenges to MPA Siting and Design........................10
Marine Jurisdiction.......................................11
Zoning .................................................11
Other Issues.............................................12
National Reports.............................................13
Recent Congressional Action....................................14
Appendix: Current Federal Laws and Programs.........................17
National Marine Sanctuaries Act (NMSA).....................17
Coastal Zone Management Act (CZMA).......................18
Magnuson-Stevens Fishery Conservation and Management Act
(MSFCMA) .........................................19
The Wilderness Act.......................................20
National Park Service Organic Act...........................21
National Wildlife Refuge Administration Act...................21
Antiquities Act of 1906....................................22
Northwest Straits (NS) Marine Conservation Initiative Act........22
Other Protection Efforts....................................23
Acknowledgment
This report was originally drafted by retired CRS specialist Jeffrey A. Zinn.

Marine Protected Areas: An Overview
Many coastal and offshore ecosystems continue to be degraded by
anthropogenic causes, despite efforts to control or limit them. The causes of
degradation are numerous, and can include:
^! pollutants;
^!runoff (carrying sediment and chemicals) from land;
^!coastal development;
^!introduction of non-native or invasive species;
^!overfishing and bycatch;
^!habitat alteration; and
^!rising sea level and climate change.
The public is becoming aware of degraded marine areas because of widely
publicized incidents and trends, including a large seasonal “dead zone” in the Gulf
of Mexico, the environmental effects of oil spills, population declines of many
popular fish species to levels that can no longer sustain commercial or even
recreational harvests, and deteriorating coral reefs (reef bleaching). Current
approaches to managing resources in the marine environment often appear to be
ineffective because of continuing population and environmental quality declines, thus
prompting a search for alternatives.
Marine protected areas (MPAs) are generally defined as areas reserved by law
or other effective means to protect part or all of the enclosed environment. Some
observers, often including scientists and environmental advocates, recommend
designating MPAs to achieve management and conservation goals. From their
perspective, the designation of MPAs is not a panacea that responds to all causes of
degradation, or leads to a quick recovery for all degraded environments, but in many
cases they contend that MPAs are necessary for protecting and restoring the marine
environment. Policy makers are looking at how this tool has worked, alternative
ways that MPAs can be designed, and whether and how MPAs might be broadly
applied. Little opposition has been expressed about the overall concept of
establishing MPAs, but some of the more specific discussions about which uses
would be limited or prohibited have been controversial. Oil and gas development,
the fishing industry, and other marine industries have consistently expressed concerns
with the use of MPAs. These industries question whether the use of MPAs would
afford the proper balance between conservation and economic activities.
The 110^th Congress has considered reauthorization of the National Marine
Sanctuary Act (NMSA; 16 U.S.C. §§ 1431, et seq.) with introduction of H.R. 6537
and by holding several hearings, but no legislation has been passed. Many hold that
NMSA comes closest to authorizing MPAs. It authorizes the National Oceanic and
Atmospheric Administration (NOAA) to designate specific sites for comprehensive

and coordinated management and conservation. However, some, especially
environmentalists and many marine scientists, assert that a more comprehensive
approach with stricter protection and more extensive protected areas is still needed.
This report identifies a number of issues related to establishing MPAs in the
United States. It begins by defining the concept and administrative actions taken to
provide spatial protection in marine areas. It then considers some of the key issues
and potential benefits and costs of designating additional MPAs. It concludes by
summarizing current congressional interest in the topic and legislation proposed
during the 110^th Congress. Existing federal laws related to the use of MPAs are
summarized in the Appendix.
The Concept of Marine Protected Areas
The term MPA has been used to characterize spatial protection of marine
resources, but ambiguities exist regarding the level of protection that qualifies an area
as an MPA. Protection might be considered on a continuum — from no protection
to complete protection where all human activities within an area are prohibited.
Those areas afforded complete protection would certainly quality as MPAs, but areas
closed to a specific use or to protect a species might not. Virtually all of U.S. waters
are protected in some manner, but all U.S. waters are not considered MPAs. Often
the definition depends on the context, such as the characteristics of the resources at
risk and the extent of associated threats. The following section provides basic
definitions of MPAs, but application of the concept is likely to evolve with
improvements in scientific understanding of the marine environment and
development of associated institutions.
Definition. MPAs have been defined in many ways. Definitions usually
include three criteria: (1) geographically defined and bounded places; (2) approaches
that manage systems rather than individual resources or species; and (3) programs
that take a long-term perspective on resource management. The definition currently
being used in this country, found in Section 2 of E.O. 13158 on Marine Protected
Areas, defines MPAs as “any area of the marine environment that has been reserved
by Federal, State, territorial, tribal, or local laws or regulations to provide lasting
protection for part or all of the natural and cultural resources therein.”
The E.O. 13158 definition is very similar to what is probably the most widely
used definition in the world, developed by the International Union for the
Conservation of Nature (IUCN). It states that an MPA is “an area of intertidal or
subtidal terrain, together with its overlying water and associated flora, fauna,
historical and cultural features, which has been reserved by law or other effective¹
means to protect part or all of the enclosed environment.” Each designated area
must be a minimum of 1,000 hectares (2,471 acres). This definition is then applied
to distinct categories of areas that reflect a wide range of possible management
objectives. The IUCN specifies that sites meet this definition only when at least

¹ International Union for the Conservation of Nature and Natural Resources (IUCN),
Guidelines for Protected Area Management Categories, Gland, Switzerland, 1994.

three-quarters of a designated MPA is managed for the primary category and
management of the remaining area is not in conflict. The IUCN categories are:
Category 1: Strict Nature Reserve/Wilderness Area, managed mainly for
science or wilderness protection.
Category 1a: Strict nature reserve managed mainly for science.
Category 1b: Strict nature reserve managed mainly for wilderness
protection.
Category 2: National Park, protected and managed mainly for ecosystem
protection and recreation.
Category 3: National Monument, managed mainly for conservation of
specific natural features.
Category 4: Habitat Species Management Area, managed mainly for
conservation through management intervention.
Category 5: Protected Landscape/Seascape, managed mainly for
landscape/seascape conservation and recreation.
Category 6: Managed Resource Protected Area, managed mainly for the
sustainable use of natural ecosystems.
As one becomes more specific about possible goals and objectives for an MPA,
the question of how MPAs would be defined quickly grows complex. They could
involve state and federal jurisdiction, each with different goals and responsibilities.
They could emphasize either some species (perhaps the commercially most valuable
or the rarest ones) over others, or the general health of the entire ecosystem over
individual components. Among the questions currently receiving the most attention
are: (1) would certain activities or uses be automatically prohibited at all places
designated as MPAs, such as automatically closing them to all resource extractive
activities, or would a list of permitted and prohibited activities be developed for each
designated area or category of areas; and (2) would environmental conditions or
resource uses beyond the boundaries of MPAs be managed to limit adverse effects
on resources within MPAs?
Definitions are one way to convey expectations about an MPA program. For
example, one could conclude that most of the Gulf of Maine is protected by an
impressive web of areas designated for a variety of reasons. However, a closer
examination shows that most of these designations protect a single commercial fish
species or group of species or limit a specified activity. Some want MPAs to be
based on a broad definition to include designations where protections are limited to
a few resources or uses, while others will want it to apply only to sites where
resources are strictly protected. Between these two possibilities are many
intermediate approaches. This debate over definition continues because the MPA
concept has been used in many different ways. Several narrower terms are being
used to describe types of places that provide high levels of protection, and they also
have been used with different meanings. These places might also be called MPAs,
although they are often expressed as if they were alternatives to MPAs. These terms
include:
^!marine reserve, where uses that remove resources are generally
prohibited (these areas may also be called ecological reserves);

^!ocean wilderness, like the terrestrial concept for wilderness areas on
federal lands where no alterations or activities that leave lasting
impacts are permitted, but low-impact recreational activities may be
permitted;
^!fully protected marine area, generally a “no-take” area where a wide
variety of extractive and consumptive uses/activities are prohibited;
^!national marine sanctuary, a specific designation created in federal
legislation more than 30 years ago to ensure conservation and
management for areas of special national significance;
^!marine managed area, managing for multiple objectives, where
protection is not the only, and may not even be the main, objective;
and
^!marine park, similar to the terrestrial concept for a park where
recreational activities are allowed and resource conservation is also
a goal of the designation.
Administrative Actions
According to the MPA Center definition, approximately 1,700 MPAs are
managed by federal, state, and territorial agencies in U.S. waters.² These areas cover
34% of U.S. marine waters and vary widely in level of protection, restrictions on
human uses, and overall purpose.³ Less than 30% of MPAs are managed by federal
agencies, but because of the large size of several federal MPAs, nearly 85% of the
total MPA area in U.S. waters is under federal jurisdiction. About 90% of MPAs
permit access and multiple use, including fishing. Most are permanent, providing
protection throughout the year, and most have been established since 1970. NOAA
manages MPAs for fisheries management (National Marine Fisheries Service), units
of the National Estuarine Research Reserve System (Coastal Programs in National
Ocean Service), and the National Marine Sanctuary Program (National Ocean
Service). The Department of the Interior manages marine areas that are part of the
National Wildlife Refuge System (Fish and Wildlife Service), National Parks
(National Park Service), and national monuments (Fish and Wildlife Service and
National Park Service). A number of federal laws and programs already exist, and
they have been summarized in the Appendix.
It is thus apparent that the protection of marine resource areas through MPAs
is not a new concept, but what is relatively new is the increasing interest in
developing a coordinated, nationwide system of marine protected areas. This interest
has been heightened by actions initiated by the Clinton Administration and continued
by the Bush Administration. This concept has diffuse roots and has been most
evident among scientists and some nongovernmental organizations.
President Clinton responded to growing concerns about marine resource
degradation in several ways. He issued Executive Order 13089 on coral reef

² Although many of these areas have been in existence for decades, in 2007 the MPA Center
completed its inventory of MPAs in the United States that was based on its MPA definition.
³ For example, less than 3% of total MPA area in the United States is no-take (prohibits
fishing) or less than 1% of all U.S. waters.

protection in June 1998 (1998 was also the internationally recognized “Year of the
Ocean”). In 1999 and 2000, the Administration issued action plans calling for the
federal government to work with state, territorial, and nongovernmental partners to
expand and strengthen MPAs throughout the United States.⁴ On May 26, 2000,
President Clinton issued the Marine Protected Areas Executive Order, E.O. 13158.
This order called for “strengthening and expanding the Nation’s system of marine
protected areas ... throughout the marine environment ... [to] enhance the
conservation of our Nation’s natural and cultural marine heritage and the ecologically
and economically sustainable use of the marine environment for future generations.”⁵
More specifically, this order:
^!aims to increase coordination and effectiveness of MPAs (but did
not change existing MPAs or establish new MPAs);
^!directs federal agencies to comply with existing regulations
regarding MPAs (but did not alter existing regulations or
authorities); and
^!charges NOAA and the Department of the Interior with leading
federal efforts by (1) creating a list of existing MPAs in the United
States; (2) creating a national MPA webpage; (3) establishing a
national MPA Center to provide tools and strategies for promoting
MPA effectiveness; (4) establishing an MPA Advisory Committee
to provide recommendations from stakeholders outside the federal
government;⁶ and (5) consulting with governmental and non-
governmental stakeholders.
On December 4, 2000, President Clinton issued E.O. 13178, creating the
Northwestern Hawaiian Islands (NWHI) Coral Reef Ecosystem Reserve. This
reserve, encompassing about 120,000 square miles (about 77 million acres), is the
largest protected area ever established in the United States. Within the overall
reserve, 15 reserve preservation areas encompassing about 6,200 square miles (nearly
4 million acres, or about 5% of the reserve) were designated where all consumptive
or extractive activities are limited. NOAA managed the reserve under the authority
of the NMSA.
President Bush has generally continued the initiatives started by the Clinton
Administration, and has expanded on them in some cases. On June 4, 2001, after a
review, Secretary of Commerce Donald L. Evans announced the retention of the
Marine Protected Areas E.O. 13158. On June 15, 2006, President Bush established
the Papah~naumoku~kea Marine National Monument by proclamation under the
Antiquities Act that encompasses the areas protected by the original NWHI reserve.

⁴ The first plan, Turning to the Sea: America’s Ocean Future, was announced by a Cabinet-
level task force created at the National Ocean Conference in 1998. It was released
September 2, 1999. The second was the National Action Plan to Preserve Coral Reefs,
prepared by the U.S. Coral Reef Task Force and released on March 2, 2000.
⁵ The order also directed the EPA to reduce pollution of beaches, coasts, and oceans by
strengthening water quality protection for marine waters.
⁶ A request for nominations was published at 65 Fed. Reg. 50503 (August 18, 2000).

In August 2008, President Bush proposed protection for nearly 900,000 square
miles in the Central and Western Pacific under the 1906 Antiquities Act (16 U.S.C.
§§ 431-443). The Central Pacific areas would include waters adjacent to Wake,
Howland, Baker and Jarvis islands; Johnson, Palmyra, and Rose Atolls; and Kingman
reef. In the Western Pacific the area would include the waters around the northern
islands of the Northern Mariana Islands, including the Mariana Trench. The
Governor of Saipan (Northern Mariana Islands) and some Guam fishermen have
opposed the Marianas Trench proposal while several environmental groups have
voiced public support. The proposal is being reviewed by NOAA, the Interior
Department, Defense Department, and the Council on Environmental Quality.
On September 26, 2008, President Bush amended E.O. 12962 to ensure that
recreational fishing is “managed as a sustainable activity in national wildlife refuges,
national parks, national monuments, national marine sanctuaries, marine protected
areas, or any other relevant conservation or management areas under any Federal
authority, consistent with applicable law.” According to recreational interests, this
action allays their concerns of being excluded from marine protected areas.⁷
MPA Center Activities. In 2000, the National MPA Center was created to
implement E.O. 13158 “to develop a framework for a national system of MPAs, and
to provide Federal, State, territorial, tribal, and local governments with the
information, technologies, and strategies to support the system.”⁸ In 2003, the center
established a 30-member MPA Advisory Committee that has provided broad
representation of marine regions, including the Great Lakes and the U.S. territories.
The committee’s main purpose is to provide advice to the Secretaries of Commerce
and the Interior on developing a national system of MPAs. In March of 2008, the
center released a revised draft framework containing a set of recommendations for
developing a national system of MPAs. The framework, developed after numerous
workshops and advisory committee meetings, proposes guiding principles, goals and
objectives, and definitions for a national system.⁹
The MPA Center has built a domestic inventory of federal, state, local, and
tribal MPAs to inform the development of the national system called for in E.O.
13158.¹⁰ The inventory may be used to provide information for environmental
assessments; to lay a foundation for objective analysis in designing a national MPA
system; and to provide a centralized source of information that can be used to help
protect marine resources. The inventory contains information such as management
authority, for nearly 1,700 sites.
Other initiatives of the center include a virtual library and education projects to
increase knowledge and awareness about MPAs. The center provides educators with

⁷ “Presidential Amendment Ensures Recreational Fishing to Be Maintained on Federal
Lands and Waters,” PR Newswire (Sept. 27, 2008).
⁸ For information on the activities of the National MPA Center, go to [http://www.mpa.gov].
⁹ The most recent revised draft framework is available at [http://mpa.gov/national_system
/national_system.html ].
¹⁰ The inventory is available at [http://mpa.gov/helpful_resources/inventory.html].

materials about topics that are relevant to MPAs, such as marine habitats and
fisheries, through the MPA website and workshops. It is also leading a multi-year
pilot program in California, Oregon, and Washington to try to improve approaches
for designing and managing a system of MPAs at a regional level.
Other MPA Management and Coordination Efforts. While the center
has coordinated many aspects of the federal interest in MPAs, other federal bodies
and state governments have been active in managing and coordinating activities
related to MPAs. The National Park Service Ocean Park Stewardship Action Plan
highlights the establishment, in partnership with NOAA, other relevant agencies, and
public and private entities, of a seamless system of ocean parks, sanctuaries, refuges,
and reserves. This plan also identifies actions related to mapping, enhancing
protection, educating and engaging the public, and increasing the technical capacity
for exploration and stewardship. These efforts are supported by a general agreement
a between the Department of Commerce (National Marine Sanctuary Program and
Estuarine Reserves Division) and the Department of the Interior (Fish and Wildlife
Service and National Park Service) to collaborate on efforts to improve management
efficiencies, increase joint planning efforts, enhance public education, and improve
law enforcement and rescue capabilities.
States have also been engaged in developing and using MPAs, with California
being perhaps the most active. California authorities have been working to reach
consensus on a comprehensive program of MPAs in state coastal waters under the
1999 Marine Life Protection Act (Assembly Bill 993). In April 2007, the California
Department of Fish and Game adopted regulations to establish 29 marine reserves
along the central California coast from Pigeon Point in San Mateo County to Point¹¹
Conception in Santa Barbara County. The central coast is the first of five regions
to complete the planning and implementation process. The reserves include 204
square miles or approximately 18% of state waters with 85 square miles designated
as no-take marine reserves. Recreational and commercial fishing interests opposed
the proposal because of the reduced harvest opportunities it imposes, while
environmental interests view this as a good start to more extensive protection. Other
states have also taken action. For example, Hawaii enacted legislation (Act 306 in
1998) to establish a network of marine aquarium reserves along the Kona-Kohala
coast of the Island of Hawaii.
Potential Benefits, Issues, and Challenges
Motivation for designating MPAs appears to be generated by the expectation
that the intensity of human activities in the marine environment will continue to
grow, and that this growth will exacerbate use conflicts and further degrade
ecosystems. The benefit most often cited by proponents of MPAs is protection and
restoration of ecosystems generally, and more specifically, valued fish populations.
Additional benefits may include new educational and recreational opportunities,
expanded tourism, protection of cultural resources (shipwrecks, for example), and
contributions to basic science and to improved environmental conditions.

¹¹ For information related to the California Marine Life Protection Act Initiative, see
[http://www.dfg.ca.gov/mlpa/phase1.asp].

While debate about the benefits and costs of MPAs focuses most frequently on
the role MPAs might play in the recovery of fish populations, they could provide
other benefits.
^!MPAs could be a source of baseline scientific data about current and
changing conditions in the marine environment, and serve as a
system so that baselines and changes could be compared among
locations, particularly as climate change alters marine ecosystems.
In this capacity, MPAs would provide a set of benefits not unlike
one of the purposes that was articulated in legislation creating the
National Estuarine Research Reserve System, a component of the
federal Coastal Zone Management Program, discussed below.
^!MPAs could serve as education destinations, providing opportunities
for diving to observe the marine environment. Related on-shore
support centers could be developed to inform a larger segment of the
general public about resources protected in an MPA and the benefits
that accompany the protected designation.
^!MPAs could provide other environmental services, such as
sequestering carbon, providing improved habitat for corals, and
expanding mangroves that could dampen possible damages from
hurricanes and other coastal storms.
^!MPAs could protect cultural artifacts, such as shipwrecks and other
places of historical significance, including places held sacred by
native peoples. The first national marine sanctuary was designated
to protect the site where the remains of the Civil War ironclad
Monitor came to rest after sinking in 1862 off North Carolina.
^!MPAs could become an attraction that makes them destinations for
tourists and recreation activity. Activities may take place in MPAs
or in nearby shore facilities, such as aquaria or museums. A unit in
the National Park Service system, Buck Island Reef National
Monument, with its snorkeling trail, is an example of such a place.
Commercial interests have responded that many of these benefits can be
generated under current laws and programs. These interests assert that new
initiatives should not duplicate other marine related legislation such as the Magnuson
Stevens Fishery Conservation and Management Act (MSFCMA) or the Coastal Zone
Management Act (CZMA). They also maintain that the benefits of additional
protection must be weighed against the costs of constraining or prohibiting
commercial activities.
Fisheries. The strongest and most vocal support of MPAs often is based on
the potential role for MPAs in protecting and restoring fish populations by limiting
the activities of commercial and recreational fishermen. Not only does overfishing
reduce populations of desirable species, but interactions with fishing gear can result
in the mortality of nontarget species (bycatch) and degrade habitat. The benefits of
MPAs identified in these studies include:

^!protecting individual species and biodiversity more generally within
MPA boundaries;
^!managing fishery populations by controlling commercial and
recreational harvest rates and protecting locations where populations
congregate at critical points in their life cycles, such as spawning
grounds and nursery habitats;
^!reducing damage to habitat;
^!protecting rare, threatened, or endangered species;
^!preserving or restoring the viability of representative habitats, and
^!protecting portions of larger ecosystems from over-harvesting.¹²
Considerable scientific and social debate continues on the potential merits of
MPAs. Some of the strongest opposition to MPAs is raised by fishing interests that
could be hurt by a designation. In this debate, fishing interests question whether
MPAs would have unacceptable socioeconomic consequences when compared to the
benefits that would be generated. An important element in this discussion of
possible tradeoffs is the recognition that MPA designations can displace resource use
from protected areas to nearby areas, either transferring or raising new management
issues by displacing fishing effort. MPA proponents assert that some fish are likely
to stray into adjacent unprotected areas where they might benefit fishermen.
However, without other management actions, protecting one area may lead to
overuse or excessive harvest in other areas, moving or concentrating rather than
resolving the biological management issues. Among the most contentious aspects
of designating and managing MPAs for fishery management are:
^!deciding whether and where MPAs might be appropriate for
restoring fish populations;
^!deciding whether certain fishing techniques should be limited or
prohibited because they capture nontarget species and damage
marine habitat;
^!determining how MPA protection would be integrated with other
management measures both within and outside the MPA; and
^!understanding the effects of MPAs on the economic, social, and
cultural well-being of nearby coastal communities.
Fishing disproportionately removes larger and older fish — often because they
are more highly valued by recreational and commercial fishermen, and because of
regulations protect smaller and faster-growing fish to increase stock yields. Older
females produce greater numbers of eggs than the same biomass of younger females
because egg production is generally proportional to fish volume. For some species,
larvae produced by older females are more likely to survive because older females
produce eggs with a greater amount of food reserves.¹³ MPAs could be beneficial if
fish remain in the protected area and grow to relatively larger sizes. Therefore,

¹² Stephan R. Palumbi, Marine Reserves: A Tool for Ecosystem Management and
Conservation, prepared for the Pew Oceans Commission (Palo Alto, CA: Stanford Univ.,

2002), 44 pp.

¹³ Stephen R. Palumbi, “Fisheries Science: Why Mothers Matter,” Nature, v. 430, (August

5, 2004), pp. 621-622.

protected areas, such as MPAs, appear to be most beneficial to sedentary, reef-
associated species or, more generally, to species which strongly associate with certain
habitat features that cause these species to restrict their movement. In these
situations, species would also benefit if unique habitat can be identified and
protected.
For all the discussion of how protected areas would benefit fisheries, there
remain large uncertainties about the effects of MPAs on the size and characteristics
of fish populations and on ecosystem components more generally. Studies of MPAs
show that population biomass, size of fish, density in a given area, and species
diversity have increased within MPAs.¹⁴ Others counter that improvements were
often inevitable because of previous management failures that resulted in extremely
low population levels. Some fishery experts conclude that consistent use of
traditional approaches to fisheries management, such as size limits, catch limits, or
seasons, are more effective management tools than establishing places where all
fishing is permanently prohibited.¹⁵
Challenges to MPA Siting and Design. Translating the concept of MPAs
into an extensive system would present multiple challenges. Many of these can be
documented by tracking the experiences and issues addressed both at NOAA’s MPA
Center and at other organizations around the world charged with MPA-related
responsibilities, or by reviewing the types of controversies that have been raised
when national marine sanctuaries have been proposed. An initial set of challenges
centers on selection of sites. The approach to establishing MPAs often reflects the
answers to several questions.
^!What criteria — representative habitats, ecological integrity, social
acceptability, degree of degradation, diversity of species, presence
of endangered species, and so forth — should determine MPA
locations, sizes, and boundaries?
^!Should particular species or ecosystems be protected? If protection
is based on ecosystems, can only portions be protected, both because
it is almost impossible to protect an entire ecosystem in such a
dynamic setting, and because migratory species move across many
ecosystems?
^!Should boundaries of an MPA be decided based on geographic areas
or on ecosystems, which are often fragmented? If an MPA is
adjacent to the coast, could it also include waterways that drain into
it or associated terrestrial areas?
^!Should sites that are already protected under other designations with
purposes that are similar to MPAs be given a higher priority to
receive an MPA designation, or a lower one since they are already
protected?

¹⁴ PISCO (Partnership for Interdisciplinary Studies of Coastal Oceans), The Science of
Marine Reserves, 2007, at [http://www.piscoweb.org].
¹⁵ Dr. Robert L. Shipp, Take Marine Protected Areas (MPAs) as a Fishing Management
Tool: A Programmatic Perspective, Report to the FishAmerica Foundation, (Alexandria,
VA: 2002).

These challenges represent only a fraction of potential siting issues. Many of
the areas that are likely to be considered for MPAs already have had extensive human
use, and effects of this use are frequently the reason for proposing designation.
Proposals to designate units under the federal National Marine Sanctuaries Program
have generated controversy because of opposition from interests who may have their
activities curtailed. The designation process, which has lasted several years in some
cases, has resulted in protracted debates among interests, or stakeholders, and some
proposals have been rejected because of an inability to resolve these conflicts.
The success or failure of MPA designations is far more likely to reflect
socioeconomic, cultural, and political factors than to reflect biological considerations.
Perceptions are likely to be positive for stakeholders (including resource users), if
designations are viewed as based on a fair, equitable, and transparent process for
establishing and managing sites; clearly stated goals for the site; and expanding
benefits while containing costs. In one example, a study compared a successful
national marine sanctuary designation in American Samoa with an unsuccessful one
in Puerto Rico, and attributed much of the difference in outcomes to the attention
given to local cultural, social, and economic circumstances and institutions. One
such difference was that success required retaining a local voice in management
decisions.¹⁶
Marine Jurisdiction. MPAs of various sorts have been established in a range
of aquatic habitats including open ocean, coastal areas, intertidal zones, estuaries, and
the Great Lakes. In these areas, states and the federal government assert varying
degrees of authority over activities affecting living and nonliving resources.
Ownership and control also are viewed differently in marine areas, where there is
little private ownership, although submerged lands, especially in nearshore areas, are
sometimes leased. Generally the degree of control increases as one moves toward
shore from the seaward extent of the Exclusive Economic Zone (EEZ), 200 nautical
miles (nm)¹⁷ from shore, to the baseline, a line that generally follows the shoreline.
Governments also protect environmental quality, and lease the surface and subsurface
for numerous activities, most notably oil and gas extraction. Zones or areas defined
in ocean and coastal areas include state waters (shoreline to 3 nm), territorial sea
(shoreline to 12 nm), contiguous zone (12 to 24 nm), exclusive economic zone 12 to

200 nm) and the high seas (beyond 200 nm).

The range of marine organisms and associated ecosystems seldom conform to
these political and national boundaries. This presents management challenges when
activities harmful to an MPA occur outside jurisdictional boundaries of the agency
managing the MPA or when organisms move into other jurisdictions. Potential
benefits of MPAs are likely to be dissipated unless agreements can harmonize
protection efforts beyond MPA and jurisdictional boundaries
Zoning. An MPA designation might not require that an entire site be
administered under one set of rules. Many proponents have advocated a zoning

¹⁶ S. J. Fiske, “Sociocultural Aspects of Establishing Marine Protected Areas,” Ocean and
Coastal Management, v. 17, no. 1 (1992): 25-46.
¹⁷ A nautical mile (nm) (6,076 feet) is equal to 1.15 statute miles (5,280 feet).

approach, subdividing a site into subunits with different levels of protection, or
protection for different purposes. Zoning would allow managing agencies to achieve
multiple policy objectives. Zoning of a protected marine area to provide different
levels of protection was probably first implemented by the Great Barrier Reef Marine
Park Authority in Australia in the early 1980s, and has more recently been adopted
elsewhere, such as the Florida Keys National Marine Sanctuary. Subdividing
designated areas may be especially useful in areas where use pressures and activities
are most concentrated.
The notion of zoning is well-developed on land, but there is little experience
with what adjustments might be needed to apply it effectively in an aquatic
environment. One reason is that this concept is at odds with the traditional view that
the ocean is “free to all” and “boundless,” able to accommodate all uses in its vast
expanse. This view was more widely accepted when technology to gain access to
deep water resources was limited and before claims of 200-mile EEZs become an
accepted international practice. National management of areas beyond the relatively
narrow territorial sea is a relatively recent development and is still evolving.
In recent years, zoning of ocean areas has been getting more attention.¹⁸ The
goal of these efforts is to reduce spillover effects among competing uses that result
in economic and environmental losses to society. This attention is a response to
technological advances that permit greater access to and more intensive use of the
marine environment, including the water column, ocean floor, and subsurface
resources. At the same time, scientific research is developing a more accurate
accounting of baseline conditions in the marine environment and effects of
technologies on these conditions.
Other Issues. Another widely discussed issue is the desire of some to limit
or prohibit offshore energy activities, including extraction and transport. This issue
is highly visible, because of marine damage from oil spills around the world, often
accompanied by birds or animals soaked in oil. During the 1980s and early 1990s,
oil and gas development interests stressed the need to recognize multiple uses of the
marine environment. They expressed concern that attempts to designate national
marine sanctuaries were being used to promote a political agenda directed toward¹⁹
prohibiting oil and gas development in offshore areas.
Several recent proposals to locate wind farms in offshore areas have raised the
same kind of “not in my backyard” (NIMBY) responses that have been voiced for
decades in response to unpopular development (e.g., landfills, prisons, and
transmission towers) in suburban areas. Use conflicts are not new to marine areas,

¹⁸ Garry Russ and Dirk Zeller, “From Mare Liberum to Mare Reservarum,” Marine Policy,
v. 27 (2003): 75-78.
¹⁹ Statement of William P. DuBose, Vice President, National Ocean Industries Association,
Hearing on the Current Status and Future Needs of the National Oceanic and Atmospheric
Administration’s National Marine Sanctuary Program, before the House Merchant Marine
and Fisheries Subcommittees on Oceanography, Great Lakes, and Outer Continental Shelf
Subcommittee and on Fisheries and Wildlife Conservation and the Environment, (Nov. 7,

1991).

and similar responses have been raised to confront proposed offshore energy
development in “frontier” areas where there is little prior history of such activity.
More generally, thinking about future activities in the marine environment raises
questions about how uses should be monitored, whether new categories of use can
be effectively addressed through existing laws and programs (an issue raised by wind
farm opponents, for example), and how public and private interests should be
considered in any decision process.
National Reports
A number of recent national reports have studied and made recommendations
concerning marine conservation and the potential use of MPAs. In particular, the
2003 Pew Oceans Commission Report and the 2004 U.S. Commission on Ocean
Policy Report provide recommendations on ocean policy issues intended for policy
makers. These reports, as well as the 2001 report on MPAs from the National
Research Council, view the current piecemeal approach to marine resource
management as contributing to the decline in marine environmental health. Many
supporters of the MPA concept draw from these reports as they encourage Congress
to replace the current approach with a more systematic and coordinated response.
Many of these supporters have endorsed the Pew Oceans Commission and U.S.
Commission on Ocean Policy recommendations as a starting place for policy
discussions.
The 2001 NRC report on MPAs²⁰ did not make a recommendation about
whether additional legislation might be desirable or whether a new law addressing
MPAs is needed, although it did recognize the fragmented nature of current efforts.
It discussed the costs and benefits of MPAs in comparison to more conventional
management tools, explored the feasibility of implementation, and assessed the
scientific basis and adequacy of techniques for the design of MPAs and marine
reserves. Among its conclusions the report recommended that MPAs can be most
successful if:
^!all stakeholders are enlisted to participate in developing management
plans;
^!effective planning and design are provided; and
^!integral components include regular monitoring, assessment,
enforcement, and community education.
The NRC report endorsed using marine reserves as resource and fishery
management tools in combination with traditional management measures. It asserted
that federal and state agencies need to provide resources, expertise, and coordination
for integrating individual MPAs into a framework to meet coastal and marine
resource management goals established at state, regional, national, or international
levels.

²⁰ National Research Council (NRC), Marine Protected Areas: Tools for Sustaining Ocean
Ecosystems, National Academy Press (Washington DC:2001).

The Pew Oceans Commission report²¹ calls for establishing a system of marine
reserves as an important component of efforts to restore and maintain healthy marine
ecosystems. These reserves would play critical roles in “zoning” areas of the ocean
under sovereign control based on desired patterns and intensities of uses. This report
also recommends establishing regional ocean ecosystems councils and a new
independent federal oceans agency. The Pew Commission viewed reserves as sites
that would transcend federal-state boundaries. It calls on Congress to enact a
mandate to establish such a system and provide the necessary institutional structure
and legal authorities to implement it. It also recommends that federal agencies
should use existing authorities to establish reserves within areas that have already
been designated for protection until such a mandate is enacted.
The U.S. Commission on Ocean Policy²² also endorses MPAs, but its report is
more wide-ranging than the Pew effort, and MPAs play a much smaller role in its
recommendations. The report from the U.S. Commission on Ocean Policy may have
the greatest impact on congressional considerations, since Congress created this
commission in legislation and it reported to Congress and the Administration. The
commission’s recommendations include a reference to MPAs in the fisheries chapter
that discusses coordinated management in federal waters and calls for a uniform
process to designate, design, and monitor MPAs.²³ The commission’s
recommendations also include an indirect reference to MPAs related to pursuing an
ecosystem approach to identify and designate “essential fish habitat” that uses current
efforts to “identify important habitats and locate optimum-sized areas.”
Recent Congressional Action
Currently, the National Marine Sanctuary Program is the closest to providing
a comprehensive approach to using MPAs. Administrative action to establish
national monuments in marine areas is gaining greater attention, but these actions
appear to be opportunistic rather than deliberate movement to a comprehensive
approach. Legislation proposed during the 110^th Congress appears to make
incremental progress in this direction, but not on the scale that most MPA advocates
would prefer.
The 110^th Congress has considered MPAs both directly and indirectly, but not
extensively. The most direct treatment of MPAs is proposed in the Sanctuary
Enhancement Act of 2008, H.R. 6537. Introduced in July 2008, H.R. 6537 would
reauthorize the National Marine Sanctuary Act that was last reauthorized in 2000.
Three related hearings have been held by the House Natural Resources Subcommittee

²¹ Pew Oceans Commission, America’s Living Oceans: Charting a Course for Sea Change,
The Pew Charitable Trusts, Pew Environmental Group (Philadelphia, PA:2003). The Pew
Oceans Commission website and links to related reports may be accessed at
[http://www.pewtrusts.org/ our _work_detail.aspx?id=130].
²² U.S. Commission on Ocean Policy, An Ocean Blueprint for the 21^st Century, Final Report,
(Washington DC:2004).
²³ Recommendations 19-21 and 6-3, respectively. The Oceans Commission website and
links to the final report may be accessed at [http://www.oceancommission.gov/].

on Fisheries, Wildlife, and Oceans. The proposed legislation would modify the
NMSA by:
^!clarifying the findings, purposes, and policies of the act and the
mission of the sanctuary program;
^!requiring an inventory of living and nonliving resources;
^!revising sanctuary designation procedures;
^!clarifying the authority to regulate fishing activities in sanctuaries;
^!broadening enforcement authority of the entire system, including
marine national monuments; and
^!providing authority to include national monuments within the
system.
Among the most important changes would be elimination of constraints on
designating new sanctuaries that were included in the 2000 reauthorization,
clarification of the sanctuary program mission, and integration of national
monuments within the system.
Modification of previously designated national marine sanctuaries is proposed
in H.R. 6204 and S. 2281, for the Thunder Bay National Marine Sanctuary and
Underwater Preserve Boundary Modification Act, and H.R. 1187 and S. 2635, for the
Gulf of the Farallones and Cordell Bank National Marine Sanctuaries Boundary
Modification and Protection Act. The Thunder Bay NMS legislation would expand
sanctuary boundaries to include additional underwater cultural resources
(shipwrecks). For the Gulf of Farallones and Cordell Bank NMSs, proposed
legislation would make adjustments to expand the boundaries of the NMSs. S. 2635
would prohibit certain activities within these sanctuaries, including:
^!the leasing, exploration, development, production, or transporting by
pipeline of minerals or hydrocarbons;
^!the conduct of aquaculture (with exceptions); and
^!the discharge of materials, substances, or introduced species; and
^!cause a harmful change in salinity.
H.R. 1187 would also prohibit oil and gas leasing and permitting, but only regulate
specific activities such as the deposit or release of introduced species and the
alteration of stream and river drainage into the sanctuaries. Both bills would direct
the Secretary of Commerce to complete an interim supplemental plan for each
sanctuary that focuses on management in the areas added by the act and a revised
comprehensive management plan for each of the sanctuaries. S. 2635 also would
require a review of the Farallones NMS to determine whether the added area should
be designated as a new and separate NMS.
Legislation also has been proposed to protect specific areas or to prohibit a
specific activity. H.R. 5864, the Vieques Bioluminescent Bay Conservation Act,
would designate Puerto Mosquito Bay as a national marine sanctuary. S. 3576 and
H.R. 7051, the Georges Bank Preservation Act, would prohibit exploration,

development, or production of oil or natural gas in any marine national monument
or national marine sanctuary or in the fishing grounds of Georges Bank.²⁴
The Coral Reef Conservation Amendments of 2007 (H.R. 1205, S. 1580, and
S. 1583) are examples of proposed legislation that focus on a related topic — coral
reef conservation. All three bills would identify marine protected area management
strategies under the definition of conservation as a method or procedure necessary to
preserve or sustain coral reefs and associated species. H.R. 1205 also would apply
provisions of the National Marine Sanctuary Act to liability for costs and damages
to coral reefs, even when outside national marine sanctuaries.
Congressional consideration of new and more comprehensive approaches to
protect marine areas is likely to pit economic interests, who oppose MPAs because
designation would place limits on the use or extraction of ocean resources, against
environmental and research interests, who would like to see more widespread or
systematic protection of ocean resources. MPA advocates favor resource protection
over revenue-generating activities, and believe that quick congressional action is
needed to prevent further destruction or deterioration of living marine resources.
MPA opponents respond that the benefits of such designations are far from proven,
but limitations on commercial activities are almost certain to be costly. New
industries such as aquaculture and alternative energy may be especially difficult to
establish if environmental interests believe they threaten marine resources. One of
the main challenges for policy makers is to balance the needs for profitable private
commercial activities with public concerns related to environmental quality. It is still
an open question as to whether more extensive use of MPAs will assist in achieving
this balance.

²⁴ Georges Bank, located off the coast of New England, is one of the richest fishing grounds
in the United States.

Appendix: Current Federal Laws and Programs
No current federal laws and programs protect marine areas as comprehensively
as many of the proponents of MPAs envision for this concept. Others, especially
commercial interests, counter that MPAs should be reserved for truly special areas
and that current federal laws are sufficient for this purpose. Regardless, it appears
that most of these laws could play significant roles if a more comprehensive effort
is implemented. This discussion does not include state laws and programs, which
vary widely, and would become important for MPAs that include nearshore areas or
have some interaction with activities in areas under state jurisdiction.
The following laws allow designation of protected areas in the marine
environment. Most apply to coastal sites, but they were enacted for different²⁵
purposes and take different approaches. If Congress chooses to authorize an MPA
system, it might conclude that one or some combination of these programs can
provide the basis for such a system, or it might conclude that it should enact entirely
new authorizing legislation.
National Marine Sanctuaries Act (NMSA). The NMSA (16 U.S.C. §§

1431, et seq.) comes closest to authorizing what many proponents envision as MPAs.

It authorizes NOAA to designate specific sites for comprehensive and coordinated
management and conservation. The broad NMSA mandate allows NOAA to
designate areas to preserve or restore conservation, ecological, aesthetic, or
recreational values of the designated areas. It requires the development and
implementation of management plans, which serve as the basis for prohibiting or
limiting incompatible activities.²⁶
NOAA has designated 13 sanctuaries, ranging in size from less than a square
nautical mile to more than 100,000 square miles. Each site was designated for a
specific reason, ranging from protecting cultural artifacts to protecting entire
ecosystems. At most of these sites, particularly contentious questions when
developing or amending management plans have centered on which activities are
incompatible with the purposes of the designation, and how incompatible activities
will be limited. Since the management plans and regulations have been developed
individually for each sanctuary and each sanctuary was established for a specified
reason, they vary widely in how uses are managed and what uses are permitted. The
Florida Keys Sanctuary is cited as one location where the MPA concept is being
applied. Within this sanctuary, 24 sites amounting to 6% of the total area have been
fully protected where harvesting marine life is greatly restricted. However, this is an
exception, as few of the existing sanctuaries restrict fishing, shipping, or recreation,
although most prohibit oil and gas exploration and development. This has led some

²⁵ For a more detailed review of current federal programs and laws, see National Research
Council, “Chapter 8: Historical Background and Evaluation of Marine Protected Areas in
the United States,” Marine Protected Areas Tools for Sustaining Ocean Ecosystems
(Washington DC: National Academy Press, 2001), pp. 145-173.
²⁶ For a detailed review of the legislative history of the NMSA, see William L. Chandler and
Hannah Gillelan, “The History and Evolution of the National Marine Sanctuaries Act,”
Environmental Law Reporter, no. 34 (2004): 10506-10565.

to characterize sanctuaries as multiple-use areas rather than areas where uses that
may damage the marine environment are prohibited.
Fishing can be regulated in sanctuaries, although this has rarely occurred. In
considering whether to regulate fishing, the NMSA provides the appropriate Regional
Fishery Management Council the opportunity to determine whether sanctuary fishing
regulations are needed and to draft fishing regulations. The Secretary of Commerce
must accept the Council’s proposals or determinations unless they fail to fulfill the
purpose and policies of the Magnuson-Stevens Fishery Conservation and
Management Act (discussed below). Regional Councils have supported only a few
areas that have been closed to all fishing. As sanctuaries revise and update their
management plans, whether and how to limit fishing is likely to receive more
attention. In this setting, some MPA proponents do not view the sanctuary system,
as it currently exists, as an effective approach for fish recovery efforts.
Coastal Zone Management Act (CZMA). The CZMA (16 U.S.C. §§ 1451,
et seq.) established a coastal zone management program and an estuarine sanctuary
program, now called the National Estuarine Research Reserve System, and made 35
coastal and Great Lakes states and territories eligible to participate. The coastal zone
management program provides grants to these states and territories to develop and
implement plans that address several broad categories of development and resource
protection activities in a state’s coastal zone. Incentives to participate also include
a consistency provision that requires federal actions in or affecting the coastal zone
to be consistent with the state’s federally approved plans. These incentives appear
to be sufficient, as only one of the 35 eligible states and territories, Illinois, has not
participated in the national coastal zone management program.
Places included in MPA inventories are concentrated in coastal and nearshore
waters. These areas are among the most productive and diverse marine environments
and are sites of the most concentrated and intensive uses and alterations. Therefore,
protection efforts (including efforts to designate MPAs) also have been concentrated
in these areas. Almost all coastal states have been addressing the pressures in or
affecting state waters for many years, generally using their federally approved and
funded coastal zone programs. A few states emphasize the marine side of their
coastal zone, as management of ocean resources is one of the eight purposes for
which states can receive “enhancement grants” under this program. However, most
state coastal management programs generally concentrate their efforts on the land and
shore side of the coastal interface.
Protecting marine areas can be addressed by states using coastal zone
enhancement grants. These grants are available to participating states and territories
that are successfully implementing programs and wish to do more. These grants are
available for nine program areas, one of which is “planning for the use of ocean
resources.” NOAA reviewed activities under this program for 1992 through 1996,²⁷
and found a majority of states had some level of activity. However, the

²⁷ U.S. Dept. of Commerce, NOAA, Office of Ocean and Coastal Resource Management,
Coastal Programs Division, State Enhancement Grant Assessments and Strategies: Ocean
(continued...)

organization of this study’s findings makes it difficult to determine how designation
and management of protected areas in state waters fit into the coastal zone
management activities of these states.
The National Estuarine Research Reserve System is a component of the federal
coastal zone management program. States identify research reserve sites in state
waters and, after federal approval, manage them. States with research reserves have
integrated them into their coastal management efforts, although the research reserves
do not play identical roles. The 27 National Estuarine Research Reserves that have
been designated were federally approved, in part because they each represent one of
the diverse estuarine ecosystems of the marine coast (including the Great Lakes).
The system is viewed as both providing a laboratory for research and education
programs, and creating a network that permits research for comparing biological or
other characteristics across units of the system. Incompatible uses that would
compromise the value of research reserves, such as more intensive development
along the shore or major navigational improvements in the waters, are controlled or
prohibited. Each research reserve operates under a management plan. The research
reserves range in size from 571 acres to 365,000 acres.
Magnuson-Stevens Fishery Conservation and Management Act
(MSFCMA). The MSFCMA (16 U.S.C. §§ 1801, et seq.) established federal fishery
management authority in a zone extending from the outer boundary of state coastal
waters to 200 miles from the U.S. coastline. In 1976, the Fishery Conservation and²⁸
Management Act established eight Regional Fishery Management Councils to
develop management plans for those fisheries that require active federal
management. The fishery conservation zone was superceded by President Reagan’s
declaration of an Exclusive Economic Zone (EEZ) in March 1983 (Presidential
Proclamation 5030). The EEZ applies to a broad range of resources and uses. In
1996 amendments to the act, Congress authorized the Councils to designate and
manage essential fish habitat. It included the authority to regulate fishing effort up
to and including closing areas to protect significant spawning and rearing habitats.²⁹
Such closures, which are often a response to overfishing, may be of limited duration
or permanent, and they may affect some or all fishing covered by federally approved
fishery management plans. Closures are usually imposed by the National Marine
Fisheries Service (NMFS) on the recommendation of a Regional Fishery
Management Council. Since the overarching purpose of the MSFCMA is to promote
sustainable commercial and recreational use of renewable fishery resources,
permanent and complete area closures remain uncommon.

²⁷ (...continued)
Governance, NOS/OCRM/CPD 990-08,(Washington, DC: Oct. 1999), 63 p.
²⁸ The name was changed to the MFCMA and later to the MSFCMA in recognition of the
contributions of Senators Warren Magnuson and Ted Stevens to federal fisheries
management.
²⁹ Similar closures occur in state coastal waters under the authority of various state laws and
interstate compacts as well as internationally under the authority of negotiated conventions
and agreements.

Implementation of MPAs as an element of fishery management seems to be
gaining interest among the Regional Fishery Management Councils. With the
growing recognition that selective protection of unique habitats can benefit multiple
species, Regional Councils are beginning to consider and create longer-term marine
reserves (for examples, see “Recent Administrative Actions,”) in lieu of temporary
fishery closures for individual species or other gear or quota reductions. Partial
closures, which might limit gear used, amount of fishing effort allowed, or times
when fishing is allowed, are also becoming more common.
For example, the New England Regional Fishery Management Council and
NMFS established closed areas on Georges Bank and adjacent areas off New
England where all fishing is prohibited to foster groundfish recovery. The North
Pacific Fishery Management Council has designated a marine reserve in Southeast
Alaska,³⁰ an Aleutian Islands Habitat Conservation Area, Aleutian Islands Coral
Habitat Protection Areas, Alaska Seamount Habitat Protection Areas, a Bowers
Ridge Habitat Conservation Zone, Gulf of Alaska Coral Habitat Protection Areas,
and Gulf of Alaska Slope Habitat Conservation Areas.³¹
The effectiveness of fishery controls, as measured by changes in fish
populations, like the effectiveness of other MPA controls, has generated controversy
among competing community stakeholders. With requirements in the MSFCMA for
(1) recovery schedules for overfished stocks, (2) harvest of fish at sustainable levels,
and (3) minimal bycatch of fish, birds, turtles, and marine mammals, the
management of U.S. marine fisheries has become significantly more restrictive since
1996. Some critics of MPAs believe that these changes in the MSFCMA reduce the
need for MPAs as a fishery management tool. In 2006, the 109^th Congress
reauthorized the MSFCMA and included provisions to increase protection of deep
sea corals as well as to provide greater emphasis on managing marine ecosystems as
opposed to individual commercially valued species.
The Wilderness Act. This law (16 U.S.C. §1131, et seq.) established the
National Wilderness Preservation System of congressionally designated areas of
federally owned land where many activities are restricted or prohibited to minimize
human alterations. Although the extension of this act’s authority into marine waters
is questioned by those who envision the ocean as common property, marine areas
under federal jurisdiction beyond state boundaries but within 200 miles of the
coastline could be eligible for designation as “wilderness” by Congress, although
none has been designated to date.
Goals of the Wilderness Act are to allow unfettered operation of natural
processes and provide for only those human uses, such as primitive recreational
activities, that do not affect those processes. The act generally prohibits commercial
activities, permanent facilities, and use of motorized equipment or motorboats,
landing of aircraft, unless the use had become established before the area was
designated. However, Congress has also authorized activities that do not conform
with these general prohibitions. For example, the act allows for commercial uses

³⁰ 65 Fed. Reg. 67305 (November 9, 2000).
³¹ 71 Fed. Reg. 36694 (June 28, 2006).

when they are necessary “for realizing the recreational or other wilderness purposes
of the area;” the use of motorboats may be authorized where such use is already
established, subject to “desirable” restrictions.³²
The prospects of establishing “marine wilderness” are being increasingly
explored. Some interests who want the strongest possible protections in designated
marine areas view this law as creating a model for the levels and kinds of protections
that should be placed in MPAs, even if the law itself may not be readily transferred
to marine areas for other reasons.³³ A portion of these interests believe that the
wilderness designation should be a starting point because too many incompatible uses
are still allowed. Others counter that wilderness designations are too restrictive.
Many of the terrestrial wilderness debates have focused on whether the Wilderness
Act’s allowances for recreation, boating, or commercial use will be incompatible
with protections that proponents seek through a wilderness designation.³⁴ If this
concept is considered for marine areas, similar debates can be anticipated.
National Park Service Organic Act. This law (16 U.S.C. §§ 1, 2-4) created
the National Park Service (NPS) to administer units of the National Park System, to
preserve the lands and resources unimpaired, and to foster public use and enjoyment.
Each unit has its own management structure; individual laws creating most of the
units have placed limits on specified incompatible uses. A total of 39 NPS units in
coastal areas have significant marine components. Many of these units are classified
as National Seashores. Many National Park units permit recreational fishing, and a
few even allow commercial fishing.³⁵ The Park Service’s dual mandate of
preservation and public use and enjoyment has resulted in conflict between interest
groups who debate the desirability of providing greater access and visitor facilities
versus higher levels of protection.
National Wildlife Refuge Administration Act. This law (16 U.S.C. §
668dd) establishes the primary purpose of units of the National Wildlife Refuge
System to be the conservation of fish and wildlife and their habitats, and allows other
compatible uses if such uses are determined to be consistent with refuge goals. The
refuges are administered by the Fish and Wildlife Service in the Department of the
Interior. Recreational fishing, hunting, wildlife observation, environmental education
and interpretation, and nature photography are priority public uses and are allowed
on many refuges; and oil and gas extraction occurs on a few units. More than 140
refuges are located along the nation’s coasts, and some include offshore areas.
Important functions for refuges in marine areas are managing ecosystems and

³² See CRS Report RL33827, Wilderness Laws: Permitted and Prohibited Uses, by Ross W.
Gorte.
³³ Marine Wilderness Committee, Report on the Concept of Marine Wilderness, AFS Policy
Statement #18, See [http://www.fisheries.org/afs/docs/policy_18f.pdf].
³⁴ Marine Sciences Research Center, First Regional Marine Wilderness Areas Workshop,
Stony Brook University, (Stony Brook, NY: Nov. 2001), p.40. See [http://www.somas.st
onybrook.edu/news/MWW1/proceedings .pdf].
³⁵ In one of these areas, Glacier Bay National Park and Preserve, Alaska, commercial fishing
is currently being phased-out.

providing habitat for endangered species and migratory birds as well as nursery areas
that support key components of coastal and marine ecosystems. However, many
regard refuge system jurisdiction as limited in the marine environment.³⁶
Antiquities Act of 1906. This law (16 U.S.C. §§ 431-443) allows the
President to proclaim locations of scientific or historical interest as national³⁷
monuments and has been used for several marine areas. Some have argued that the
1906 Antiquities Act should be used to designate protected areas in the marine
environment because it can be used expeditiously. Yet it appears that applying the
Antiquities Act to marine areas will still require “negotiation, education, and
consensus-building” including congressional funding commitments and involvement
of local committees representing interested and affected parties.³⁸ Use of the
Antiquities Act would likely raise the same type of objections that have been voiced
over other unilateral actions without the opportunity for public input and debate.³⁹
In the Papah~naumoku~kea Marine National Monument (Northwestern Hawaiian
Islands Marine Monument) case, it is likely designation was made easier because the
public had already been involved during earlier consideration of the area as a national
marine sanctuary.⁴⁰
Northwest Straits (NS) Marine Conservation Initiative Act. This law
(Title IV of P.L. 105-384) established the Northwest Straits Advisory Commission,
and authorized the Secretary of Commerce to provide assistance to be used in
accordance with the Northwest Straits Citizen’s Advisory Commission Report of
August 20, 1998. The NS are the waters of northern Puget Sound and southern
Georgia Strait in Washington State. The priorities of the Commission are to: (1)
collect marine resources data in the NS; (2) coordinate federal, state, and local marine
resource protection and restoration activities in the NS; and (3) carry out other
activities identified in the Report as important to such protection and restoration.
Under this authority, seven county Marine Resource Committees are advising the
Commission in carrying out these priorities. The 2004 program evaluation found that
the initiative has generated local support of projects and conservation, increased
voluntary compliance with conservation goals, brought people together to work
cooperatively and exchange innovative ideas on issues, and created a model of
marine governance that may be adapted to other regions.⁴¹

³⁶ A Department of Justice report of September 15, 2000, by Randolph D. Moss, Assistant
Attorney General, concluded: “We are unconvinced, however, that the President would have
the authority to establish a national wildlife refuge in either the territorial sea or the EEZ....”
³⁷ 16 U.S.C. §§ 431-433.
³⁸ Jeff Brax, “Zoning the Ocean: Using the National Marine Sanctuaries Act and the
Antiquities Act to Establish Marine Protection Areas and Marine Reserves in America,”
Ecology Law Quarterly, v. 29 (2002): 71-129.
³⁹ See CRS Report RS20902, National Monument Issues, by Carol Hardy Vincent.
⁴⁰ The proclamation establishing the Papah~naumoku~kea Marine National Monument
can be found at [http://www.whitehouse.gov/news/releases/2006/06/print/20060615-18.ht
ml].
⁴¹ See [http://www.nwstraits.org/PageID/181/default.aspx].

Other Protection Efforts. Many other federal laws affect the quality of the
marine environment by regulating coastal and offshore activities. These laws
typically set minimum environmental quality standards or protect certain elements
of the marine environment rather than designate areas for use or protection.
Particularly noteworthy laws in this group include the Endangered Species Act, the
Clean Water Act, and the Marine Mammal Protection Act.
Certain offshore areas in federal waters were protected specifically from oil and
gas development activities for over two decades. Starting with the FY1982 Interior
appropriations act (P.L. 97-100), Congress annually prohibited these activities in
certain areas, including waters off New England, the Mid-Atlantic states, portions of
Alaska and California, the Pacific Northwest, and the Eastern Gulf of Mexico. In

1990, President Bush issued a directive limiting Outer Continental Shelf (OCS)

activities to federal waters off Texas, Louisiana, Alabama, and portions of Alaska.
In 1998, President Clinton extended this moratorium to OCS activities in other areas
through 2012. The 109^th Congress enacted the Gulf of Mexico Energy Security Act
of 2006 (Division C, Title I, of P.L. 109-432), which opened up a portion of the
Eastern Gulf of Mexico that had previously been closed. On July 14, 2008, President
Bush lifted the executive ban on OCS activities. Congress then allowed the ban on
drilling in areas of the OCS to expire by not including the moratorium in the
Consolidated Security, Disaster Assistance, and Continuing Appropriations Act,

2009 (P.L. 110-329) that was signed by the President on September 30, 2008.⁴²

In addition to the federal laws with authority over MPA designation and
management, state and local laws as well as numerous international agreements and
conventions have marine protection components. According to the MPA Center
inventory, nearly 1,300 MPAs are managed by states and territories.

⁴² See CRS Report RL33493, Outer Continental Shelf: Debate Over Oil and Gas Leasing
and Revenue Sharing, by Mark Humphries.