a bold new ocean agenda

8/14/2019 A Bold New Ocean Agenda

1/839 ELR 10012 ENVIRONMENTAL LAW REPORTER 1-200939 ELR 10012 ENVIRONMENTAL LAW REPORTER 1-2009

A Bold New Ocean

Agenda:Recommendationsfor OceanGovernance, EnergyPolicy, and Health

by Karen Hansen, Kathryn Mengerink,and Michael Sutton

Kathryn Mengerink is Director o the Ocean Program

at the Environmental Law Institute Karen Hansen is aprincipal with the law frm, Beveridge & Diamond, PC

Michael Sutton directs the Center or the Future o the

Oceans at the Monterey Bay Aquarium, where he serves asVice President The views presented are the authors own

and do not represent the views o their organizations

Editors Summary:

The United States has more ocean area under its juris-diction than any other country The new Administration,

thereore, has every reason to place ocean concerns andopportunities high on its environmental and economicagendas By reorming national ocean governance,ensuring that changes in energy policy consider oceanimpacts, restoring US leadership in marine research,and launching a national ocean health initiative, thenew Administration will allow us to better saeguardthe marine environment as well as US economic andnational security

O

ceans cover 71% o our planet They inuence ourclimate and harbor enormous biodiversity In address-ing threats such as global warming, overexploitation o

resources, and extinction o species, the oceans will be a criti-cal area o national ocus and a platorm or providing interna-tional leadership

While many Americans believe that oil spills constitute thesingle greatest hazard to our oceans, in reality marine ecosys-tems and resources ace a variety o serious but oten unseenthreats that include climate change, unsustainable anddestructive fshing, various kinds o pollution, traditional andemerging industrial and commercial activities, and coastaldevelopment pressures For example, scientists recentlywarned that i present trends o overexploitation and loss obiodiversity continue, commercial wild-capture fsheries maybe completely exhausted by 20481 On the climate ront, highlevels o carbon dioxide in the atmosphere are undamentallychanging sea water chemistry, resulting in ocean acidifcationOcean warming is directly impacting marine lie and coastalcommunitiesrom sea level rise and increased storm inten-sity to habitat shits and receding coastlines Climate changeis also disrupting ood chains or many marine organismsrom fsh to seabirds to humans2 Today more than 40% o theworlds oceans are heavily aected by human activities andew i any areas remain untouched, according to a global-scalestudy o human inuence on marine ecosystems3

The United States has more ocean area under its jurisdic-tion than any other country Thus, the new Administration

has every reason to place ocean concerns and opportunitieshigh on its environmental and economic agendas But opinionresearch suggests that oceans are relatively low on the publicradar and, thus, the political playbill The public largely ailsto recognize that the health o the human population is inextri-cably linked to the well-being o our oceans A healthy oceanalso provides or our economic needs; approximately 50% oour gross domestic product (GDP) is linked to coastal com-munities and that ocean-dependent activities contribute morethan twice as much to our economy as our national agricultureindustry Yet we neglect ocean health because these connec-tions are largely unrecognized or underappreciated

President-elect Barack Obama and the new Congress mus

make oceans a higher national priority We recommend ourmajor areas in need o attention to saeguard the marine envi-ronment as well as US economic and national security: (1)reorm national ocean governance; (2) ensure that changes in

1 In a study published in Science, an international group o ecologists and economists show that the loss o biodiversity is prooundly reducing the oceans abilityto produce seaood, resist diseases, flter pollutants, and rebound rom stressessuch as overfshing and climate change See Boris Worm et al,Impacts o Biodi

versity Loss on Ocean Ecosystem Services, 314 SCiEnCE 787-90 (2006)2 CommuniCAtion pArtnErShipFor SCiEnCEoFthE SEA, FACtS: ClimAtE ChAngE

AndthE oCEAn (2008)3 Benjamin S Halpern et al,A Global Map o Human Impact on Marine Ecosys

tems, 319 SCiEnCE 948-52 (2008)

Copyright 2009 Environmental Law Institute, Washington, DC. reprinted with permission from ELR, http://www.eli.org, 1-800-433-5120.


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energy policy consider ocean impacts; (3) restore US lead-ership in marine research; and (4) launch a national oceanhealth initiative4

Fortunately, much work has been done to defne the issues,provide thoughtul and balanced analysis regarding the strat-egies needed, and generate broad consensus on reasonable,easible measures The Pew Oceans Commission and the US

Commission on Ocean Policy issued reports in 2003 and2004, respectively, on suggested reorms or ocean governanceand policy in the United States5 The Joint Ocean CommissionInitiative (JOCI), comprised o members rom both o thesecommissions, ocuses on the key challenges and opportunitieshighlighted in these reports and is a good resource or nonpar-tisan, consensus-driven solutions Many o JOCIs recommen-dations are reected below

I. Ocean Governance Reform

In June 2006, President George W Bush created the largestprotected area in US history when he signed a proclamationdesignating Papahnaumokukea Marine National Monu-ment in the northwestern Hawaiian Islands6 But other thanthat singular act, the Bush Administrations record on oceanissues has been undistinguished As a result, JOCI gave theederal government a D grade or ocean governance in itslatest report card7

Coastal states, meanwhile, have outstripped the ederalgovernment over the past decade in a number o respects:protecting their own waters; establishing ocean trust unds;improving their ocean governance; and creating regional com-pacts For example, in 2004, the fve Gul States ormed theGul o Mexico Alliance, pledging to work together on six ini-

tial priority issues o mutual interest8

In September 2006, thegovernors o Caliornia, Oregon, and Washington announcedtheir intent to work together and issued the West Coast Gov-

4 This article is not meant to be a comprehensive set o ocean recommendationsInstead, we chose to ocus on our particular areas that should be among theAdministrations ocean priorities For a more comprehensive set o ocean recom-mendations rom the environmental community, see A bluEprintForA CoAStAlAnd oCEAn poliCyForthE nEW AdminiStrAtion(2008) (supported by 48 envi-ronmental organizations)

5 thE pEW oCEAnS CommiSSion, AmEriCAS living oCEAnS: ChArtingA CourSEFor SEA ChAngE (2003), available at http://wwwpewtrustsorg/uploadedFiles/wwwpewtrustsorg/Reports/Protecting_ocean_lie/env_pew_oceans_fnal_re-portpd; u.S. CommiSSionon oCEAn poliCy, An oCEAn bluEprintForthE 21StCEntury (2004), available at http://wwwoceancommissiongov/documents/ull_color_rpt/welcomehtml

6 The monument is larger than all US national parks combined SeePapahnaumokukea Marine National Monument,Homepage, http://hawaiireenoaagov/about/welcomehtml (last visited Nov 20, 2008)

7 JOCI, u.S. oCEAn poliCy rEport CArd (2007), available at http://wwwjoin-toceancommissionorg/resource-center/2-Report-Cards/2008-02-27_2007_Ocean_Policy_Report_Cardpd [hereinaterJoCi 2007 rEport CArd]

8 The Gul o Mexico Alliance, a partnership o the states o Alabama, Florida,Louisiana, Mississippi, and Texas, seeks to signifcantly increase regional col-laboration to enhance the ecological and economic health o the Gul o MexicoGul o Mexico Alliance, Homepage, http://wwwgulomexicoallianceorg/wel-comehtml (last visited Nov 20, 2008)

ernors Agreement on Ocean Health9 Caliornia, Massachu-setts, New York, and several other states have recently enactedcutting-edge ocean legislation10 Accordingly, JOCI awardedthe coastal states an A grade or their eorts11

JOCI recently identifed fve specifc policy actions that thenew president and the 111th Congress should take to reormand improve national ocean governance12:

1 Create a national ocean policy.Establish that it is thepolicy o the United States to protect, maintain, andrestore the health o ocean ecosystems and enhancethe sustainability o ocean and coastal economies andrequire that ederal agencies administer US policiesand laws to the ullest extent possible consistent withthis national policy

2 Strengthen ederal leadership and coordinationEstablish a National Ocean Advisor to the President and aninteragency Committee on Ocean Policy to improvecoordination and strengthen leadership in support o anational ocean policy and implementation o a broaderclimate change strategy

3 Codiy and reorganize the National Oceanic and Atmo-spheric Administration (NOAA). Codiy NOAA as thelead ederal civilian agency with responsibility or ourcoasts, oceans, and Great Lakes Consideration shouldbe given to reorganizing the agency along its primaryunctionsassessment, prediction, and operationsresource and area management; and scientifc researchand educationto enhance the agencys capacity orproviding climate-related services; coordinating ederaocean science, management, and education programsproviding support or regional and state ocean manage-

ment eorts; and improving climate change responseeorts

4 Support regional approaches.Support regional solutionsand improved coordination across all levels o govern-ment to promote integration and coordination amongederal, state, and local governments around the goal oocean ecosystem health

5Establish a national ocean trust und.Create an oceantrust und, incorporating revenues generated by eco-nomic activities occurring in ederal waters on the OuterContinental Shel, to support ederal, state, and locaactivities related to understanding and managing ouroceans, coasts, and Great Lakes

9 The agreement launched a new, proactive regional collaboration to protect andmanage the ocean and coastal resources along the entire West Coast, as calledor in the recommendations o the US Commission on Ocean Policy and thePew Oceans Commission West Coast Governors Agreement on Ocean Health

Homepage, http://westcoastoceansgov/ (last visited Nov 20, 2008)10 The Massachusetts Ocean Act was enacted on May 28, 2008 See http://www

massgov/legis/laws/seslaw08/sl080114htm The Caliornia Ocean Protection Act was enacted in 2004 See http://wwwresourcescagov/copc/docsCOPA_2008pd

11 JOCI 2007 Report Card,supra note 612 JOCI, ChAnging oCEAnS, ChAnging World 3, 4 (2008), available at http:/

wwwjointoceancommissionorg/news-room/news-releases/Changing_Oceans,_Changing_Worldpd [hereinater JOCI, Changing Oceans]



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Accession to the Convention will advance US interests by

preserving the right to use the seas to meet national securityrequirements and protect navigational reedom or commercial

vessels to operate around the world It also secures our rightsto natural resources through the ull extent o the continen-

tal shel, even beyond 200 nautical miles Additionally, theConvention promotes the environmental health o the oceans

by supporting scientifc research critical to understandingand managing the oceans This is why the Convention enjoysdiverse and strong support rom virtually every sector, includ-

ing national deense interests, ocean-dependent industries,and the environmental and scientifc communities21

US accession to UNCLOS recently won the support oPresident Bush along with a highly inuential bipartisancoalition o 101 prominent leaders22 Yet despite unequivocalsupport rom virtually every major ocean stakeholder group,conservative senators or years have orestalled ratifcation othe treaty due to concerns over what they see as the poten-tial loss o US sovereignty However, these attitudes may be

changing: Alarm over an Arctic land grab by Russia andother nations interested in seabed resources such as oil andgas has reinvigorated interest in US accession to UNCLOSThe US Geological Survey reported recently that the polarregion harbors one-fth o the planets recoverable oil andnatural gas reserves with about 84% o those deposits locatedoshore23 Recognizing this, Sen Lisa Murkowski (R-Alaska)said in July 2008 that the renewed energy debate is bring-ing attention back to the Law o the Sea24 Already the USDepartment o State is exploring rights to the US extendedcontinental shel (ECS)beyond the 200-mile EEZ25 Initialdata indicates that the United States may have an ECS in theAtlantic East Coast, the Gul o Mexico, the Gul o Alaska,

the Bering Sea, the Arctic Ocean, Kingman Ree/PalmyraAtoll, and the Mariana Islands/Guam26

Only by acceding to UNCLOS will the United States beable to apply to extend its jurisdiction over the OCS beyondits 200-mile EEZ Also, the United States will be unable tocounter continental shel claims by other Arctic nations suchas Canada, Norway, and Russia that are asserting owner-

21 Letter rom Adm James D Watkins and Hon Leon E Panetta, JOCI, to Presi-dent George W Bush (May 17, 2007), available at http://wwwjointoceancommis-sionorg/resource-center/3-Letters/3_International_Leadership/2007-05-17_Letter_to_President_Bush_commending_his_strong_support_or_US_acces-

sion_to_the_United_Nations_Convention_on_the_Law_o_the_Seapd22 Press Release, JOCI, 101 Prominent US Leaders Urge the United States to

Join the Law o the Sea Convention (Sept 24, 2007), available at http://wwwjointoceancommissionorg/news-room/news-releases/2007-09-24_101_Promi-nent_US_leaders_urge_the_US_to_join_the_Law_o_the_Sea_Conventionpd

23 kEnnEth J. bird Et Al., CirCum-ArCtiC rESourCE ApprAiSAl: EStimAtES oFundiSCovErEd oil And gAS north oF thE ArCtiC CirClE, u.S. gEologiCAlSurvEy FACt ShEEt 2008-3049, at 4 (2008), available at http://pubsusgsgov/s/2008/3049[Will provide citation separatelyMS]

24 Lauren Morello, Key Senate Republican Buoys Hopes or Law o the Sea, Cli-mAtEWirE, July 24, 2008, available at http://wwwjointoceancommissionorg/news-room/in-the-news/2008-07-24_Key_Senate_Republican_Buoys_Hopes_or_Law_o_the_Sea@ClimateWirepd

25 US Department o State,Defning the Limits o the U.S. Continental Shel: U.S.Extended Continental Shel Project, http://wwwstategov/g/oes/continentalshel/indexhtm

26Id.

ship o portions o the Arctic seabed27 Fortunately, the newAdministration is well positioned to press the US Senate toput UNCLOS on a ast track toward approval

B. Ensure Environmental Saeguards AreAvailable and Followed

Next, the new Administration and Congress should ensure thatany expanded OCS development receives required environ-mental review and provides proper environmental saeguardsPart o this decision could include reinstating presidential andcongressional moratoriums in certain ocean areas28 On July14, 2008, President Bush lited the presidential prohibition onleasing the ederally managed OCS or oil and gas developmenand production and encouraged Congress to do the same29 InSeptember 2008, Congress allowed the OCS congressionalmoratorium to expire, liting a 27-year ban and making theOCS o the Atlantic and Pacifc Coasts potentially eligible orleasing by the US Department o the Interiors Minerals Man-agement Service (MMS)30 How to prevent harm to the marineenvironment and how to respond to unintended events suchas oil spillsparticularly in newly expanded portions o theOCS where such activities have not been previously managedin these environmentsare central to the policy debate

From a climate change perspective, policy choices willhave to be made regarding greenhouse gas (GHG) emissionreductions and carbon sequestration These choices should bemade with a ull analysis o ways to prevent harm to the marineenvironment Existing legal tools include protecting specifcmarine environments under the National Marine SanctuariesAct 31 or the Antiquities Act,32 both o which orestall oil andgas development Other ederal statutes that help minimize

harm include the Endangered Species Act33

and the MarineMammal Protection Act34 which protect specifc species thamay be threatened by oshore energy activities The NationalEnvironmental Policy Act35 and the Administrative ProcedureAct36 help ensure that ederal actions conorm to required

27 United Nations Convention on the Law o the Sea, Part VI & Annex II (1982, inorce 1994)

28 See Natural Resources Deense Council, Inc, Transition to Green at page 9-41(Nov 25, 2008) (, recommendations to President-Elect Obama issued on November 25, 2008 by a coalition o US environmental groups), available athttp://docsnrdcorg/legislation/fles/leg_08112401apd (recommendations toPresident-Elect Obama issued on by a coalition o US environmental groups)

[hereinatertrAnSitionto grEEn] (Last visited December 3, 2008)29 Press Release, The White House, President Bush Discusses Outer Continenta

Shel Exploration (July 14, 2008), available at http://wwwwhitehousegov/newsreleases/2008/07/20080714-4html The OCS includes the US continentashel beyond state territorial seas For most regions this is 3-200 miles oshoreTexas and the West Coast o Florida have nine nautical mile territorial seasAlso, under UNCLOS, the United States may be able to claim the OCS beyondthe 200-mile limit (see UNCLOS, Part VI)

30 Congress Allows Oshore Oil Drilling Ban to Expire, Envtl. nEWS SErv, Sep30, 2008, available at http://wwwens-newswirecom/ens/sep2008/2008-09-30091asp

31 16 USC 1431-1447()32Id. 43133Id. 1531-1544, ELR Stat ESA 2-1834Id. 1361-1421h, ELR Stat MMPA 2-40935 42 USC 4321-4370, ELR StAt NEPA 2-21036 5 USC 551, available in ELR StAt. Admin. proC



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procedure and analysis or evaluating potentially signifcantadverse environmental eects

The main ederal legal tool available to clean up and restoreocean ecosystems ater accidental discharge is the Oil Pollu-tion Act (OPA), which creates a strict liability regime37 TheOPA creates an Oil Liability Trust Fund that can be usedto pay the costs o response, cleanup, and natural resource

injuries in the absence o a responsible party capable o pay-ing those costs The largest source o unding was a $005per barrel tax However, this provision expired in 1994 andwas not renewed Since 2001, expenditures have exceededrevenues, and a 2005 US Coast Guard report predicted thatunds could be completely depleted by 200938 This highlightsan underlying need to make certain that the appropriate legalmechanisms and unds are in place to respond to damage tothe marine environment that occurs as a byproduct or directresult o ocean energy activities

I oil and gas production on the OCS increases, we encour-age the new president and Congress to use existing mecha-nisms and to explore new approaches that guarantee that oiland gas development does minimal damage to the marineenvironment This could include reinstating the barrel tax orother mechanisms to guarantee that polluters pay or damages,such as through a national ocean trust und as recommendedby JOCI

C. Support Development o Clean OceanEnergy

To support the development o clean ocean energy, President-elect Obama and the new Congress should provide regulatorycertainty to the hydrokinetic energy development commu-

nity by clariying the roles o the Federal Energy RegulatoryCommission (FERC), Mineral Management Service (MMS),and the states The new Administration and Congress shouldalso support tax credits and the development o the electri-cal inrastructure needed to encourage investment in alterna-tive energy technologies, making the United States a leader inclean energy and creating new jobs in the ace o a strugglingUS economy

FERC claims authority to regulate wave, tidal, and currentenergy in navigable waters o the United States under the Fed-eral Power Act39 FERC has claimed that this authority extendsto at least 12 miles rom shore Alone, FERCs authority overhydrokinetic energy is not necessarily problematic However,

the Energy Policy Act o 2005 amended the Outer Continen-tal Shel Lands Act, giving the MMS authority to lease theOCS or alternative energy development40 Consequently, orareas 3 to 12 miles oshore, there exists uncertainty as bothFERC and the MMS claim regulatory authority To encouragedevelopment o hydrokinetic energy, this overlapping author-

37 33 USC 2701-2761, Elr StAt. opA 1001-700138 u.S. CoASt guArd, rEporton implEmEntAtionoFthE oil pollution ACtoF

1990, at 14-15 (2004), available at http://wwwuscgmil/ccs/npc/docs/PDFs/os-lt_reportpd

39 Order Ruling on Declaration o Intention and Finding Licensing Required, 101FERC 62009 (Oct 3, 2002)

40 Pub L No 109-58, 119 STATStat 594 (2005)

ity should be clarifed One way to do this would be to removeFERCs role as a hydrokinetic licensing body under the Fed-eral Power Act, leaving licensing to the states in state watersand to the MMS with Coastal Zone Management Act consis-tency on the OCS Another option would be to limit FERCsauthority to state waters

While regulatory uncertainty remains problematic or

hydrokinetic energy development, wind energy does nohave that same challenge In ederal waters, MMS alone hasregulatory oversight However, two key issues are inhibitingexpanded wind energy development: (1) lack o long-term taxcredits to support this nascent industry; and (2) developmento the electrical inrastructure needed to deliver wind-gener-ated power to key locations The wind industry has remarkedthat tax credits are essential to development o wind energyresources, and without long-term tax credits it is difcult togenerate the long-term investments needed to ully develop theresource41 Congress recently extended the wind energy taxcredit by one year However, this year-by-year extension cre-ates a lack o certainty about uture credits, and some ear thatthis is limiting investment and thereore development o thisimportant resource To encourage investment in wind energythe new president and Congress should support the rebuildingo the US electrical inrastructure and provide long-term taxcredits until this nascent industry has a stronger oothold as asupplier o clean energy

In addition to other sources o unding, and perhaps througha national ocean trust und, revenue rom oil and gas develop-ment should be used to und research and clean ocean energydevelopment The new president and Congress should revisithe Comprehensive American Energy Security and ConsumerProtection Act passed by the US House o Representatives in

September 2008, which would create a Strategic Energy Ef-ciency and Renewables Reserve42 This und would be used toadvance the use and development o clean domestic renewableenergy resources and alternative uels, provide assistance orlow income home energy and weatherization programs, urtherthe purposes o the Land and Water Conservation Fund Actand increase research and development o carbon capture andsequestration technologies

D. Reduce User Confict and Support Long-Term Sustainability o Ocean Resources

The development o new ocean energies, the expansion o

OCS oil and gas exploration and production, and the devel-opment o onshore and oshore liquefed natural gas portsamong other new uses, raises the question o how to properlysite and manage these new uses so that fshermen, the ship-ping industry, and other sectors can continue to utilize theocean The combined impact o new and old uses will also putincreasing pressure on the health and resilience o our oceanecosystems To guarantee continued availability o the ocean

41 MP3 Recording: Ocean Energy: Oshore Wind (seminar held at the Environmental Law Institute in Washington, DC, Sept 15, 2008), available at http:/wwweliorg/seminars/ocean_seriescm

42 HR 6899, 110th Cong 135



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tect human and environmental health and to sustain and growour economy49 Like most challenges, revitalizing ocean healthalso presents tremendous opportunity

This Article has already recommended a number oactions the Obama Administration can take to restore oceanhealthimproving national ocean governance, expandingocean research and unding opportunities, and acceding to

UNCLOS This section highlights additional steps the ObamaAdministration should take to improve overall ocean health

First, President-elect Obama should issue an ExecutiveOrder proclaiming that ocean health is critically important tohuman well-being and the US economy Such an order couldembody a commitment to make ocean health a priority o anda legacy issue or the Obama Administration This soundsdaunting, given the current economic and global challengesour country is acing However, Americans love our beachesand oceansindeed, one report amously says we are lovingthem to deathso there exists widespread public support orimproving ocean health This is sure to grow once the newpresident makes this decision and begins to exercise leader-ship in support o the changes that are needed

Second, President-elect Obama should see that the ederalgovernment not only complies with applicable laws designedto ensure environmental and species protection but also dem-onstrates leadership in proposing new, bold, and visionarysolutions to the most pressing problems aced by our oceansThe worlds living ocean resourcesmarine mammals, fshpopulations, coral rees, and the ecosystems they dependuponneed to survive and thrive Ecosystem services thatwe enjoy, such as seaood and recreation, depend on healthymarine ecosystems The pPresident can ensure that ederalactivities are designed to protect and, where possible, restore

the vitality and resilience o ocean ecosystemsA recent US Supreme Court case is illustrative o theproblem50 The case concerned the US Navys need to con-duct sonar testing in the oceans to provide or national secu-rity The Navy has options or how it conducts these tests, someo which are less harmul to marine mammals than othersDespite existing measures in place to protect marine mam-mals during certain types o naval sonar exercises (whichresulted rom a settlement ollowing separate litigation), theNavy determined the testing did not require ull environmen-tal review under NEPA and implemented a testing approachthat was potentially more harmul to marine lie The SupremeCourt reversed lower court injunctions against the navys cho-

sen sonar technique, fnding that the mere possibility o harmto marine species was an insufcient basis or issuing what theCourt ound to be an overly broad remedy The point is thatwhen evaluating its activities as required by NEPA, the ed-eral government almost always has choices in how to proceed

49 SeetrAnSitionto grEEn,supra note 28, at 15-1 (Nov 25, 2008) (recommenda-tions to President-Elect Obama issued on by a coalition o US environmen-tal groups), available at http://docsnrdcorg/legislation/fles/leg_08112401apdSee Transition to Green, at page 15-1, recommendations to President-ElectObama issued on November 25, 2008 by a coalition o US environmentalgroups, http://docsnrdcorg/legislation/fles/leg_08112401apd (Last visitedDecember 3, 2008)

50 Winter v Natural Resources Deense Council, No 071239, 38 ELR 20279(US Nov 12, 2008)

While the Court stopped short o holding that national securityconcerns will always trump environmental laws, actions by ourgovernment that aect living resources should be ashioned toavoid harm whenever possible The ederal government shouldshow national and international leadership in pursuing protec-tive approaches whenever reasonably easible to do so

President-elect Obama should take a hard look at the

ederal policy stances that will be inherited rom the BushAdministrationon sonar testing, shipping conicts withright whales and other aected marine mammals, polar bearsand other marine species whose survival is at riskand applythe principle o do no harm whenever easible From therethe new administration can adopt and implement the neces-sary changes in policy that ow rom this principle while stillallowing necessary and vital ederal actions to proceed

Third, many estimates indicate that about 90% o waterimpairments today are attributable to nonpoint sources o pol-lution Current ederal laws and policies contain limited toolsto address this type o pollution despite its increasingly adverseeects on ocean health, including hypoxic (dead) zones, harm-ul algal blooms, and negative impacts on fsheries and recre-ation There is broad consensus that the current Clean WaterAct (CWA)51 ramework is not designed to address this issuedirectly While the US Environmental Protection Agency(EPA) and the US Department o Agriculture, among othershave pursued measures and creative tools within the boundso current law to encourage better management and control ononpoint source pollution, we lack a coherent, comprehensiveand eective ederal policy to tackle this problem Moreoverwhile many agree on the problem, little consensus has devel-oped around a solution Some groups, such as the Associationo State and Interstate Water Pollution Control Administrators

call or signifcantly more unding or existing programs Oth-ers, such as the National Association o Clean Water Agenciessuggest both a legislative re-write to include nonpoint sourcesas well as signifcant new long-term unding or sustainablewater quality and inrastructure improvements Finding theright approach and sufcient unding to make a new approacheasible is a daunting challenge

These issues can quickly become politicized The CWAdoes not regulate all nutrients, sediments, and other pollut-ants stemming rom agriculture, and conservation incentivesunder the Farm Bill are subject to change, particularly as thedemand or ethanol has grown in recent years Municipalitieslikewise have ew easy or inexpensive solutions or control-

ling urban runo Other sources o pollution contribute to poorwater quality in the oceans and along our coastlines, but fnd-ing eective and cost-justifed ways to reduce the impacts oagricultural and urban runo are unquestionably critical toimproving water quality in the uture Solving this problemwill go ar in helping reduce beach closings, harmul algalblooms, hypoxic zones, fshery and coral ree declines, andother linked ocean health problems

What makes this challenge so difcult is the geographicbreadth and diuse nature o the problem, the resources nec-essary to make signifcant improvements, and the reality that

51 33 USC 1251-1387, Elr StAt. FWpCA 101-607



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political positions on these issues have become entrenchedThe new Administration has an opportunity to take a reshlook at how it can approach changes to the CWA and ederalarm policy to address the issue o nonpoint source pollutionin a meaningul way To do this will likely require develop-ing large and sustainable unding mechanisms, coupled withappropriate measures in law and policy, to require and provide

incentives or the necessary behavior changes to resolve thesecritical water quality problems The political and fnancialinvestment in such change will be very large, which makesthis piece o the puzzle so daunting But there are many smartand credible ways to orecast and measure the value o the eco-nomic and environmental benefts that we will gain as a nationrom reducing nonpoint source pollution This challenge neednot be a blame game; indeed, the CWA has by most accountsaccomplished what was intended on point source dischargesBut it needs a modern overhaul to address the contemporary

problems that were not as prominent 35 years ago when thestatute was enacted

V. Conclusion

President-elect Barack Obama and 111th Congress will havean unprecedented opportunity to restore US leadership in

ocean conservation, health, and governance while coordinat-ing such advances with changes in energy policy They willalso carry a mandate to address climate change and its impacton the earth, notably the oceans

By appointing agency leaders with vision and taking advan-tage o blueprints such as the reports and recommendations othe two ocean commissions, the White House and Congresswill have a terrifc opportunity to work together on behal oour oceans and the services they provide to humanity


a bold new ocean agenda

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