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Water Log 17:1

John A. Duff, J.D., LL.M. and Rick Brownlow, 2L

Congress enacted Title III of the Marine Protection Research and Sanctuaries Act ("Sanctuaries Act") in 1972 to protect marine sanctuaries that, "possess conservation, recreational, ecological, historical, research, educational, or esthetic qualities which give them special significance."⁽¹⁾

National Marine Sanctuaries can be created in one of two ways. The Secretary of Commerce may designate sanctuaries pursuant to the Sanctuaries Act.⁽²⁾ Alternatively, Congress may directly designate a sanctuary. In January 1976, the Secretary of Commerce designated the Monitor National Marine Sanctuary to protect the historic Civil War ironclad USS Monitor.⁽³⁾ Since then sanctuaries have been designated in areas ranging from the Gulf of Mexico to Hawaii to Washington State to New England. These sanctuaries primarily protect marine resources such as coral reefs and sea life.

Once an area becomes a National Marine Sanctuary it is illegal to remove, destroy, or injure sanctuary resources.⁽⁴⁾ Since its original enactment, the Sanctuaries Act has metamorphosed through a series of statutory amendments, agency regulations, and court decisions to become an increasing force in protecting marine sites from pollution and other forms of environmental degradation. The Act gives the Secretary of Commerce the authority to manage marine sanctuaries and to specify the particular regulatory requirements for each individual area.⁽⁵⁾ The Act had little impact in its first five years. Two sites, the U.S.S. Monitor and a stretch of coral reef off the coast of Key Largo, were designated, with little public comment or ceremony.⁽⁶⁾ Funding was not authorized until 1977.⁽⁷⁾ The Sanctuaries Act began to acquire its present day character as a result of President Carter's July 1977 Environmental Message, in which he directed the Department of Commerce to, "identify possible sanctuaries in areas where development appears imminent."⁽⁸⁾ This statement set the tone for a program emphasizing preservation rather than accommodating industrial use. With funding and a mandate from the President, four new sanctuaries with regulations prohibiting many industrial uses, were designated by 1981: Channel Islands⁽⁹⁾, Gulf of Farallones⁽¹⁰⁾, Gray's Reef⁽¹¹⁾, and Looe Key.⁽¹²⁾

Congress amended the Act in 1988 to grant the Secretary of Commerce the authority to take specific enforcement actions in addressing threats to marine sanctuaries;⁽¹³⁾ and established liability standards for acts polluting or otherwise harming a sanctuary.⁽¹⁴⁾

The 1992 reauthorization of the Sanctuaries Act enhanced the scope of the protective measures of the Act by granting new powers to protect sanctuaries from activities outside a sanctuary which might "enter and injure" a site.⁽¹⁵⁾

Early enforcement of the Sanctuaries Act focused on the review, selection and designation of sanctuary sites and the implementation of regulations governing those sites. Recently, case law has developed assessing large damage awards against violators of the regulations. The courts have been quick to find that the regulations are strict in their assessment of liability. On March 13, 1993 the M/V Beholden, a 147 foot Grenadian flagged freighter, ran aground on the Western Sambo Reef in the Florida Keys. The grounding damaged over one thousand square meters of live coral and 133 square meters of established reef framework. The court, considering the question for the first time, reviewed the Act's liability provisions and held that the Sanctuaries Act imposed strict liability.⁽¹⁶⁾

One Sanctuary that has attracted much attention in recent years is the Florida Keys National Marine Sanctuary. The Sanctuary was designated by President Bush in 1990,⁽¹⁷⁾ with the Final Implementation Plan for the Sanctuary being approved this past Winter.⁽¹⁸⁾ The Keys Sanctuary ecosystem includes a number of habitats that are an "integral link to the reef and the creatures that reside there."⁽¹⁹⁾ These ecosystems include shallow sea grass beds and mangrove roots which serve as nurseries for young fish and shellfish⁽²⁰⁾ In addition, the Sanctuary's mangrove islands constitute habitat for wading birds, osprey, and even the American bald eagle.⁽²¹⁾ Much of the attention focused on this Sanctuary results from actions taken against ships that have run aground on the Sanctuary's reef, the third largest barrier reef system in the world (see accompanying articles).

A second Sanctuary in the Gulf of Mexico is the Flower Garden Banks National Marine Sanctuary. Legislation designating the Sanctuary was signed by President Bush on March 10, 1992,⁽²²⁾ the Sanctuary is the northernmost coral reef in the Gulf. It is situated about 120 miles southeast of Galveston, Texas.⁽²³⁾ The Flower Garden Banks formed on the twin peaks of submerged mountains that rise to within fifty feet of the surface.⁽²⁴⁾ The reef is home to 80 species of algae, 250 species of invertebrates and 175 species of fish.⁽²⁵⁾

1. 16 U.S.C. § 1431(a)(2).

2. 16 U.S.C. § 1433.

3. 40 Fed. Reg. 21,706 (1975).

4. 16 U.S.C. § 1436.

5. 16 U.S.C. § 1433.

6. 40 Fed. Reg. 21,706 (1975)(designation of one-square mile area around the remains of the Monitor, a civil war ironclad sunk in battle); 41 Fed. Reg. 2378 (1976)(100 square mile area of coral reef along Key Largo, Florida).

7. Pub. L. 95-153 (Nov. 4, 1977).

8. The Environment-The President's Message to Congress, 7 Envt'l L. Rep. (ELI) 50057, 50066 (1977).

9. Designated pursuant to NMSA (Title III of the MPRSA) 16 U.S.C. §§ 1431-34. See 45 FR 65203, Oct. 2, 1980.

10. Designated pursuant to NMSA (Title III of the MPRSA) 16 U.S.C. §§ 1431-34. See 46 FR 7939, Jan. 26, 1981.

11. Designated pursuant to NMSA (Title III of the MPRSA) 16 U.S.C. §§ 1431-34. See 46 FR 7944 Jan. 26, 1981.

12. Designated pursuant to NMSA (Title III of the MPRSA) 16 U.S.C. §§ 1431-34. See 46 FR 7949, Jan. 26, 1981.

13. 16 U.S.C. § 1437.

14. 16 U.S.C. § 1443.

15. 16 U.S.C. § 1436.

16. Beholden, 856 F.Supp. at 670. The Court held that since the Act's liability provisions had been modeled on the provisions of the Clean Water Act and CERCLA (both of which are held to impose strict liability) that the Sanctuaries Act too, imposed strict liability. Id.

17. Florida Keys National Marine Sanctuary Act, Pub. L. No. 101-605, 104 Stat. 3089 (1990)

18. Florida Keys National Marine Sanctuary Final Regulations, 62 F.R. 4578, (January 30, 1997).

19. Marine Sanctuary, Vol. 3 No. 1, p. 20. (Spring/Summer 1995)

20. Id.

21. Id.

22. Flower Garden Banks National Marine Sanctuary; Gambling Aboard U.S. -- Cruise Vessels; Maritime Boundary Agreement, P.L. 102-251, 106 Stat. 60 (1992).

23. San Antonio Light, 3/10/92 B3.

24. Id.

25. Id.

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