Charting a course toward ecosystem-based management in the Gulf of Mexico

Duke Environmental Law and Policy Forum

Volumn 16, Issue 2, 2006, Pages 267-292

  Nugent, Ingrid ^b   Cantral, Laura ^a  

^a Meridian Institute   (United States)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

ECOSYSTEM MANAGEMENT; MARINE ECOSYSTEM; MARINE ENVIRONMENT;

ATLANTIC OCEAN; GULF OF MEXICO;

EID: 33745224746     PISSN: 10643958     EISSN: 10643958     Source Type: Journal    
DOI: None     Document Type: Article

References (184)

1. See, e.g., SCIENTIFIC CONSENSUS STATEMENT ON MARINE ECOSYSTEM-BASED MANAGEMENT 1 (2005), available at http://compassonline.org/files/inline/ EBM%20Concensus%20Statement_FINAL_July%2012_v12.pdf (statement was signed by 217 academic scientists and policy experts with relevant expertise and published by the Communication Partnership for Science and the Sea) [hereinafter SCIENTIFIC CONSENSUS STATEMENT];
2. Norman L. Christensen et al., The Report of the Ecological Society of America Committee on the Scientific Basis for Ecosystem Management, 6 ECOLOGICAL APPLICATIONS 665 (1996);
3. R. Edward Grumbine, What is Ecosystem Management?, 8 CONSERVATION BIOLOGY 27 (1994) [hereinafter Grumbine I];
4. R. Edward Grumbine, Reflections on "What is Ecosystem Management?", 11 CONSERVATION BIOLOGY 41 (2002) [hereinafter Grumbine II];
5. P.A. Larkin, Concepts and Issues in Marine Ecosystem Management, 6 REVS. FISH BIOLOGY & FISHERIES 139 (1996).
6. Some examples include Yellowstone National Park, Pacific Northwest Forest Management Plan, and certain military facilities.
7. See U.S. COMM'N ON OCEAN POLICY, AN OCEAN BLUEPRINT FOR THE 21ST CENTURY: FINAL REPORT OF THE U.S. COMMISSION ON OCEAN POLICY (2004), available at http://www.oceancommission.gov/documents/fullcolorrpt/ 000_ocean_full_report.pdf [hereinafter USCOP REPORT];
8. PEW OCEANS COMM'N, AMERICA'S LIVING OCEANS: CHARTING A COURSE FOR SEA CHANGE (2003), available at http://www.pewtrusts.org/pdf/ env_pew_oceans_finalreport.pdf [hereinafter PEW REPORT].
9. USCOP REPORT, supra note 3, at 63. U.S. Comm'n on Ocean Policy, an Ocean Blueprint for the 21st Century: Final Report of the U.S. Commission on Ocean Policy (2004), available at http://www.oceancommission.gov/ documents/full_color_rpt/000_ocean_full_report.pdf [hereinafter USCOP REPORT];
10. PEW REPORT, supra note 3, at x.
11. USCOP REPORT, supra note 3, at 86-96;
12. PEW REPORT, supra note 3, at 103-06.
13. U.S. OCEAN ACTION PLAN: THE BUSH ADMINISTRATION'S RESPONSE TO THE U.S. COMMISSION ON OCEAN POLICY 10-11 (2004), available at http://ocean.ceg.gov/actionplan.pdf [hereinafter OCEAN ACTION PLAN].
14. See, e.g., Grumbine I, supra note 1;
15. Larkin, supra note 1;
16. Christensen et al., supra note 1;
17. Grumbine II, supra note 1.
18. SCIENTIFIC CONSENSUS STATEMENT, supra note 1, at 1.
19. See USCOP REPORT, supra note 3, at 64-65.
20. The USCOP recommended that management boundaries encompass Large Marine Ecosystems ("LMEs") that divide "the ocean into large functional units based on shared bathymetry, hydrography, productivity, and populations." USCOP REPORT, supra note 3, at 62-63.
21. LMEs are a concept that has evolved through numerous publications after being originally developed in VARIABILITY AND MANAGEMENT OF LARGE MARINE ECOSYSTEMS: AAAS SELECTED SYMPOSIUM 99 (Kenneth Sherman & Lewis M. Alexander eds., 1986).
22. For a list of other LME publications, see http://na.nefsc.noaa.gov/lme/ publications.htm (last visited Apr. 7, 2006).
23. The USCOP recommended using LMEs and the watersheds that drain into them as a starting point for defining management boundaries for regional ocean councils. The Commission maintained that "at a minimum, councils should encompass the area from the inland extent of coastal watersheds to the offshore boundary of the nation's exclusive economic zone." USCOP REPORT, supra note 3, at 90. U.S. Comm'n on Ocean Policy, an Ocean Blueprint for the 21st Century: Final Report of the U.S. Commission on Ocean Policy (2004), available at http://www.oceancommission.gov/ documents/full_color_rpt/ 000_ocean_full_report.pdf [hereinafter USCOP REPORT];
24. See Christensen et al., supra note 1, at 666.
25. Personal Communication with Norman Christensen, Professor of Ecology, Nicholas Sch. of the Env't & Earth Scis., Duke Univ., in Durham, N.C. (Jan. 19, 2006).
26. Id.
27. See PEW REPORT, supra note 3, at x.
28. Id. at 103. PEW Oceans Comm'n, America's Living Oceans: Charting a Course for Sea Change (2003), available at http://www.pewtrusts.org/pdf/ env_pew_oceans_final_report.pdf [hereinafter PEW REPORT].
29. Id. at 104.
30. Id. at 105.
31. Oceans Act of 2000, Pub. L. No. 106-256, §§ 3(a), (b)(1), 114 Stat. 644, 645(2000).
32. The USCOP recommends moving toward an ecosystem-based management approach throughout its final report. See, e.g., U.S. COMM'N ON OCEAN POLICY, EXECUTIVE SUMMARY 5 (2004) available at http:// www.oceancommission.gov/documents/full_color_rpt/ 00b_executivesummary.pdf
33. See USCOP REPORT, supra note 3, at 77.
34. Id. at 79.
35. See id. The USCOP recognized that the new entities must eventually be codified to ensure long-term commitment, but that presidential action could launch them immediately. U.S. Comm'n on Ocean Policy, an Ocean Blueprint for the 21st Century: Final Report of the U.S. Commission on Ocean Policy (2004), available at http://www.oceancommission.gov/ documents/full_color_rpt/000_ocean_full_report.pdf [hereinafter USCOP Report];
36. Id.
37. Id. at 79-80.
38. See id. at 81.
39. Id. at 87.
40. Id. at 90.
41. Id. at 90-91.
42. Id. at 90.
43. Id.
44. Id.
45. Id. at 91.
46. Id. at 160. U.S. Comm'n on Ocean Policy, an Ocean Blueprint for the 21st Century: Final Report of the U.S. Commission on Ocean Policy (2004), available at http://www.oceancommission.gov/documents/full_color_rpt/ 000_ocean_full_report.pdf [hereinafter USCOP Report];
47. Oceans Act of 2000, Pub. L. No. 106-256, § 4(a), 114 Stat. 644, 648 (2000), amended by 107 Pub. L. No. 107-372, 116 Stat. 3096 (2000).
48. Exec. Order No. 13,366, 3 C.F.R. 244 (2005), available at http://www.whitehouse.gov/news/releases/2004/12/20041217-5.html.
49. OCEAN ACTION PLAN, supra note 7. U.S. OCEAN ACTION PLAN: THE BUSH ADMINISTRATION'S RESPONSE TO THE U.S. COMMISSION ON OCEAN POLICY 10-11 (2004), available at http://ocean.ceg.gov/actionplan.pdf [hereinafter OCEAN ACTION PLAN].
50. Id. at 7.
51. Id. at 8.
52. See also Priorities for the Subcommittee on Integrated Management of Ocean Resources, http://ocean.ceg.gov/about/simor.html (last visited Apr. 6, 2006).
53. Another subcommittee under the ICOSRMI is the Joint Subcommittee on Ocean Science and Technology. National Science and Technology Council Joint Subcommittee on Ocean Science and Technology, http://ocean.ceq.gov/ about/jsost.html (last visited Apr. 6, 2006).
54. Personal Communication with Kameran Onley, Assoc. Dir. for Envtl. Policy, White House Council on Envtl. Quality, in Wash., D.C. (Jan. 6, 2006).
55. OCEAN ACTION PLAN, supra note 7, at 4-5.
56. Id. at 10.
57. Id. at 11.
58. USCOP REPORT, supra, note 3, at 80.
59. However, instead of being administered by a special Assistant to the President as recommended by the USCOP, the Council on Ocean Policy in the U.S. Ocean Acton Plan is chaired by the head of the Council on Environmental Quality, who must tend to this as one of many responsibilities. See OCEAN ACTION PLAN, supta note 7, at 6.
60. USCOP REPORT, supra note 3, at 80-81.
61. Id. at 90.
62. Id.
63. General Facts about the Gulf of Mexico, http://www.epa.gov/gmpo/about/ facts.html (last visited Mar. 3, 2006).
64. Id.
65. NAT'L OCEANIC & ATMOSPHERIC ADMIN., NAT'L OCEAN SERV., HYPOXIA IN THE GULF OF MEXICO: PROGRESS TOWARDS THE COMPLETION OF AN INTEGRATED ASSESSMENT (2000), http://www.nos.noaa.gov/products/pubs hypox.html.
66. MISS. RIVER/GULF OF MEX. WATERSHED NUTRIENT TASK FORCES, ACTION PLAN FOR REDUCING, MITIGATING, AND CONTROLLING HYPOXIA IN THE NORTHERN GULF OF MEXICO 5 (2001), http://www.epa.gov/msbasin/taskforce/pdf/ actionplan.pdf. [hereinafter Hypoxia Report].
67. U.S. GEOLOGICAL SOC'Y, FACT SHEET, LOUISIANA COASTAL WETLANDS: A RESOURCE AT RISK (1995), available at http://marine.usgs.gov/factsheets/ LAwetlands/lawetlands.html.
68. GULF OF MEX. ALLIANCE, WHITE PAPER: IMPROVING GULF OF MEXICO WATER QUALITY 1 (May 12, 2005), available at http://www.dep.state.fl.us/gulf/ files/files/WaterQuality_Florida.pdf.
69. GULFBASE.ORG, OVERFISHING AND BYCATCH (2004), available at http://www.gulfbase.org/issue/view.php?iid=oab.
70. Gulf Health Crisis: Preservation Efforts Will Require Funding and Education, SARASOTA HERALD-TRIB., Sept. 5, 2005, at A18.
71. USCOP REPORT, supra note 3, at 89.
72. HYPOXIA REPORT, supra note 51, at 8.
73. USCOP REPORT, supra note 3, at 86.
74. Id.
75. "We all believe these are challenges we can better meet from a regional basis, and there's strength in numbers,'said Dugan Sabins, senior environmental scientist at the Louisiana Dept. of Envtl. Quality." Associated Press, Coastal States Pledge to Cooperate on Gulf Issues, NAPLES DAILY NEWS, June 9, 2005.
76. Letter from Jeb Bush, Governor of Fla., to Governors of Gulf States (Apr. 26, 2004), available at http://www.dep.state.fl.us/gulf/leadership/ files/govBush⋉tter1.pdf.
77. An ultimately failed attempt to form an accord in the Gulf region in 1991 was embodied in a number of pieces of legislation in the 102nd and 103rd Congress. See, e.g., Gulf of Mexico Environmental and Economic Restoration and Protecton Act of 1992, H.R. 5441, 102nd Cong.(2d Sess. 1992);
78. Gulf of Mexico Economic and Environmental Protection Act of 1993, H.R. 1899, 103rd Cong. (1st Sess. 1993).
79. See Gulf of Mexico Alliance, http://www.dep.state.fl.us/gulf/default.htm (last visited Mar. 3, 2006).
80. Id.
81. The state agencies are the Alabama Dept. of Conservation & Natural Resources, Coastal Section, State Lands Division; Florida Department of Environmental Protection, Office of Coastal and Aquatic Managed Areas; Louisiana Department of Environmental Quality; Mississippi Department of Environmental Quality; Texas Commission on Environmental Quality. See Gulf of Mexico Alliance Links, http://www.dep.stat.fl.us/gulf/leadership/ default.htm.
82. OCEAN ACTION PLAN, supra note 7, at 5.
83. The Gulf of Mexico Regional Partnership Federal Workgroup includes the Council of Environmental Quality, National Aeronautics and Space Administration, National Science Foundation, U.S. Army Corps of Engineers, U.S. Department of Agriculture, U.S. Department of Commerce/ National Oceanic and Atmospheric Administration, U.S. Department of Defense/U.S. Navy, U.S. Department of Energy, U.S. Department of Interior, U.S. Department of Health and Human Services/Food and Drug Administration, U.S. Department of State, U.S. Department of Transportation, U.S. Environmental Protection Agency. See Gulf of Mexico Alliance Links, http://www.dep.state.fl.us/%20gulf/leadership/ default.htm.
84. NAT'L OCEANIC & ATMOSPHERIC ADMIN. & U.S. ENVTL. PROT. AGENCY, COORDINATING FEDERAL SUPPORT FOR THE GULF OF MEXICO ALLIANCE 2 (2005), available at http://www.dep.state.fl.us/gulf/files/files/ CoordinatingFederalSupport.pdf [hereinafter COORDINATING FEDERAL SUPPORT]. The intent of federal partners in the Alliance is to work to mitigate federal barriers to state action. These barriers will be identified through a variety of mechanisms.
85. The intent of federal partners in the Alliance is to work to mitigate federal barriers to state action. These barriers will be identified through a variety of mechanisms. Personal Communication with Kameran Onley, supra note 40.
86. COORDINATING FEDERAL SUPPORT, supra note 68, at 2.
87. Personal Communication with Brent Ache, Physical Scientist, NOAA's Ocean Serv. in Silver Spring, Md. (Jan. 6, 2006).
88. The process was postponed due to hurricanes.
89. The Summit was originally scheduled for November 2005, but the Gulf coast hurricanes that year pushed the Summit date back to March 28-30, 2006.
90. More information on the State of the Gulf of Mexico Summit can be found at www.stateofthegulf.org (last visited Apr. 7, 2006).
91. Personal Communication with David E. Guggenheim, Ph.D., Consultant, Fla. Dept. of Envtl. Protection, in Wash., D.C. (Jan. 13, 2006).
92. The action plan was launched fourteen months after Governor Bush's letter.
93. Personal Communication with Katherine Andrews, Dir., Coastal States Org., in Wash., D.C. (Jan. 13, 2006).
94. A notable recent example occurring in the context of a new regional governance approach is found in GREAT LAKES REG'L COLLABORATION, FINAL REPORT: GREAT LAKES REGIONAL COLLABORATION STRATEGY TO RESTORE AND PROTECT THE GREAT LAKES (2005), available at http://www.glrc.us/ documents/GLRC Strategy.pdf.
95. Personal Communication with Brent Ache, supra note 70.
96. Id.;
97. Personal Communication with Kameran Onley, supra note 40.
98. Personal Communication with David E. Guggenheim, supra note 74.
99. Id.
100. Personal Communication with Kameran Onley, supra note 40.
101. Steven L. Yaffee & Julia M. Wondolleck, Building Bridges Across Agency Boundaries: The Science of Ecosystem Management, in CREATING A FORESTRY FOR THE 21ST CENTURY 381, 387 (Kathryn A. Kohm & Jerry F. Franklin eds., 1997);
102. Bruce Shindler & Kristin A. Cheek, Integrating Citizens in Adaptive Management: A Propositional Analysis, 3 CONSERVATION ECOLOGY 9 (1999), available at http:/www.consecol.org/vol3/iss1/art9/.
103. Personal Communication with Katherine Andrews, supra note 76;
104. Personal Communication with Kameran Onley, supra note 40.
105. Fisheries and energy development, while recognized as important issues for the region, were shied away from as initial focus areas because of their complexity and contentiousness. These factors would have worked against the goal of getting some immediate actions underway to promote partnerships and build public support. Personal Communication with Kameran Onley, supra note 40.
106. COORDINATING FEDERAL SUPPORT, supra note 68, at 1.
107. The white papers are available at http://www.dep.state.fl.us/gulf/files/ default.htm (last visited Apr. 7, 2006).
108. GULF OF MEX. ALLIANCE, STATE & FED. REV./COMMITMENTS DRAFT GOVERNORS' ACTION PLAN FOR HEALTHY AND RESILIENT COASTS 2 (Dec. 21, 2005) [hereinafter GOVERNORS' ACTION PLAN].
109. Id.
110. There appear to be three common themes among the action items: holding multi-party workshops to share information, coordinate specific efforts, learning how to use new tools, and idenfify barriers and opportunities for more effective management; developing models and standardizing data gathering and use while identifying needs for additional data and tools, comprehensive assessments of various parts of ecosystems, including assessments of the current state of knowledge; and conducting pilot projects to test the use of new tools.
111. Personal Communication with Kameran Onley, supre note 40.
112. COORDINATING FEDERAL SUPPORT, supra note 68, at 2 (emphasis added).
113. Personal Communication with Norman Christensen, supra note 13.
114. For example, it is understood at this point that water quality may be most effectively addressed on a watershed basis.
115. USCOP REPORT, supra note 3, at 61.
116. Id. at 64.
117. The three mile limit was established by the Submerged Lands Act of 1953, 43 U.S.C. §§ 1301-1315 (2000).
118. Texas' and Florida's west coasts are exceptions. Their jurisdiction extends to 9 nautical miles from the baseline. United States v. Florida, 363 U.S. 121 (1960).
119. Consistent with the United Nations Convention on Law of the Sea, the U.S. claimed a 200 mile EEZ in 1983. Proclamaton No. 5030, 3 C.F.R. 22 (1984), reprinted in 16 U.S.C. § 1802(11) (2000).
120. See GULFBASE, GENERAL FACTS ABOUT THE GULF OF MEXICO, available at www.gulfbase.org/facts.php (last visited Apr. 6, 2006).
121. For example, on the issue of nutrient loading in the Gulf, a large percentage of excess nitrogen comes from agricultural states far inland. HYPOXIA REPORT, supra note 51, at 8.
122. The final action item in the Governors' Action Plan is creation of a "united voice" on nutrient loading to engage states throughout the Mississippi River Basin. It is unknown how that will translate into meaningful action. Id. at 9-11.
123. See also Personal Communication with Kameran Onley, supra note 40.
124. Personal Communication with Kameran Onley, supra, note 40.
125. See Andrew A. Rosenberg, Regional Governance and Ecosystem-Based Management of Ocean and Coastal Resources: Can We Get There from Here?, 16 DUKE ENVTL. L. & POL'Y F. 179 (2006).
126. GULF OF MEX. ALLIANCE, WHITE PAPER: REDUCTIONS IN NUTRIENT LOADING TO THE GULF OF MEXICO 7 (2005), available at http://www.dep.state.fl.us/ gulf/files/default.htm.
127. SCIENTIFIC CONSENSUS STATEMENT, supra note 1, at 1.
128. For example, "functional groups" could include "collections of species that perform a similar function, irrespective of their taxonomic affinities." Gary L. Springer, Address at the World Trade Center of New Orleans: Integrating the Gulf of Mexico Border (June 28, 2005).
129. For example, ecosystem services include water filtration, storm protection, and food production.
130. SCIENTIFIC CONSENSUS STATEMENT, supra note 1, at 1.
131. Id. at 4.
132. Personal Communication with Norman Christensen, supra note 13.
133. Personal Communication with Brent Ache, supra note 70.
134. USCOP REPORT, supra note 3, at 90.
135. Id.
136. The Gulf of Mexico extends internationally to the shores of Mexico and Cuba. There is recognition among Alliance participants that international cooperation could contribute to better protection of the Gulf. Personal Communication with David Guggenheim, supra note 74.
137. One international institution, the Gulf of Mexico Accord is described as part of the "leadership" of the Alliance on the Alliance's website. See Gulf of Mex. Alliance, http:/www.dep.state.fl.us/gulf/ leadership/ default.htm (last visited Apr. 6, 2006).
138. The Accord is an agreement among the eleven U.S. and Mexican states adjacent to the Gulf of Mexico (Campeche, Quintana Roo, Tabasco, Tamaulipas, Veracruz, and Yucatan from Mexico and Alabama, Mississippi, Louisiana, Florida, and Texas from the U.S.) to support "working partnerships between the states to foster the evolution of economic development and infrastructure development opportunities, as well as educational and cultural exchanges." THE GULF OF MEX. STATES ACCORD, ACCORD OF THE STATES OF THE GULF OF MEXICO (May 1995), available at http:/www.gomsa.org/accord/accord.html. At this point, the secretariat of the Gulf of Mexico States Accord is involved in some preliminary discussions with the Alliance, but the full degree of international involvement is yet to be determined.
139. Personal Communication with David E. Guggenheim, supra note 74.
140. SCIENTIFIC CONSENSUS STATEMENT, supra note 1, at 5.
141. Agency commitment is affected by politics and the circumstances of individual governmental actors that affect their dedication to any particular facet of their professional duties. As one federal participant stated "participation and engagement is personality dependent." Personal Communication with Brent Ache, supra, note 70.
142. Personal Communication with Katherine Andrews, supra note 76.
143. Texas and Florida have adopted leadership roles among the states. Personal Communication with Kameran Onley, supra note 40.
144. Personal Communication with Katherine Andrews, supra note 76.
145. Personal Communication with Kameran Onley, supra note 40.
146. Id.
147. Personal Communication with Katherine Andrews, supra note 76;
148. Personal Communicafion with Brent Ache, supra note 70.
149. Personal Communication with Katherine Andrews, supra note 76.
150. Bruce Shindler & Kristin Aldred Cheek, supra note 84, at 9.
151. Id.
152. (Citing T.B. Knopp & E.S. Caldbeck, The Role of Participatory Democracy in Forest Management, 88 J. FORESTRY 13 (1990);
153. T.B. Lauber & B. Knuth, Fairness in Moose Management Decision Making: The Citizen's Perspective, 25 WILDLIFE SOC'Y BULL. 776 (1997)).
154. Telephone Conversation with Ginger Hinchcliff, Coastal Mgmt. Servs. Branch Chief & Brie Bierman, Coastal Mgmt. Specialist, NOAA Coastal Servs. Center (Jan. 3, 2006). Eight community workshops were planned for the region, but the 2005 Gulf coast hurricanes required organizers to change their original plans. All eight workshops have now been completed, prior to the Gulf Summit in March.
155. Id. Dates and locations of workshops are as follows: Naples, FL 6/9/ 2005; Tampa, FL 8/23/2005; Tampa, FL 8/23/2005; Apalachicola, FL 8/25/ 2005; Sarasota, FL 9/14/2005; Galveston, TX 9/20/2005; Port Arkansas, TX 1/19/2006; Mississippi-Alabama 1/31/2006; Mississippi-Alabama 2/1/2006; Thibodaux, LA 2/21/2006.
156. Id.
157. Id.
158. Id.
159. Personal Communication with David E. Guggenheim, supre note 74.
160. Gulf of Mex. Alliance, available at http://www.dep.state.fl.us/gulf/ events/workshops.htm (last visited Apr. 7, 2006).
161. Telephone Conversation with Ginger Hinchcliff & Brie Bierman, supra note 124.
162. Id.
163. Id.
164. USCOP REPORT, supra.note 3, at 91.
165. Personal Communication with Kameran Onley, supra note 40.
166. Personal Communication with Brent Ache, supra note 70.
167. Personal Communication with Kameran Onley, supra note 40.
168. Id.
169. See generally ADAPTIVE ENVIRONMENTAL ASSESSMENT AND MANAGEMENT (C.S. Holling ed., 1978);
170. CARL J. WALTERS, ADAPTIVE MANAGEMENT OF RENEWABLE RESOURCES (1986)
171. Cited in Kai N. Lee, Appraising Adaptive Management, 3 CONSERVATION ECOLOGY 3 (1999), available at http://www.consecol.org/vol3/iss2/art3/.
172. Lee, supra note 137, at 3.
173. Id. Lee offers a third important characteristic-an adaptive managerial perspective.
174. The concepts were organically developed in the work of Walters and Hollings on the Everglades. Carl J. Walters & C.S. Holling, Large-Scale Management Experiments and Learning by Doing, 71 ECOLOGY 2060, 2060-61 (1990).
175. WALTERS, supra note 137, at 259.
176. Personal Communication with Norman Christensen, supra note 13.
177. Lee, supra note 137.
178. Personal Communication With Norman Christensen, supra note 13.
179. Lee, supra note 137, at 9.
180. Id.
181. Id. Lee notes that under an adaptive approach implemented by government officials, the "balance between the benefits and risks of learning is measured in political metrics."
182. Id.
183. Id.
184. Personal Communication with Norman Christensen, supra note 13.