Law and Policy Digest Volume 7, Number 1  Print Friendly version (page 2) July 2008

I.        ALTENATIVE ENERGY
II.       AQUACULTURE
III.      CLIMATE CHANGE
IV.     COASTAL HAZARDS

V.      COASTAL MANAGEMENT
VI.      CORAL REEFS
VII.     ECOSYSTEM MANAGEMENT
VIII.    ENDANGERED SPECIES

IX.      ENVIRONMENTAL LAW
X.       FISHERIES MANAGEMENT  
XI.      LAW OF THE SEA
XII.     MARINE PROTECTED AREAS
XIII.    MARINE SECURITY  
XIV.   MARITIME BOUNDARIES
XV.    OCEAN GOVERNANCE
XVI.    POLLUTION
XVII.   SHIPPING
XVIII.  SUSTAINABILITY
XIX.    WATER LAW
XX.     WETLANDS

V. COASTAL MANAGEMENT 

Busenberg, George J. “Citizen Participation and Collaborative Environmental Management in the Marine Oil Trade of Coastal Alaska.” 35 Coastal Management 239 – 253 (2007). This study compares the contributions to policy change made by two Regional Citizens’ Advisory Councils that participate in the environmental management of the marine oil trade in coastal regions of Alaska. Both councils are remarkably well-funded and long-enduring examples of citizen participation in environmental policy. This study finds that both councils have applied their substantial funding resources to make significant contributions to policy change (policy contributions) in the marine oil trade of coastal Alaska. This study also finds that both councils have greatly magnified their policy contributions through collaborative efforts with many other organizations active in the marine oil trade of Alaska. Therefore, the overall policy contributions of the councils result from the joint application of council resources and collaborative efforts.
Abstract courtesy of Coastal Management 

Fletcher, Stephen, and Hance D. Smith. “Geography and Coastal Management.” 35 Coastal Management 419 – 427 (2007).
This article presents an overview of the relationship between geography and coastal management. It explores the nature of geography as well as the geographical underpinnings of key notions within coastal management, in particular, “coast,” “conflict,” and “integration.” The article considers the integrated coastal management process and tracks the influence of geography on the development of the discipline’s theory and practice, as well as its academic infrastructure. The article concludes that although geography both underpins and offers useful insights into coastal management, a challenge remains to explore in greater depth the benefits of applied geographical approaches to the management of coasts.
Abstract courtesy of Coastal Management

Fletcher, Stephen, and Jonathan Potts. “Ocean Citizenship:  An Emergent Geo­graph­ical Concept.” 35 Coastal Management 511 – 524 (2007).
Ocean citizenship describes a relationship between our everyday lives and the health of the coastal and marine environment. Through our everyday lives we affect, and are affected by, the marine and coastal environment in numerous ways. As such, individuals have a responsibility to make informed lifestyle choices to minimize this impact. In doing so, the actions of individuals can contribute to the amelioration of large-scale and seemingly insurmountable geographical problems. This article outlines the concept of ocean citizenship within the context of the public understanding of marine environmental issues. The article draws heavily on the experience of the National Maritime Museum as an important contributor to the development of ocean citizenship in the United Kingdom. Specifically, the Planet Ocean initiative will be examined, in which the Museum has adopted a multimodal approach to public engagement through exhibitions, educational resources, and specific research publications. The article concludes by highlighting the importance of geography in the development and sustainability of ocean citizenship.
Abstract courtesy of Coastal Management

Gurran, Nicole, et. al. “Governance Responses to Rapid Growth in Environmentally Sensitive Areas of Coastal Australia.” 35 Coastal Management 445 – 465 (2007).
The twin forces of rising affluence and population are altering coastal communities around the world. High amenity, environmentally sensitive areas—particularly attractive, non-metropolitan coastal environments—are witnessing a tidal wave of in migration from former urbanites. As a result, these communities are struggling to accommodate growing numbers of people with urban tastes and rural dreams in areas with governance structures and physical infrastructure designed for occasional tourists. This article looks at how governance frameworks in coastal Australia respond to the profound environmental, social, and cultural implications of this process. Gurran and coauthors offer a typology of non-metropolitan coastal growth settings—from exurban contexts to isolated coastal hamlets—and identify the main environmental, social, economic, and governance issues they face. The authors then outline the policy and legislative framework governing coastal areas in Australia and show how this framework is interpreted at the local level through an analysis of five local plans covering different coastal settings.
Abstract courtesy of Coastal Management

Hodge, Michelle, and David Johnson. “Constraint Mapping as a Means of Further Refining Saltmarsh Re-Creation Opportunities for the UK Solent Region.” 35 Coastal Management 483 – 498 (2007).
Based on geomorphological criteria, the Coastal Habitat Management Plan (CHaMP) for the Solent identified some 4,800 hectares of land potentially suitable for the creation of intertidal habitat, principally saltmarsh, through the use of managed realignment. Using “constraint mapping,” this study set out to illustrate that limitations to habitat re-creation through inundation are not merely geomorphological in nature. Indeed, a broad range of social, political, legal, technical, and economic constraints exist and must be evaluated in conjunction with physical parameters if the objectives of the European Birds and Habitats Directives are to be met, and so that future coastal defense policies ensure maintenance of the “favorable conservation status” of designated sites. A numerical filter system has been used to re-evaluate individual sites to establish “realistic” opportunities for compensatory saltmarsh creation in the Solent. As a result of taking into account wider socioeconomic constraints, it is clear that fewer areas are available for habitat creation purposes than were initially identified in the Solent CHaMP study.
Abstract courtesy of Coastal Management

Jude, S.R. et. al. “The Development of a Visualization Methodology for Integrated Coastal Management.” 35 Coastal Management 525 – 544 (2007).
Coastal management information is frequently communicated to stakeholders and the public through complicated management documents and engineering plans. With the recognition that public involvement in coastal decision-making processes should be widened have come calls to develop new techniques to communicate complicated coastal information. Using Virtual Reality Geographical Information Systems and visualization packages, such information may be presented using formats more suitable for public consultation and information dissemination exercises than those currently employed. Using a site on the north Norfolk coast of England, an integrated Geographical Information Systems based methodology is presented that allows the visualization of proposed coastal management interventions. Visualizations have been produced that can be published in traditional paper-based management documents, or electronically. The different visualizations are compared and the technical issues surrounding their use discussed. It is argued that the methodology has clear advantages over traditional communication methods, although further research is necessary to determine how it may be practically employed by coastal managers.
Abstract courtesy of Coastal Management

McFadden, Loraine. “Governing Coastal Spaces:  The Case of Disappearing Science in Integrated Coastal Zone Management.” 35 Coastal Management 429 – 443 (2007).
Scientific knowledge is central to “good” governance of coastal spaces: developing methods through which the complexities of the coastal zone can be understood by stakeholders to improve the sustainable management of coastal systems. Enhancing our knowledge of the range of processes that shape coastal spaces and define the total behavioural environment of the system remains a primary challenge for the coastal research community. However, this article raises the argument that current approaches to Integrated Coastal Zone Management (ICZM)—the preferred governing framework for the coastal environment, do not give sufficient emphasis to this fundamental need. Improving the basic scientific knowledge that underpins policymaking at the coast is argued to be urgently needed. Issues such as that of developing a communality of the purpose and approach between stakeholders within the coastal zone (through conflict resolution and access to information, for example) seem to claim the rights of the integrated management research agenda. However, the very nature of ICZM as “worthwhile coastal management” requires that integrated management represents more than a governing framework. Successful integration in coastal management must also be underpinned by knowledge of the integrated behavior of the system. Science has an increasingly marginalized position within ICZM and as a result geographers, contributing knowledge of the patterns and processes of the human and environmental landscapes, are also becoming a disappearing breed in integrated coastal management.
Abstract courtesy of Coastal Management

Melnick, Robert S. “Dredging: Making Waves for Commerce or Environmental Destruction.” 19 Villanova Environmental Law Journal 145 – 168 (2008).
Melnick discusses the environmental impact and economic benefits of dredging. He notes the obstacles faced by the United States Corps of Engineers in making the environment a priority during dredging activities. The article includes an overview of current dredging regulations and explains who has authority when a dredging project is begun and who institutes guidelines for dredging. Melnick then examines the history of dredging and the procedural framework under the National Environmental Policy Act (NEPA), focusing on the New York-New Jersey Port. He also looks at the hindrances for the Corps and the public when dealing with dredging and dredged material. Finally, he analyzes dredging under the current regulatory structure. 

Milligan, Jessica. “Governance for Sustainable Coastal Futures.” 35 Coastal Man­agement 499 – 509 (2007).
The mobile nature of soft coasts means that coastal communities face uncertainty in their property values and peace of mind when the existing coastal defense is lowered or removed. The acceptance by the U.K. government that coastal realignment in areas of low population density and limited ecological value is unavoidable means that the current state of affairs, where coastal residents have broadly come to assume that they will be defended if they make enough fuss, cannot continue. The government is currently unwilling to confront this consternation and continues to refuse to pay compensation for lost property value. This is creating an outcry over loss of fairness of treatment. This dispute raises important questions of governance for coastal change. This participatory research project worked closely with English Nature, North Norfolk District Council, local residents associations, the Environment Agency, and the Department for Environment, Food and Rural Affairs. What emerged in the analysis were unresolved tensions between national strategic frameworks, emerging planning arrangements, changing economic assessments, and the desirability of delivering, through a number of public and voluntary agencies, local flexibility in participation and in coastal design. This article reports on the research process, the challenges for coastal governance, and the scope for creative partnerships between science, planning, policy delivery, and public acceptance.
Abstract courtesy of Coastal Management

Ogburn, Damian M. “The Disappearance of Oyster Reefs from Eastern Australian Estuaries–Impact of Colonial Settlement or Mudworm Invasion?” 35 Coastal Management 271 – 287 (2007).
Oysters have been harvested on the east coast of Australia for many thousands of years. Coastal Aboriginal communities used the extensive estuarine oyster resource and may have farmed oysters by establishing shell cultch beds in shallow areas of estuaries. The British colonization of Australia commenced in 1788 and oysters were initially used for food and production of lime. Concerns about unsustainable exploitation led to introduction of legislation that directed the oyster industry to aquaculture in 1884. Translocation of oyster stock for fattening, from New Zealand to Australian east coast estuaries, was encouraged. Here evidence is presented that this activity resulted in “mudworm disease” appearing in oyster farming estuaries on the Australian east coast between 1880 and 1900. The pandemic permanently destroyed natural sub-tidal oyster reefs and forced the oyster industry to adopt avoidance farming techniques including intertidal farming to cope with mudworm.
Abstract courtesy of Coastal Management

Klein, Christine A.  “The New Nuisance: An Antidote to Wetland Loss, Sprawl, and Global Warming.”  48 Boston College Law Review 1155 – 1235 (2007).
Klein shows how the Supreme Court’s Lucas v. South Carolina Coastal Council decision impacted regulations pertaining to wetland filling, development, and the emission of greenhouse gases. In this decision, the Court established a new defense, which the article refers to as the nuisance doctrine, of governmental liability for regulations that prohibit all economically beneficial use of land. Klein also explains how the concept of nuisance has evolved and has taken on new substance.

Samonte-Tan, Giselle. “Economic Valuation of Coastal and Marine Resources:  Bohol Marine Triangle, Phillipines.” 35 Coastal Management 319 – 338 (2007).
This article provides results on the net benefits generated from the natural resources in the Bohol Marine Triangle (BMT) in the Philippines. The BMT spans over 112,000 ha and its coastal ecosystems are rich in biodiversity and provide economic opportunities to the coastal communities. With a 10% discount rate, the accumulated total net benefits for the BMT resources over a 10-year period is US$11.54 million. Tourism and the municipal fisheries are the most important direct use values of the coastal and marine resources of the BMT accounting for 44% and 39% of the total net benefits. Annual revenues attributed to ecosystems were as follows: coral reefs, US$1.26 million; beach/intertidal area, US$1.12 million; marine waters, US$646,501; mangrove, US$239,561; and seagrass, US$105,990. The large market values indicate the dependence of the local community on the BMT coastal and marine resources. In the same way, non-market values show the important life-support functions of coastal and marine ecosystems. The net benefits reflect the magnitude of potential losses due to improper management of coastal and marine resources in the BMT. This valuation highlights the importance of the coastal services to the BMT economy and draws attention to the benefits the local stakeholders derive from BMT coastal resources. Policy measures can now take into account these values to justify a sufficient investment in coastal management efforts to sustain the flow of coastal services in the interest of current and future generations.
Abstract courtesy of Coastal Management

VI. CORAL REEFS

Craig, Robin Kundis. “Coral Reefs, Fishing, and Tourism: Tensions in U.S. Ocean Law and Policy Reform.” 27 Stanford Environmental Law Journal 3 – 41 (2008).
In the United States, seven states and territorial jurisdictions have coral reefs. Reef-based coastal tourism and recreation provide significant economic benefits to the United States. Craig advocates the increased use of marine protected areas to protect coral reef ecosystems. The article examines recent United States law and policy developments regarding coral reefs and suggests that modification of federal laws is necessary to protect coral reefs in order to promote and sustain coral reef tourism. Specifically, Craig notes that the National Marine Sanctuary Act has been inadequate in protecting United States coral reefs and suggests the necessary improvements.         

VII. ECOSYSTEM MANAGEMENT
Paeffgen, Matthew L. “A Ringmaster for the Circus:  Using Interstate Compacts to Create a Comprehensive Program to Restore the Chesapeake Bay.” 37 Environmental Law Reporter 10888 – 10896 (2007).
Paeffgen proposes an interstate compact to improve efforts to protect and restore the Chesapeake Bay. The article describes the state of the Bay. Paeffgen explores the use of the federal common law of interstate nuisance as a remedy for interstate pollution, concluding that that option for protecting the bay has been foreclosed by judicial decisions. He shows how interstate compacts have been used to address environmental issues, including current compacts in the Chesapeake Bay watershed. Finally, he proposes a framework for a new interstate compact. 

Fischman, Robert L., and Angela M. King.  “Savings Clauses and Trends in Natural Resources Federalism.” 32 William and Mary Environmental Law and Policy Review 129 – 168 (2007).State cooperation in the management of water and wildlife is vital for achieving most federal objectives regarding those resources. Resource management federalism involves site-specific variation and discretionary disparities. Fischman and King build on prior work exploring federalism in natural resources law to understand how courts interpret congressional directives on the states’ role in resource management.  

Hicks, Gregory A.  “Managing State Trust Lands for Ecosystem Health: The Case of Washington State’s Range and Agricultural Lands.”  14 Hastings West-Northwest Journal of Environmental Law & Policy 1019 – 1055 (2008)
In this second article of a two-article series, Hicks focuses on the recently adopted state land management policies which are intended to restore ecosystem health and wildlife habitat on the interior uplands of Washington State’s Columbia Plain. He also describes the process of adjusting management practices for state trust lands to include habitat and ecosystem health.

Hicks, Gregory A. “Protecting and Promoting Wildlife and Habitat on State and Private Land in Washington’s Arid Interior.”  14 Hastings West-Northwest Journal of Environmental Law and Policy 781 – 828 (2008).
This article is the first of a two-article series.  Hicks focuses on the habitat work being conducted under the Washington Department of Fish and Wildlife’s Upland Wildlife Restoration Program (UWRP).  The UWRP is chiefly concerned with private lands and state lands acquired specifically to restore habitat values on farms.  The author describes current efforts in the interior uplands of Washington State’s Columbia Plain to restore and protect upland wildlife habitat and wildlife species in an agricultural and range landscape.  Hicks also depicts the interaction between the landscapes, land owners, and the program design or state-sponsored land habitat projects on farmlands and rangelands in Washington’s arid interior.

Kay, Jane. “Bay in Peril: System Out of Kilter.” 14 Hastings West-Northwest Journal of Environmental Law and Policy 171 – 176 (2008).
Kay looks at the decline of several species of fish in the San Francisco Bay, including the king salmon and Chinook salmon. She notes that although several factors have contributed to the decline, the diversion of water has remained the underlying factor in the species’ decline. Kay examines the impact of other factors, such as hunting, toxic sewage and waste, and the dumping of dredge spoils. She concludes with the necessary steps that must be taken to stop the decline of these species. 

Owen, Dave.  “Law, Environmental Dynamism, Reliability: The Rise and Fall of CALFED.”   37 Environmental Law 1145 – 1215 (2007).
Owen explores the failure of management schemes for scarce, protected, and economically valuable resources. He looks at certain aspects of the “CALFED” program, a comprehensive water management program for the Bay-Delta estuary in California’s Central Valley, to show how conceptual understandings have contributed to the failure of the program. Owen proposes an alternative conceptual framework for the improved management of the Bay-Delta region and elsewhere.

Pollak, Daniel. “S.D. Warren and the Erosion of Federal Preeminence in Hydropower Regulation.”  34 Ecology Law Quarterly 763 – 800 (2007). 
The Supreme Court’s ruling in S.D. Warren v. Maine Board of Environmental Protection affirms that releases of water from hydroelectric dams constitute a “discharge” under the Clean Water Act (CWA). This means that hydropower relicensing will trigger § 401 of the CWA, requiring federal licensees to obtain state certifications that their operations will comply with state water quality standards. Pollak argues that under § 401, the state role should not be limited to its traditional review. Instead, Pollak contends that adaptive management, with its emphasis on long-term monitoring, contingency planning, and responsiveness to new information, is better suited for river ecosystems.  

Stone, Jason. “The Law of Ecosystem Restoration: National Policy Implications of the Clark Fork River Basin Natural Resource Damage Program.” 28 Public Land and Resources Law Review 1 – 20 (2007).
Stone gives an overview of the 30th Annual Public Land Law Conference, which was themed “The Law of Ecosystem Restoration: National Policy Implications of the Clark Fork River Basin National Resource Damage Program.” The article is a summary of the themes, topics, and discussions at the conference. The overview provides a summary of the history of natural resource damage (NRD) programs. Stone explains the policy and laws behind resource damage programs and looks at the national trends and future for natural resource damage programs. The article contains an extensive analysis of the Clark Fork River Basin NRD program, including its litigation history. 

VIII. ENDANGERED SPECIES

Benson, Reed D. “Dams, Duties, and Discretion:  Bureau of Reclamation Water Project Operations and the Endangered Species Act.” 33 Columbia Journal of Environmental Law 1 – 55 (2008).  
Benson examines the applicability of section 7(a)(2) of the Endangered Species Act (ESA), which requires federal agencies to ensure their actions do not jeopardize the continued existence of any endangered or threatened species, to the U.S. Bureau of Reclamation’s (USBR) projects. The projects principally involve operation of dams to supply water for a variety of purposes. Specifically, Benson looks at the impact of the Supreme Court’s decision in National Association of Home Builders v. Defenders of Wildlife on such decisions.

Camacho, Alejandro E. “Can Regulation Evolve? Lessons from a Study in Maladaptive Management.” 55 UCLA Law Review 293 – 358 (2007).
Using data from recent scientific studies, interviews and surveys of agency officials, newspaper reports, and unpublished biological databases, Camacho provides a review of the Habitat Conservation Plan (HCP) of the Endangered Species Act (ESA). He concludes that the program, although pioneering, is ultimately defective. The article provides instances in which the HCP program has allowed developers and agencies to bypass ESA regulations. 

Fitzgerald, Edward. “Delisting Wolves: Are the Western Great Lake States Ready?” 37 Environmental Law Reporter 10863 – 10872 (2007).
Fitzgerald explores the delisting of the gray wolves in the Western Great Lakes region. The article explains the history of the gray wolf protection and the development of wolf management plans in the region. The author analyzes plans in Michigan, Minnesota, and Wisconsin, and points out the challenges they may face. 

Fitzgerald, Edward A. “Dysfunctional Downlisting Defeated:  Defenders of Wildlife v. Secretary, U.S. Department of the Interior.” 34 Boston College Environmental Affairs Law Review 37 – 106 (2008).
Fitzgerald explains why he believes a federal district court, in Defenders of Wildlife v. Secretary, U.S. Department of the Interior, correctly invalidated the Department of the Interior’s (DOI) downgrading of the gray wolf. He discusses how the DOI’s interpretation of portions of the Endangered Species Act was inconsistent with the Act’s text, intent, and purpose. The article gives an overview of the ESA and explains the history of the gray wolf in the United States. Fitzgerald also analyzes the DOI’s implementation of its distinct population segment (DPS) policy. He emphasizes the importance of recovery plans. The author concludes with a look at current and pending regulatory changes concerning the gray wolf since Defenders of Wildlife.

Gibel, Lieutenant Commander Keith S.  “Defined by the Law of the Sea: ‘High Seas’ in the Marine Mammal Protection Act and the Endangered Species Act.”  54 Naval Law Review 1 – 49 (2007).
The Marine Mammal Protection Act (MMPA) protects marine mammals on the “high seas,” and the Endangered Species Act (ESA) protects endangered species on the “high seas;” however, the term “high seas” is not defined and has caused much confusion and litigation.  The controversy has centered on an area beyond the jurisdiction of the United States, between foreign “territorial seas” and the “high seas,” which is referred to as the “foreign exclusive economic zone (FEEZ).”  Gibel discusses whether any American conduct in a FEEZ is subject to the MMPA and the ESA.

University of Mississippi