C/^-Oc^l U.S. OCEAN POLICY IN THE 1970s: STATUS AND ISSUES U.S. DEPARTMENT OF COMMERCE U.S. OCEAN POLICY IN THE 1970s: STATUS AND ISSUES \ v£* ®^TES O* * 2 Percentage Percentage of U.S. industrial employment of Portion of coastal zone land use 1940 1950 1960 1970 New England 0.50 4.00 3.78 3.68 3.60 Mid-Atlantic 85 15.45 15.29 15.18 14.29 South Atlantic 94 1.15 1.39 1.94 2.15 Eastern Gulf Coast 77 .62 .76 1.03 1.08 Western Gulf Coast 88 1.54 1.72 1.91 2.11 Southern California 57 2.75 3.54 4.89 5.29 San Francisco area 37 1.73 2.21 2.62 2.83 Northern California-Oregon 80 .20 .27 .28 .27 Washington 63 .84 1.00 1.03 1.09 Great Lakes 2.24 10.77 10.88 10.31 9.85 Total coastal zone 8.58 39.05 40.84 42.88 42.57 Coastal zone less Great Lakes 6.34 28.28 29.96 43.57 32.72 i Coastal zone is defined as the set of counties contiguous to the oceans or the Great Lakes or their estuarial arms. Alaska and Hawaii are omitted. 2 Source: U.S. Congress, Senate, Committee on Commerce. The Oceans and National Economic Development. 93d Cong.. 1st sess., Committee Print. Washington, D.C., Government Printing Office, 1973, p. 168. billion by 1972 and was projected to reach $1.4 to $4.2 billion in fish value alone by the year 2000 (processing and marketing are additional). The mineral industry is the largest, and destined to grow larger, in terms of ocean resource produc- tion. Dominated by the production of oil and gas offshore, mineral production was $3.4 billion in out- put in 1973. By 1985, the amount is expected to reach $15.8 billion. In addition to oil and gas there was projected production of significant amounts of magnesium and sulfur. Deep-ocean mining is ex- pected to constitute a $130 million extractive in- dustry by 1985, and processing onshore would add several hundred million more dollars to the indus- try's value. Ocean transportation of goods, both foreign and domestic, was said to constitute a $10.5 billion private investment in 1972. 18 The Nathan report suggests that offshore energy production will become a major economic factor in coming years, projecting an investment on the order of $3.7 to $6 billion in the year 2000. This is primarily offshore nuclear power production, but could be higher if conventional plants are located offshore. Population In terms of demographic trends, the "coastal States" are by and large "growth States;" and the "coastal counties" within those States are growth areas; thus the metropolitan areas near the coast are, for the most part, expanding. The Nation's 12 largest States have coasts, 19 and 9 of the 12 fastest- growing States, in terms of percentage growth, are coastal States. 20 Coastal counties within these States are generally growth counties. Most of them expanded in popu- lation between 1960 and 1970 at a rate that ex- ceeded the national average of 13.3 percent. On the West Coast, for example, in the 46 coastal counties that stretch from Washington to California, 30 grew faster than the national average during the !8 Ibid, pp. 93. is In order, California, New York, Pennsylvania, Texas, Illi- nois, Ohio, Michigan New Jersey, Florida, Massachusetts, Indi- ana, and North Carolina. U.S. Census Bureau, Characteristics of the Population. Washington, D.C., Government Printing Office, 1970. 20 In order (noncoastal States in italics), Nevada, Florida, Arizona, Alaska, California, Maryland, Colorado, Delaware, New Hampshire, Hawaii, Connecticut, and Washington, ibid. period 1960-70, 11 had growth rates below the average, and only 5 reported a net loss in popula- tion. Where population losses were reported during the decade, they tended to concentrate in the south- eastern counties of Texas, several counties in Georgia, South Carolina, North Carolina, Virginia, and in the southernmost counties of Maryland. The concentration of people in metropolitan areas is clearly in the coasts (fig. 4-1). By the year 2000, it is projected that about 45 percent of the citizens living in metropolitan areas will be within 100 miles of the East Coast, 16 percent in the Gulf and 30 percent on the West Coast. 21 Population statistics for the "coast" are subject to both definitional and statistical ambiguities. The basic census tracts are defined by either county (or parish) units in the rural areas, and the Standard Metropolitan Statistical Area (SMSA) for cities and their suburbs. The county and SMSA census tracts can distort the population statistics because they are si U.S. Congress, Senate, Committee on Commerce, op. cit. note 16, p. 39. rv-5 New York, NY. Los Angeles-Long Beach, Calif. Chicago, III. Philadelphia, Pa.-N.J. Detroit, Mich. San Francisco-Oakland, Calit. Washington, D.C.-Md.-Va. Boston, Mass. Pittsburgh, Pa. St. Louis, Mo. -III. Baltimore, Md. Cleveland. Ohio Houston, Tex. Newark. N.J. Minneapolis-St Paul, Minn. Dallas, Tex. Seattle-Everett, Wash. Anaheim-Santa Ana-Garden Grove, Calit. Milwaukee, Wis. Atlanta, Ga. Cincinnati. Ohio-Ky. Palerson-Cliffon-Passaic, N.J. San Diego, Calif. Buffalo, NY. Miami, Fla. KansasCity, Mo.-Kans. Denver, Colo. San Bernardino-Riverside-Ontario. Calif. Indianapolis, Ind. San Jose, Calif. New Orleans, La. Tampa-St. Petersburg, Fla. Portland, Oreg.-Wash. I INSIDE CENTRAL CITIES OUTSIDE CENTRAL CITIES 5 6 7 MILLIONS OF PERSONS Figure 4-1. — Standard metropolitan statistical areas of 1 million persons or more, 1970 (ranked by size). Source: 1970 U.S. Census of Population, U.S. Department of Commerce, Bureau of the Census. IV-6 geographical entities that do not conform neatly to the definition of "coastal." The definition of coastal itself is ambiguous with regard to the identification of population patterns. To designate a State, county, or SMSA as a "coastal" unit suggests a degree of involvement with coastal or Great Lakes waters. Traditionally the "coastal re- gion" has been considered to extend inland as far as the effects of the ocean tide can be detected. This makes Washington, D.C., a "coastal city" because the tide affects the Potomac River as far as the old port city of Georgetown, a section of Washington. But to residents of the Washington area, the city is hardly coastal; the coast in any real sense is a 3-hour drive to Rehoboth, Del., or Ocean City, Md. There is a similar situation involving Houston, Tex. About 40 miles inland, the city is classified as coastal be- cause of its connection to Galveston Bay by the Houston Ship Channel. But Galveston, a city on a coastal island, is more clearly the "coastal" city than its larger neighbor Houston. It is often stated that "more than one-half the people in the country live within 50 miles of the coast." The statement is misleading because it is based upon census figures which indicated that in 1970 "about 53 percent of all . . . people now live in counties which lie at least partly within 50 miles of the Nation's coastlines," [Emphasis added.] 22 Therefore, people residing more than 50 miles from the coast are included in the county statistics making up the census totals. Six hundred counties have a portion within 50 miles of the coast; only 400 actually touch the coast. On the other hand, there are counties which touch the coast and are in- cluded in "coastal" population statistics, but extend far inland. Jefferson County in the Florida pan- handle is one such case. The 400 counties included in table 4-2 (at end of chapter) are considered to be coastal by NOAA's Office of Coastal Zone Management, drawn from program submissions by the States. The final list will probably be smaller, because States have initially selected larger coastal planning areas than will be included in their final definition of the coastal zone under their coastal management program. Thus, Washington State listed 17 counties in the initial list compiled by its coastal zone office and 15 in the final definition of its coastal territory. The population in the 400 counties designated by the State's coastal programs was 85,489,421 in 1970, or 42 percent of the Nation's population of 203.3 million. By contrast, 107 million persons lived in the Census Bureau's list of 600 "coastal" counties. Coastal Zone Management Background The concept of coastal zone management devel- oped in the late 1960s in response to the accelerating use of coastal resources. Pressures from industrial, commercial, and residential users were growing. The judgment was that the existing governmental appara- tus to deal with such pressures — Federal, State, and local — was inadequate. "Something must be done," concluded the Stratton Commission in its chapter on Management of the Coastal Zone. 23 Our Nation and The Sea, released at the time the Nixon Administration took office in 1969, was one of at least five sources that identified the need for a revised system of decision-making about future uses of the coastal region. Similar recommendations came from the Marine Sciences Council, a Cabinet- level council headed by the Vice President; from the estuary studies prepared by the Department of the Interior in 1969 and 1970 — the National Estuary Study and the National Estuarine Pollution Study; and from the recommendations of the American 22 U.S. Department of Commerce, Census Bureau, Press Re- lease, Glenn M. Hearin, 29 November 1970. 23 Our Nation and The Sea, op. cit. note 1 p. 49. Law Institute (ALI) for a Model Land Development Code. 24 The concept of coastal zone management, and other forms of land-use planning and resource regu- lation that have been proposed, is predicated on the police powers that reside in the sovereignty of the States. In the past most States have delegated this inherent power to municipal and county govern- ments. While some State constitutions transferred these policy powers to the local governments, most States enacted enabling statutes to execute the trans- fer of zoning power. Piecemeal planning and the failure of local zoning and regulatory authorities to exercise coordinated control over the coastal region contributed to the stated need for comprehensive planning and regulation in the coastal region. The basis of coastal zone management was to be the re- coupment of the State powers to control some uses of land and waters in the coastal margin, based on an areawide perspective that would transcend the fragmented boundaries of local government. A re- gional or interstate approach also was contemplated. 2* The American Law Institute. A Model Land Development Code. Philadelphia, American Law Institute, 1971. IV-7 At least part of the motivation for centering a coastal management approach in State government was fear on the part of States that direct Federal in- volvement might be the alternative. A number of coastal States, particularly those on the East Coast and the Great Lakes, had enacted single-purpose wetland protection laws to stem the loss of these areas to development and to reduce coastal erosion. Building on these initiatives by the States themselves, coastal zone management was to extend similar State controls to all coastal-related land use in a comprehensive manner. It was to be a general purpose program which would apply to all significant activities and all areas within the defini- tion of "coastal zone," rather than single-purpose legislation or loosely coupled regulatory programs. The coastal zone management approach repre- sented a departure in one major regard from pre- vious Federal programs. The program was to base its contols on a consideration of the coastal resource as an entity. That is, the policies which the individual States were to adopt were to be based on a reasoned look at the entire range of values contained in their coastal lands and waters. This comprehensive ap- proach contrasts with customary single-use or single- resource regulatory programs. The proposals for coastal management came at a time markedly different from today. The period when the concept of coastal zone management was conceived was at the height of the "environmental movement." It also coincided with the Santa Bar- bara oil spill of January 1969, an event which came at a time of increased public sensitivity to the nat- ural environment, and through extensive media cov- erage, indelibly impressed the public as to the vulnerability of the coastal environment. The oil spill added a sense of urgency to the issue of protecting coastal resources. The Stratton Com- mission had termed the siutation a "crisis." 25 The National Estuary Study sounded its own alarm: 2e "Estuaries are in jeopardy. They are being damaged, destroyed and reduced in size at an accelerating rate by physical alteration and pollution. They are favorite places for industry, which finds the land cheap, water transportation easy, and waste disposal convenient. They are also favorite places for residential developers who find it ex- ceedingly profitable to dredge and fill an estuary, and thus destroy part of it in order to appeal to affluent Americans to live near the water in houses which are accessible by both boat and automobile." The idea of a Federal grant-in-aid program to a State-level office to prepare and administer coastal zone management programs won broad support. The Nixon Administration initially endorsed the idea and introduced legislation. In testimony on December 3, 1969, Secretary of the Interior Walter Hickel testi- fied: 27 "[The National Estuarine Pollution Study] concludes that our estuaries are seriously polluted and that the unwise use of the lands and waters of our estuarine zones not only contributes to this pollution, but is rapidly destroying valuable natural re- sources. While the statutory directive was to study the estuarine zones, the findings concluded that the management problems of our estuaries relate directly to the entire coastal zone, and that any management system must deal with the coastal zone, and its entirety." There was near-unanimous agreement on the con- cept of a Federal coastal zone management program, although the National League of Cities objected on behalf of local governments. 2 " The subsequent de- bate centered not on the merits of coastal zone man- agement, but on whether the program should be in the Department of the Interior or the Department of Commerce and whether it should be a component of an overall national land-use program, which had also been proposed. The Nixon Administration en- dorsed the latter approach in opposition to a separate coastal program; during the Watergate period sup- port for a land-use bill was withdrawn. President Nixon approved the National Environ- mental Policy Act (NEPA) on January 1, 1970, and declared the coming 10 years to be the "environ- mental decade" in which the country would begin to make up for past misuse of the environment. Major additions to the Clean Air Act were ap- proved in 1970. The Federal Water Pollution Con- trol Act Amendments were approved in 1972. Legislation was enacted in 1972 placing curbs on ocean dumping in response to a public furor over poison residue disposal off the Atlantic Coast and other similar occurrences. It was in this atmosphere that the Congress con- sidered and enacted the Coastal Zone Management Act of 1972 (CZMA). The list of bills signed on the same day as the coastal management program indi- cates the national mood: Consumer Product Safety Act, Marine Mammal Protection Act, Noise Control Act, Ocean Dumping Act, and legislation establish- 25 Panel Reports, volume 1, op cit. note 1, p. III-145. 2« U.S. Department of the Interior, op. cit. note 3, p. 2. 27 U.S. Congress, House, Committee on Public Works, Testi- mony, December 3, 1969. 28 U.S. Congress, Senate, Committee on Commerce. Legislative History of the Coastal Zone Management Act of 1972, as amended in 1974 and 1976. Washington, D.C., Government Printing Office, 1976, p. 381. IV-8 ing the Gateway National Recreation Area in New York, N.Y., and the Golden Gate Recreation Area in San Francisco. Concern for the Nation's environment continues today; however its emphasis has been modified by other national priorities. Economic conditions, un- employment, and energy supply/demand have be- come the top priority items on the Nation's agenda since 1972. For instance, industries allege that en- vironmental regulations are costing jobs, delaying the development of new energy supplies, and other- wise contributing to the recession of the mid-1970s. Enforcement of environmental laws has become in- creasingly difficult. Pollution control deadlines have been extended, and standards lowered in some cases. Although The Coastal Zone Management Act was enacted at the apex of the environmental movement, its implementation spanned a period during which energy and economic problems have forced the Nation to restructure its priorities in a more prag- matic fashion. Some energy and economic problems led to increased pressures on the coastal regions. The administrator of the Commerce Department's National Oceanic and Atmospheric Administration (NOAA), in reviewing a General Accounting Office report on the status of coastal zone management in 1976, stated: 29 "The political climate for programs per- ceived as environmental in their thrust and those which involve additional govern- mental intervention and regulation is much harsher today than when the Coastal Zone Management Act was passed four years ago. States with coastal zone legis- lation on the books at that time are now fighting to prevent repeal of that legisla- tion. In no case has preexisting state coastal legislation been strengthened. Without doubt, passing new State coastal legislation today is a much more difficult task than the framers of the Coastal Zone Management Act of 1972 envisioned." North Carolina illustrates the changing political climate in the States. The passage of the North Caro- lina Coastal Area Management Act in 1974 was seen as a landmark in the coastal zone management program. 30 Key to the North Carolina Act is the authority for a Coastal Resources Commission to name "areas of environmental concern," in which development would require either a local or State permit, depending on size. Such new development would have to be in accordance with a locally pre- pared and State-approved county coastal plan. In 1977 the North Carolina Act came under serious attack in the State General assembly. The State Senate considered a bill repealing the coastal act. In the House a bill making major modifications to the basic act and curbing the authority to name "areas of environmental concern," was supported by the State coastal office as a compromise measure, and was adopted. The legislature adjourned with the State statute still intact. Despite the harshness of the climate, coastal legis- lation has been enacted in a number of States such as Alaska, Alabama, California, Hawaii, Louisiana, and South Carolina. These acts have to be examined carefully to see how far they go toward being com- prehensive State coastal acts. For instance, the 1977 passage of a State Coastal Act in South Carolina is cited as one of the current successes of the national program. The principal controls in the act are for a State permit system governing wetlands alteration. The Act also contains a provision countenancing suits against the State by individuals who feel they have a claim to shore areas down to the mean high tide line. Coastal Zone Management Act of 1972 as Amended National Policy In enacting the Coastal Zone Management Act of 1972, the Congress identified five elements of na- tional policy which form the basis for the Federal CZM program. They are: 31 • to preserve, protect, develop, and where possible, to enhance, the resources of the Nation's coastal zone . . .: 29 U.S. General Accounting Office, Report to the Congress by the Comptroller of the United States. The Coastal Zone Man- agement Program: An Uncertain Future. Washington, D.C., Government Printing Office, 1976, p. 101. 30 For an account of the North Carolina experience, see "How North Carolina Came to Pass a Coastal Zone Act," Marine Technology Society Journal 8 (10), p. 9. si Coastal Zone Management Act of 1972, 16 U.S.C. 1451 et seq. to encourage and assist the States to exercise ef- fectively their responsibilities in the coastal zone through development and implementation of man- agement programs . . . ; for the Federal agencies engaged in programs affecting the coastal zone to cooperate and partici- pate with State and local governments ... in ef- fectuating the purposes [of the Act]; to encourage the participation of the public, of Federal, State, and local governments and of re- gional agencies in the development of coastal zone management programs; and to encourage cooperation among the various state and regional agencies, including the establishment of interstate and regional agreements, cooperative rv-9 procedures, and joint action particularly regarding environmental problems. Thus, the objectives of the Act are to: (1) pre- serve, (2) protect, (3) develop, and (4) enhance and restore, where possible, the coastal resources. The mechanism to achieve these objectives is through "encouragement" and "assistance" to the States. Co- operation of the Federal agencies with the States is pledged to achieve the objectives of the Act. The general public is to be a participant in the develop- ment of coastal zone management programs. Inter- state and regional approaches to resource manage- ment are encouraged. Financial Assistance The Secretary of Commerce is authorized to award annual matching grants to the coastal States for the purpose of assisting in the development of coastal zone management programs. Financial as- sistance is provided in three tiers according to the progress of the States in meeting the Federal guide- lines: • Development Grants— Section 305 of the CZMA authorizes the award of four annual grants, up to 80 percent, to the participating States to aid in preparing management programs. All of the coastal States (including the Great Lakes) and Guam, Puerto Rico, and the Virgin Islands have participated. • "305 V2" Grants — Interim grant authority was provided in the Coastal Zone Management Act Amendments of 1976 (P.L. 94-370) to allow two additional grants to States that have com- pleted the design of a management program, but require additional time to put it into effect. Two States received assistance under this provision through fiscal year 1977. • Administrative Grants — Eighty percent grants may be awarded to States for the operation and administration of an approved management program that meets the requirements of the regulations and has been formally submitted and approved by the Secretary of Commerce, (Sec. 306). Three States — California, Oregon, and Washington — have been approved under Sec. 306 through September 1977 — California's program is less than complete, because of a pending suit. States may pass through a portion of their admin- istrative grants to a local government. Statewide agency, regional agency, or an interstate agency to implement the State program with the approval of the Secretary of Commerce. Programs can be pro- posed for geographic segments of States. Strengthen- ing of local planning efforts is one of the principal accomplishments cited by the Office of Coastal Zone Management in the 5 years of the program's exist- ence. This comes about in States where pass-through funding has taken place. Otherwise the effect has been to strengthen to a degree the planning capa- bility at the State level. Coastal Zone Program Requirements A coastal zone management program must have nine elements to meet the minimal substantive re- quirements under the Section 305 development grant process. 32 • identification of the boundaries of the coastal management zone; • definition and identification of land and water uses that have a significant impact on coastal waters and that will be permitted in the coastal zone; • designation and inventory of areas of particular environmental concern; • setting priorities for uses, especially those of re- gional, Statewide, or national significance, in par- ticular areas of the coastal zone; • establishing procedures and organizational struc- ture for managing the coastal zone; • identification of the authorities the State will use to exercise control over land and water uses; • description of the State organizational structure that will operate the management program once it is approved; • definition of "beach" and a planning process deal- ing with access to public coastal areas; and • planning of processes for dealing with energy facilities and their impacts, and for dealing with coastal erosion. The Coastal Zone Management Act was clearly intended by Congress to emphasize control of land and water use, and not mere planning without the capacity to implement the program and plans. The preamble of the CZMA 33 says that States should: ". . . exercise their full authority over the lands and waters of the coastal zone by . . . developing land and water use pro- grams for the coastal zone, including uni- fied policies, criteria, standards, methods, and processes for dealing with land and water use decisions of more than local significance." To qualify for approval under the provisions of Sec- tion 306, a State program must meet five specific requirements: • The State must have a coordinating mechanism with affected local governments, which must in- clude provisions of a notice when a State decision would conflict with a local zoning ordinance and provide a 30-day comment period; 32 Ibid., Sec. 1454(b). 33 Ibid., Sec. 1541(h). IV- 10 • The governor must designate a specific State agency to administer the program; • The State must demonstrate that it has given, and will continue to give, adequate consideration of the national interest in siting such things as energy facilities, in order to prevent a State from arbi- trarily barring facilities from its coastal region; • Provision must be made for preserving or re- storing particularly valuable coastal areas; and • States must have selected one of the following three techniques for controlling land and water uses in the coastal zone: (1) establishment of criteria and standards at the State level for im- plementation by local entities, (2) direct State land and water use planning and regulation, or (3) State administrative review for consistency of any development within the coastal zone, with power to approve or disapprove. In addition, the designated management agency must have authority to acquire property through condemnation if necessary to achieve conformance with the management program. State programs may be approved for geographical segments of the coast with the approval of the U.S. Secretary of Com- merce in order to protect coastal regions that require immediate action. Federal Consistency To round out the coastal States' authority for regulating the use of land and water in the coastal zone, Section 307 of the CZMA provides a mechan- ism for ensuring that Federal projects and actions by the Federal agencies conform with approved State coastal zone programs. Sections 307(c)(1) and (2) require that activities, including development projects, significantly affect- ing the coastal zone and conducted or supported by Federal agencies shall be consistent with approved State programs to the "maximum extent practica- ble." Section 307(c)(3)(A) provides that Federal li- censes and permits for activities significantly affect- ing land and water uses in the coastal zone may be granted only if the State certifies that the activity complies with and will be conducted consistently with its coastal zone program. This is perhaps the most significant consistency provision. Corps of Engineers' dredge or fill permits under Section 404 of the Federal Water Pollution Control Act Amend- ments and a number of Federal permits required for energy facilities in the coastal zone will be subject to this provision. Thus, the States have important leverage on Federally-registered private activities affecting the coastal zone, even if such activities are located outside the described zone. Section 307(d) prohibits Federal agencies from approving State and local grant applications for activities significantly affecting the coastal zone that are inconsistent with the State's approved coastal zone management program. An activity for which a Federal license, permit, or grant is required is sub- ject to the consistency provision, even though located outside the coastal zone, as long as the activity sig- nificantly affects the coastal zone. There are differ- ences in interpretation of this section among Federal agencies. The operation of these provisions combined with the financial support provided for developing and administering coastal zone programs are the prin- cipal inducements for States to participate in the coastal management program. Without the prospect of "Federal consistency," many Federal projects and actions would be beyond the control and regulation of the coastal States. Even with the consistency pro- vision, a number of Federal activities may be beyond State coastal zone programs. The U.S. Secretary of Commerce can override a State's finding of inconsistency with regard to a Fed- eral license, permit, or grant, if it is found that the project is "necessary in the interest of national secu- rity" or that the activity is in fact "consistent with the objectives of this . . . [Act]." The implementing regulations attempt to confine the Secretary's over- ride to situations where national interest or security concerns outweigh coastal management objectives. Furthermore, a specific exclusion makes it clear that the Act as a whole does not apply to "lands, the use of which is by law subject to the discretion ... of the Federal Government." 34 Consistency does apply to activities on Federal lands which affect a coastal zone. These variances, while necessary to preserve the flexibility of the Federal agencies to conduct busi- ness in the national interest, may seriously limit the control that States can exercise over Federal activ- ities. They have, in fact, been described as "escape hatches." 35 Legal scholars have identified several problems with the "consistency" concept, and the legislative history of the Coastal Zone Management Act does little to clarify the precise way Congress intended its provisions to operate. 36 The legislative language of Section 307 is subject to wide interpre- tations, and those uncertainties probably will persist until defined by the courts. Under the 1972 CZMA, there was uncertainty about the status of Outer Continental Shelf (OCS) oil and gas exploration, development, and produc- tion activities with respect to the consistency provi- sions. The Coastal Zone Management Act Amend- ments of 1976 appended special consistency provisions for these OCS oil and gas activities (Sec- 3-t Ibid., Sec. 1453(a). 35 William C. Brewer, Jr. "Federal Consistency and State Expectations," Coastal Zone Management Journal 2, 1976, p. 322. 36 Richard G. Hildreth. Natural Resources Lawyer. American Bar Association, 1977, p. 216. IV-11 tion 307(c)(3)(b)). The effect of the 1976 amend- ments was to expedite the determination of "consistency" by requiring a certification of con- sistency with State coastal zone management pro- grams by the lease holder for any exploration, development, or production plan in the OCS. Con- currence by the State within 6 months is required, subject to an override by the Secretary of Commerce for national security reasons or based on a finding of substantial compliance with the objectives of the Act. If the State's objections are sustained, a revised OCS plan must be submitted under an abbreviated review schedule. If certification of consistency is accepted by the State without objection or if a State's objection is overridden by the Secretary of Commerce, any activity described in detail in the exploration, development, or production plan, and conducted in accordance with the plan can be carried out without further consideration by the State. From the standpoint of the States and local com- munities, the detail of information in the OCS plans is key. If extensive, the State and communities can prepare to deal with the anticipated impacts. If in- formation is sketchy, approval may be given to open- ended documents and control over the later imple- mentation effectively waived once consistency is agreed to by the States. The Department of the In- terior has attempted to deal with this potential prob- lem in its regulations. 37 Amendments to the Outer Continental Shelf Lands Act of 1953, being considered by Congress, clarify the relationship between coastal States and the Department of the Interior, which is the offshore licensing agent. Coastal Energy Impact Program Acceleration of OCS oil and gas development in the face of rapidly increasing oil imports has prompted the coastal States to seek additional funds from the Federal Government. The Coastal Zone Management Act Amendments of 1976 established a program of grants, loans, and bond guarantees under Section 308 of the CZMA. To qualify. States must be receiving Section 305 (development) or 306 (administrative) grants, or, in the Secretary of Com- merce's opinion, be developing a management pro- gram "consistent with the policies and objectives of the Act (Sec. 303)." Two interlocking forms of assistance are provided through the program: (1) a 10-Year, $800 million Coastal Energy Impact Fund, and (2) formula grants authorized at $50 million a year for 8 years. Coastal Energy Impact Fund This is a revolving fund established under Section 308(c) and (d) and is the primary source of assist- ance to coastal States and local governments affected by new or expanded coastal-dependent energy activ- ity. The Fund is disbursed in five modes: 3S • Loans to assist in providing new or improved pub- lic facilities and services made necessary by coastal energy activities; • Guarantee of bonds issued by a coastal State or locality to obtain funds to provide new or im- proved public facilities and services required by coastal energy activities; • Repayment grants to meet credit assistance obliga- tions under a loan or bond guarantee in cases where the coastal energy activity involved failed to provide adequate revenues to offset the indebt- edness. • Grants if a State suffers loss of valuable environ- mental or recreational resources as a result of coastal energy activities, the cost of which cannot be attributed to or assessed against any identifi- able source and cannot be paid for through other Federal programs; and • Grants to study and plan for economic, social, and environmental consequences resulting from the siting, construction, and operation of new or ex- panded energy facilities in the coastal zone. The U.S. Secretary of Commerce must allocate funds for loans and bond guarantees among the States according to: (1) employment and related population attracted to the State by new coastal energy activities and (2) standardized unit costs for public facilities and services. Annual Formula Grants to Coastal States Each State's formula grant is based upon the fol- lowing proportion calculated from data of the pre- vious fiscal year: • OCS acreage newly-leased adjacent to a coastal State relative to the total OCS acreage newly- leased (one-third); • Volume of oil and natural gas produced adjacent to the State relative to the total volume produced on the OCS (one-sixth); • Volume of OCS oil and gas first landed in a State relative to all OCS oil and natural gas landed in all coastal States (one-sixth); and • Number of individuals in new OCS-related em- loyment relative to the total number of individuals who obtain new OCS-related employment in all coastal States (one-third). The use of formula grants is restricted to: (1) retirement of State and local bond guarantees where there is an inability to repay, (2) prevention, reduc- tion, or amelioration of unavoidable loss of a valu- able ecological resource as a result of an energy •'" See 30 Code of Federal Regulations Section 250.34 and 30 CFR Part 252. as No more than $50 million of the total $800 million can be expended for planning and environmental grants. IV- 12 activity if blame cannot be determined, and (3) plan- ning for public utilities and services required by OCS activities if grants from the Coastal Energy Im- pact Fund are inadequate. Retirement of guaranteed bonds has priority in the expenditure of funds obli- gated under the formula grant program. Formula grants are intended to be a secondary source of funding for States and communities. Implementation of the Coastal Zone Management Act The Coastal Zone Management Act is an experi- ment in federalism. It involves an intricate pattern of intergovernmental relationships and a redistribu- tion of political power among State, Federal, local, and regional governments. Within the States them- selves, State and local interests can conflict; and, even among State agencies, differences in perspec- tive and constituencies often result in disagreement. For Federal agencies faced with the prospect of having to accommodate State programs in the per- formance of their activities, the coastal zone manage- ment programs hold the possibility of delays, added expense, constraints as to what they see as their mandate under law, and additional administrative problems. As for interstate coordination or regionali- zation, the concept is highly touted, but regional governments or interstate agencies with adequate delegated authority are rare. These problems in im- plementating the CZMA are receiving increased attention from inside and outside the Federal Gov- ernment. Federal Agency Involvement Federal agencies, other than NOAA's Office of Coastal Zone Management, are directly involved in administering the CZMA at two levels: (1) consult- ing, reviewing, and commenting on State programs prior to approval of an administrative grant under Section 306, and (2) complying with the Federal consistency requirements of Section 307 subsequent to approval of the State program. Complicating this review is the fact that regional offices first review State program documents and then the Washington headquarters does so; the views at the two levels are not always the same. With regard to the first responsibility, the Secre- tary of Commerce is required to "consult ... co- operate with, . . . and coordinate . . . activities with other interested Federal agencies," in carrying out the duties prescribed by the Act. 30 A State program cannot be approved "unless the views of Federal agencies . . . have been adequately considered." In the case of serious disagreement between Federal agencies and the State, the Secretary of Commerce in cooperation with the Executive Office of the President will mediate. States are further constrained by the programs of the Federal agencies to the extent that the CZMA does not "diminish either Federal or State jurisdic- tion, responsibility or rights in the field of planning, development, or control of water resources, sub- merged lands, or navigational waters," nor can it affect an interstate agreement or interstate agency. 40 Similarly, the operation of the Federal Water Pollu- tion Control Act and the Clean Air Act and their related State programs are to be coastal zone air and water requirements. Although the Coastal Zone Management Act was approved in 1972, Federal agencies have only re- cently become concerned with or intimately involved in the development of the State coastal zone manage- ment programs. Washington was the first State pro- gram submitted and approved (June 1976) under the authority of the CZMA; thus, it was the first subjected to serious review by Federal agencies. The review and comments led to an extended delay in approval of the program and modification of the original submission as a result of some of the Fed- eral reviewers' comments. 41 The problem of Federal agency involvement late in the program development process, coupled with lingering uncertainties con- cerning the scope of review and influence which these agencies have under the CZMA, will continue to recur. There is an indication that Federal agencies are not satisfied with simply reviewing the manage- ment process; they also want to shape if not deter- mine the content of the programs by requiring, for example, that sites be designated for energy facil- ities. 42 This was evident in the Washington case: 43 ". . . with Maine, Washington and other states now beginning to submit their coastal management programs to the OCZM for review, this fledgling agency [OCZM] is in something of a dilemma. On the one hand, it does not want to over- step its statutory mandate by second- guessing states on matters such as energy planning. On the other hand, it is being pushed by the FEA (Federal Energy Ad- ministration) [now the Department of Energy] and other agencies to reject state 39 Coastal Zone Management Act, op cit. note 31, Sec. 1456(a). 4c Ibid., Section 1456(a). *i Marc Hershman and Robert Goodwin. Coastal Resources Program, University of Washington, Ports and Coastal Man- agement, draft manuscript report. Seattle: University of Wash- ington, 1977. 42 Joseph M. HeikofT. Coastal Resources Management: Insti- tutions and Programs. Ann Arbor: Ann Arbor Science, 1977, p. 15. 43 Luther J. Carter. "Energy and the Coastal Zone: Pulling and Hauling Among the Feds," Science 188 (1975), p. 1288. rv-13 plans that do not specifically provide for energy facility siting. In instances where the omission is clearly arbitrary, the OCZM will be on safe legal ground in complying with the agencies' demand. Ab- sent such arbitrariness, the OCZM either will have to stretch the letter of the law (as it understands the law) and require program revisions, or it will have to re- ject the energy agencies' demands." In dealing with the issue, the State of Washington noted that the views of Federal agencies are varied and sometimes conflicting and, rather than adopt specific suggestions, maintained that the coastal pro- gram need only provide a process to accommodate the various views. The final environmental impact statement on the Washington program regarding the national interest in facility siting declared that the State was not obliged to plan for certain facilities, only that national concerns be included in State planning at an early stage and not arbitrarily ex- cluded. In exchange, the State expected to be con- sulted on Federal agency projects or decisions taken in the national interest. 44 (A separate energy siting council exists in Washington.) States adjacent to potential offshore oil and gas resources, or which are strategically located with regard to oil and gas imports, processing, and trans- shipment, are likely to come under close scrutiny by the Department of Energy and the Department of the Interior. To the extent that other States' pro- grams may affect use of coastal areas of wide-scale national importance, they too will be subjected to critical review by resource management agencies. The discussions between Federal mission agencies and State coastal programs (and NOAA) point up one of the problem areas of coastal management. While the national program envisioned a Federal role restricted to the process by which States and communities were going to guide future use of the coasts, it is difficult not to become involved in ques- tions of substance. The impact of the Federal consistency provisions on the programs of Federal agencies is yet to be determined. Until specific cases are before the ad- ministrative bodies and the courts, the precise mean- ing of the provisions in Section 307 are uncertain. Implementing regulations have taken more than 18 months to prepare. To what extent the Secretary of Commerce will intercede to override will also be determined on a case-by-case basis. State Agencies and the Administration of Coastal Programs There is little doubt that the expectations of the proponents of the Coastal Zone Management Act were for a strong agency and central authority in the State government to administer the coastal zone program. In 1972, the Coastal Zone Workshop prescribed a strong, independent State agency to administer coastal zone programs: 45 "The State coastal zone authority should be established as an independent agency, with its expertise and primary responsibil- ity exercised in cooperation with other State agencies involved in the coastal zone. Management programs should view the coastal zone as a complete, natural system and not be restricted by political boun- daries." The Workshop's findings were a reaffirmation of the Stratton Commission's conclusions. 46 Nevertheless, neither the actual CZMA nor the rules and regulations promulgated under the Act specify a detailed institutional structure for coastal management by the States. Federal requirements are concerned more that the agency have particular functions and powers than that it have a specific form. 47 While the governor of a State is required to designate "a single agency to receive and admin- ister the grants for implementing the management program" under Section 306, there is no specific requirement that the agency must possess the sole regulatory authority for administering the substan- tive provisions of the coastal program in that State. The CZMA requires a description of the organiza- tional structure proposed to implement the manage- ment program, including the responsibilities and interrelationships of local, areawide, State, regional, and interstate agencies in the management process. 48 Furthermore, the Act writes in a role for local gov- ernment, recognizing even in 1972 the political diffi- culty inherent in the State override approach. While the CZMA is explicit in its requirements for States to consult and coordinate with Federal, local and interstate agencies, it is vague about the relationships between the designated coastal manage- ment agency and the other resource management and regulatory agencies in the State. The tacit as- sumption, as suggested by the legislative history of the CZMA and subsequent statements of its spon- sors, is that the designated coastal management agency would be a strong guiding force developing « U.S. Department of Commerce, State of Washington Coastal Zone Management Program. Final Environmental Impact State- ment. Washington, D.C., NOAA, Office of Coastal Zone Manage- ment, 1976, p. 100. *5 Bostwick Ketchum. op. cit. note B, p. 31. ts Panel Reports, volume 1, op. cit. note 1, p. Ill— 56. •"Joseph M. Heikoff, op. cit. note 42, p. 28. 48 Coastal Zone Management Act, op. cit. note 31, Sec. 1454(a)(6). IV-14 policy and administering the State coastal zone man- agement program. 49 The character, efficiency, and strength of the State agencies that have been assigned responsibilities for developing or administering coastal management programs vary considerably among States (table 4-3). The "adoption" of a coastal management pro- Table 4-3. — Personnel and contracting activity of selected State coastal zone programs involving Fed- eral funds l [As of July 21, 1977] Contract amounts Full-time Part-time budgeted State personnel personnel FY 1977 California a California Coastal Commission 12 3 $249,097 Florida Department of Natural Resources b 19 482,870 Maine State Planning Office Massachusetts Executive Office of Environmental Affairs 11 29 1 1 382,436 426,539 Michigan Department of Natural Resources 10 18 302,870 North Carolina Department of Natural & Economic Resources 26 2 232,325 New Jersey Department of Environmental Protection 29 4 266,900 New York Department of State, State Planning Division 27 2 1,055,973 Pennsylvania Department of Environmental Resources 4 14 232,125 Texas General Land Office 15 16 1,202,545 Washington a < c Department of Ecology 14 — 1,562,605 1 Source: Office of Coastal Zone Management, NOAA. a Additional personnel, not Federally funded, known to work on coastal zone management.. b To be changed to Department of Environmental Regulation, c In administration stage. gram by a State does not require that a State create a new coastal zone agency and endow it with op- erating authority through enabling legislation. A governor may designate an existing agency as the coastal zone agency and use existing single-purpose laws to implement the coastal zone management policies decided upon. This procedure has been termed "networking" and is the chosen course of a number of the States because it frequently requires no legislative action. No hard and fast conclusions can now be reached about the effectiveness of net- working as a management approach, yet it does not fit the earlier notion of a single, strong agency ad- ministering a comprehensive coastal zone manage- ment statute. The question about networking is whether it can provide the comprehensive approach to dealing with coastal lands and waters as a system, the original concept of the program. Can the piecing together of regulatory authorities which deal with specific as- pects of the coasts form the basis for a program that was to treat the coasts as a complex, interrelated system? The answer to the question will be one of the main tasks of any evaluation of State programs. Networking may involve simplifying the various State permit and licensing procedures. This generally entails pulling together various State-level permits, as administered by different agencies, into either a one-stop permit process or at least a more stream- lined procedure for applicants; e.g., permits for wetland alteration, wildlife protection, beach dune protection, use of submerged land, and similar specific State-controlled activities. 50 Local Government and Coastal Zone Management The Coastal Zone Management Act was based on the perception that local and municipal governments are unable to manage the coastal resources in an effective manner. The key elements of the CZMA are: (1) that it should provide unified policies, standards, and processes for managing coastal re- sources that are applicable Statewide, and (2) that it would govern land and water uses of more than local concern. Thus, power over decisions of "more than local concern" would be taken at least in part from local control and re-established at the State level through a Statewide coastal management pro- gram; specifically contemplated is a system of State review of local decisions for acceptability. The dichotomy of "local" and "more than local" has been bothersome since the inception of the coastal zone management effort. The only consoli- dated opposition to the concept of coastal zone management prior to the enactment of the CZMA came from the local and municipal governments that foresaw erosion of their control over their own development. Decisions of purely local concern would presumably be left to local governments. "Local concern" is intuitively defined as those deci- sions that have no effects beyond the boundaries of the local political jurisdiction. The ambiguities in distinguishing local decisions 49 Senator Earnest F. Hollings. Letter to the editor, The Wash- ington Post, 19 March 1974. so Interview with William Matuszeski, State Programs Office, Office of Coastal Zone Management, NOAA, Washington, D.C., 21 July 1977. IV- 15 from non-local ones, and the basic resentment to- ward State involvement in local decisions, have per- haps worsened rather than improved since the adop- tion of the CZMA. The General Accounting Office (GAO), in reviewing the coastal zone management program, found State-local relationships troubled/' 1 "In our opinion, resistance [to coastal planning efforts] exists because (1) local governments may regard coastal zone management as an example of Federal- State interference in planning decisions traditionally made by localities and (2) the public, especially coastal landowners, contend that State management programs infringe on their private property rights and affect property value by restricting the uses to which their land can be put. For instance, California has felt resistance even though the public established the State's coastal zone management by popu- lar initiative in 1972. According to State and regional officials in Michigan, there is strong local opposition to expansion of State land-use powers. A State coastal zone management program official said there has been substantial local resistance to the somewhat limited State regulatory powers that currently exist." In some States, the coastal zone program has brought about, at least on the staff level, better communication and improved relationships. In North Carolina, for instance, the State approach has been to pass through the funds for coastal cities and counties to develop the actual coastal plans. This has served to upgrade the professional plannning capabilities of the coastal governments. There has been a similar upgrading of capacity noted in Wash- ington State under the program implementation (sec- tion 306) funding there. Where there is a good working relationship between local and State pro- fessional staff, accommodations between the two levels of government can be worked out informally. This appears to be taking place in some instances under the coastal management program. The State-local relationship surfaced in the debate on the energy impact provisions of the Coastal Zone Management Act Amendments of 1976. Provision was made for local comment on any State land use or water use decision that conflicts with a local government ordinance." The House Merchant Ma- rine and Fisheries Committee report on the bill stated that the intent of the provision is to "protect the interests of local units of government." 53 This little-noticed addition to Section 306 of the original Coastal Zone Management Act represents a shift in emphasis. From the original concept that State agencies would, by virtue of their broader perspectives and non-dependence on property tax revenues, be better able to reach balanced coastal zone decisions, there seems to be emerging a trend toward providing the local governments with a stronger role in coastal decision-making in the coastal management program. The 1976 amendment reflects this trend. Consistency Provisions and State Expectations The Coastal Zone Management Act is an exer- cise in persuasion. There are no compulsory reasons why States must participate. Three provisions of the CZMA as amended offer incentives to the coastal States to enter the program: (1) development and ad- ministrative grants under Sections 305 and 306, (2) Federal consistency requirements, under Section 307, and (3) participation in the 305 and 306 grant pro- grams to assure receipt of coastal energy impact funds under Section 308. (States can qualify for such aid with their own coastal management pro- grams.) Although the requirement that Federal activities conform to State plans and objectives is an exception to the rule, it is not unique to the Coastal Zone Management Act. The Intergovernmental Coopera- tion Act of 1968, Title IV, requires that Federal aid for private development purposes be consistent with State, regional, and local comprehensive planning, "to the maximum extent possible." The prospect for a measure of control over Federal activities offshore and within the coastal region is, however, a powerful potential incentive for the States to participate in the CZMA. Whether the expectations of the States will be fulfilled will depend on the final operation of the consistency provisions through the coopera- tion of the Federal agencies and the definitions of the uncertain terms used in the Act by the court on a case-by-case basis. The provisions of Section 307 may turn out to be as pregnant with legal uncer- tainties, if not as prolific in causes of action, as the National Environmental Policy Act of 1969 (NEPA). The General Accounting Office, in reviewing the provision, labeled Federal consistency as "an un- certain prospect." GAO concluded that, 5 ' "The problem is that, notwithstanding CZMA's Federal consistency provision, 51 U.S. General Accounting Office, op. cit. note 29, p. 27. 5 2 Coastal Zone Management Act Amendments of 1976. P.L. 94-370, Sec. 306(c)(2)(B). 5 3 U.S. Congress, House of Representatives. Coastal Zone Management Act of 1976, Report No. 94-878, 94th Cong., 2d sess, Washington, D.C., Government Printing Office, 1976, p. 37. s* U.S. General Accounting Office, op. cit. note 29, p. 86. IV-16 Federal agencies operate under a variety of laws for the most part passed independ- ently of one another. Because [the Act] does not supersede or modify existing legislation or affect other congressional or executive mandates, Federal agency activ- ities will not always be consistent with State management programs. For instance, the Corps of Engineers could not comply with State coastal zone management regu- lations that are contrary to or less restric- tive than Corps policies and regulations based on other Federal legislation." On the other hand, as pointed out by GAO, some States are counting on firm and straightforward administration of the consistency provisions. They are wary of the discretionary power of the Secretary of Commerce to overrule a State's finding of incon- sistency on the basis of review of fact and substantial compliance or through the exception for purposes of national security. According to GAO, 55 "States could oppose such a determination by taking legal action through the courts. This would result in additional delays. States could express their opposition by withdrawing from the Coastal Zone Man- agement Program." Coastal Energy Impact Program Over two-thirds of the Nation's remaining oil and natural gas supply is on the Outer Continental Shelf and in Alaska. As a result of the Arab oil embargo of 1973, accelerated development of these reserves has been proposed as a means to reduce U.S. de- pendence on imported oil and gas. Most of the potential offshore reserves are in previously unex- plored areas of the Atlantic and Alaska Coasts (frontier areas). Administration proposals in 1974 to lease 10 million acres in the OCS (equivalent to the total acreage leased since Federal leasing began in the OCS in 1953) met State opposition. Questions were also immediately raised about the practicality of the plan from the standpoint of industry capacity. This lead to a coastal governor's meeting in Washington, D.C., in the fall of 1974, which was addressed by President Ford in an effort to quell the opposition. The 10-million-acre target was modified in 1975. The States were concerned with the prospect of drilling off their coast for two principal reasons. First, the federal OCS leasing program provided the States limited opportunity to participate in. the leas- ing decisions of the Department of the Interior. Second, coastal States would have to accommodate the shoreside support facilities and provide services for the employees and families of industries asso- ciated with the offshore operations — while all of the royalty payments went to the Federal Govern- ment. Sparring between the States and the Department of the Interior over the anticipated impacts of off- shore oil and gas development led to proposals to compensate the affected States or otherwise amelio- rate plan for means to accommodate the impacts from OCS development. The proposals, some of which included compensation for any impact asso- ciated with any energy facility, whether OCS-related or not, included grants, loans, and direct sharing of revenues from OCS leasing. Energy planners were concerned that recalcitrant State or local governments could block or severely limit the expansion of OCS oil and gas production. State control of the continental shelf in the territorial sea seaward to 3 nautical miles (further in the Gulf of Mexico), and the State police power over onshore siting of facilities and pipeline corridors could frus- trate Federal development of the OCS indirectly through the denial of permits or through zoning actions. Thus, the impetus for the Coastal Energy Impact Program was as much to reduce potential opposition to offshore drilling and production as it was to provide fiscal relief for possible adverse im- pacts. 58 Two congressional studies, one released immedi- ately before enactment of the CZMA amendments and the second completed at the time of enactment, reached essentially the same conclusions: Except for certain cases in the frontier areas, e.g., small, iso- lated areas such as Yakutat, Alaska, which is ad- jacent to attractive lease sale areas in the Gulf of Alaska, there will likely be little significant perma- nent disruption of the socio-economic structure of coastal regions as a consequence of offshore oil and gas development." 7 The problem to the extent that it existed, was found to be short term — a matter of revenue collection not matching early expenditures. The debate concerning energy impact aid to the States centered not on whether such aid should be provided by the Federal Government, but in what form. The "developed" States, particularly Louisiana, 55 Ibid., p. 77. so See colloquium between Senators Harry Bellmon (R-Okla- homa) and Ted Stevens (R-Alaska) in U.S. Congress, Senate, Congressional Record, Washington, D.C., Government Printing Office, July 17, 1976, p. 12816. " The first study, made by the Congressional Research Service of the Library of Congress, was released in March 1976, U.S. Congress, House Ad Hoc Select Committee on Outer Continental Shelf. Effects of Offshore Oil and Natural Gas Development on the Coastal Zone. 94th Cong., 2d sess., Washington, D.C., Gov- ernment Printing Office, 1976; the second study, compiled by the Office of Technology Assessment, was released after action on the Coastal Zone Management Act Amendments of 1976 was completed. U.S. Congress, Office of Technology Assess- ment, Coastal Effects of Offshore Energy Systems. Washington, D.C., Government Printing Office, 1976. IV-17 together with others opposed to additional Federal bureaucracy, argued forcefully for a revenue sharing or an automatic formula approach. The Ford Ad- ministration opted for a combination of loans and bond guarantees. In final form, the CZMA amend- ments creating the Coastal Energy Impact Program include grants, loans, bond guarantees, and formula grants. The major restriction on the availability of the "formula grants" for public facilities and services is that such money can only be used because of the "'unavailability of adequate financing under any other subsection" of the impact assistance program. That means that as long as loans and bond guarantees are available, grants to the States will be generally restricted to planning assistance, and compensation for environmental and recreational losses. Propo- nents of the automatic or formula grant approach had wanted funds under this provision to be avail- able for public works projects. It was on this point that the Ford Administration balked. The Administration made the difference between reliance on grants or loans a major question of principle. The loan approach was seen by its sup- porters in OMB and the Commerce Department as a precedent for any inland impact assistance pro- grams which might be contemplated and, in fact, as a broader precedent for adjustment assistance in general. The advocates of the loan-bond guarantee approach hoped the success with the coastal impact program would lead to the consolidation of other assistance programs; specifically mentioned in this discussion were aid programs run by the Department of Agriculture, Economic Development Administra- tion (Commerce), Department of Defense, Depart- ment of Health, Education, and Welfare, and Depart- ment of Housing and Urban Development. At present, however, the carefully worked out construction of the energy impact program is being revised. In dealing with legislation altering the Outer Continental Shelf Lands Act, the Congress is cur- rently discussing removing some of the restrictions on application of the "formula grant" section as well as increasing the money available through this vehicle. 58 Alterations were made by the program administrators in revised regulations issued early in 1978. Implementation of the loan provision has been delayed by a lack of agreement on the interest rate to be applied. The Office of Management and Budget recommends the official Treasury rate. The program managers contend this will effectively make the loan program useless since States and localities can by and large obtain better rates on their own without difficulty. Proponents of the automatic grant type of as- sistance for coastal States base their case in part on the fact that western States with minerals on Fed- erally owned lands receive 50 percent of the royalty income, to help compensate for the needed new governmental services required since no State rev- enue accrues for the activities on the Federal prop- erty. A second major question is whether either grants or loans for facilities and services are appropriate. That is, are the changes in communities brought about by the introduction of a heavy industry such as the offshore oil industry susceptible to being treated with Federal aid? There is evidence, as in studies of western mining towns, that the most severe impacts from large- scale energy development may be psychological. Re- searchers have come to label this the "Gillette Syn- drome," named for the town of that name, said to consist of drunkeness, depression, delinquency, and divorce. Researchers have found that planning as- sistance to help communities prepare for change is often of limited help because many rural commun- ities are hostile to planners and planning. The solution for some coastal States faced with the offshore industry for the first time has been to attempt to funnel any prospective support industry into existing urbanized areas. For instance, Massa- chusetts has proposed five coastal cities, some with chronic unemployment, as potential supply bases and has actively courted the off shore industry. A study by Princeton University's Center for Environ- mental Studies, released August 22, 1977, proposes that New Jersey locate any support industry for offshore development in Atlantic City. It further suggested that certain facilities, such as tank storage farms, be located inland from the coast, near major highways. The study also noted that the State needed to assume leadership, because local communities might, if left to make siting decisions themselves, allow environmentally damaging locations for im- mediate tax revenue benefits. 59 An argument put forth in justification of Federal aid to coastal States adjacent to offshore oil and gas operations is that the proceeds from such activity go entirely to the Federal Government, while expenses for services and facilities generally are borne by the local and State governments. The difficult factor to calculate is how much local and State revenue is generated by the onshore facilities or by the oil/gas production itself in States that tax same, and whether this revenue will keep up with expenditures. The evidence points to a short-term shortfall. There is also the question of whether a State's tax load is "fair;" in other words, does it do enough to raise revenues itself? ssH.R. 1614, Outer Continental Shelf Lands Act Amendments of 1977, Title IV. 59 New York Times, August 23, 1977. IV- 18 The most thorough study done on this question, dealing with Delaware and New Jersey, declares that after an initial shortfall, the long-run effect on States and communities is positive in terms of revenues as offset by expenses. A major exception is where one community or State gets the revenue, while an ad- joining area has the expenses; in such a case the long-term as well as short-term effect would be negative. In its study, Coastal Effects of Offshore Energy Systems, dealing with impacts that might be expected in coastal Delaware and New Jersey, the Office of Technology Assessment (OTA) concluded: 60 "OTA has prepared a fiscal analysis of costs and revenues from (Outer Conti- nental Shelf) activities in the States of New Jersey and Delaware assuming pro- jected development associated with discov- ery of 1.8 billion barrels of oil in the Baltimore Canyon Trough. The fiscal analysis concludes that, in general, per capita tax revenues from OCS-related activities would be considerably higher from the fourth year onward than state- wide per capita revenues from other sec- tors under the assumptions of the study ... If, however, most of the support areas and OCS employees were located in one State and the landings of oil and natural gas were made in another, the results would be very different . . . "In 1972, per capita state and local rev- enues in New Jersey were $847. Before any major onshore investments occurred, revenues produced by OCS activities would be primarily from individuals which average $512 per capita in New Jersey. Assuming that per capita expenditures for public services are about equal to total per capita revenues of $847, per capita expenditures to support OCS-related popu- lation would exceed the per capita rev- enues from OCS activities by about $335 during the first two years of development. The gap would decrease to $225 in the third year as some business taxes accrued. The picture would change in the fourth year when major onshore investments would be made for pipelines, tank farms, and natural gas processing plants. In the year when these investments would be made, the State would receive revenues from a real estate transfer tax and from its sales tax (or equivalent use tax). Since these are assumed to be concentrated in the fourth year, the per capita tax rev- enue is calculated to jump nearly $11,000 in that year in New Jersey. The jump would not be so pronounced in Delaware where there is presently no sales tax. In subsequent years, the property tax would be the main source of revenue. Property tax revenues would decline on a per cap- ita basis for a period because they would be divided among an increasing direct population engaged in offshore construc- tion and development drilling. Finally, per capita property tax revenues would begin to rise in the ninth year when com- pletion of construction would lead to a decrease in OCS-related population. For all years after the fourth year, per capita revenues from OCS activities would sub- stantially exceed the statewide average." The OTA study supports the position of those who advocate loans and bond guarantees to pro- vide needed facilities and services early, and use of revenues to pay them off in time. The study suggests that loans need only be short-term because, as off- shore fields are developed, revenues will very soon come to exceed expenditures by sizable margins. This is so because the support facilities needed for the offshore industry are heavily capitalized and produce high revenues with relatively few workers after they are installed and operating. A recent study on OCS issues published by the Council on Environmental Quality contains evi- dence that community support for the introduction of the offshore industry is fairly considerable. In Kenai, Alaska, for instance, an isolated rural community of about 1,000 has been transformed by production of oil and gas resources in State-con- trolled waters in nearby Cook Inlet. The com- munity went through a rapid expansion and then decline after initial construction of facilities was completed. New community services were required, as was additional housing. The evidence is that the area absorbed the four-fold increase in population and the disruption of its previous way of life success- fully. 61 A survey of residents and city officials gave the following assessment of the change brought to Kenai: 62 "Many respondents mentioned a better standard of living, more diverse jobs, in- creased land values, and better roads, 60 U.S. Congress, Office of Technology Assessment. Coastal Effects of Offshore Energy Systems. Washington, D.C., Govern- ment Printing Office, November 1976, p. 157. si Council on Environmental Quality. Oil and Gas in Coastal Lands and Waters. Washington, D.C., Government Printing Office, 1977, p. 65. 62 Ibid. IV-19 medical care and schools. They also noted that there was less friendliness, less priv- acy, and — for the first time — discrimina- tion." In rural Virginia there have been hot debates for 2 years on the issue of whether the community of Cape Charles and Northampton County want to be the site of a 2,000-employee plant to construct offshore oil platforms. The issue was put before the voters in a county commission election. One group opposed the project, the other favored it (with cer- tain limits, such as the number of workers). The result, in November 1975, was a turnout of 83 percent of the eligible voters, who handily approved candidates favoring the project. 63 "The vote was not a referendum, and no doubt other issues affected the outcome. But, the message was clear that citizens did not wish to reject the Brown and Root proposal. What is most likely is that many Northampton County citizens believed that large-scale industry and economic revival are not necessarily at odds with the peace, beauty, enjoyment of neighbors, and close- ness with nature that they love about the shore." Status of the Coastal Zone Management Program State coastal zone management programs are in two basic stages — the planning effort or program development stage (authorized by Section 305 of the Act) and the operational or program administration stage (specified in Section 306 of the Act). A third phase consists of miscellaneous features. Chief among the latter is the $1.2 billion 10-year coastal energy impact program enacted in 1976, which is loosely tied to coastal management programs. This section describes program development since approval of the Act, efforts to evaluate the program underway in 1978, the status of each State's program, and, in greater detail, the coastal zone management program for the State of Washington — the first State program to be approved. Program Development The pace of program development since approval of the Act in 1972 has been slower than expected — not unlike other environmentally oriented programs. From the Stratton Commission's recommendation of Federal assistance for an initial 2-year period, the program was expanded to a 3-year planning effort authorized by the original 1972 act. The 1976 amendments provide a fourth year of funding under Section 305 in recognition of the difficulty States are having in developing viable coastal programs, plus an additional 2-year period allowed under Sec- tion 305(d) for a "preliminary approval" status. States will continue to receive funds under this ex- tended 2-year period if their program design is satisfactory, in the event that additional time is needed for administrative reorganization or legisla- tive enactment. Funding for section 305 development grants is scheduled to expire in fiscal year 1979. The projected goals for coastal zone management programs by the State reveals a record of missed target dates and a propensity of the Office of Coastal Zone Management (OCZM) to be overly optimistic in its estimates of State program schedules. In February 1976, OCZM predicted 17 States and two segments of State coasts would be eligible to receive program operation money (Section 306 funds) by the end of fiscal year 1977. Actually, only two West Coast States (Washington and Oregon), plus segments of California (San Francisco Bay) and Puerto Rico (Culebra Island) were approved by that date. In testimony before the House Appropriations Subcommittee with jurisdiction over the Department of Commerce budget, it was projected that the re- maining 19 States would have their programs com- pleted by the end of fiscal year 1978. The projected completion dates of State coastal management programs have been consistently wide of the mark (table 4-4). A projection made on August 1, 1977, notes that in 5 of the 16 States ex- pected to complete their program in fiscal year 1978, success depends on legislative action. The OCZM document says a "pessimistic" view has four instead of eight programs being finished in the first half of 1978 (table 4-5). To some observers the time scale for coastal zone management has been unrealistic from the start, be- ginning with the initial 3-year period enacted by the Congress. In this view, the process should have been thought of as a 10-year effort from the outset, in recognition of the inherent difficulties involved. The Federal expenditures for the program through September 30, 1977 include $64.5 million of funds distributed to the States under the three original r >3 Ibid., p. 107. IV-20 Table 4-4. — Coastal zone program approval schedule 1 [Number of State programs] Date of estimate FY 1975 Est. 2 Act. 2 FY 1976 Est. Act. FY 1977 Est. Act. FY 1978 Est. FY 1979 Est. April 4, 1974 4+l a April 14, 1975 4+1 5 b 1 8 23 2 + 2 b February 9, 1976 3 + 1 c 1 14+1 d 2+2 19 March 8, 1977 6 2 + 2 16 • 17 August 1, 1977 3 + 2 2 + 2 19' ? 1 U.S. House of Representatives, Hearings, Departments of State, Justice, Commerce, Judiciary and Related Agencies Appropria- tions for Fiscal Year 1975, 1976, 1977, and 1978, p. 800 (part 3), 287, 903, and 501 (part 4), respectively. 2 Estimated for approval and actually approved. a Four States and one coastal segment. b New Hampshire, Michigan, North Carolina, Oregon, Rhode Island. c California segment, Oregon, Washington, Rhode Island. d Cumulative California, Delaware, Maine, Maryland, Minnesota, New Hampshire, New Jersey, North Carolina, Oregon, Puerto Rico segment, Rhode Island, South Carolina, Texas, Virgin Islands, Washington. |" Cumulative: California, Delaware, Illinois, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, North Carolina, Ore- gon, Puerto Rico, Rhode Island, Texas, Virgin Islands, Washington, Wisconsin. 'Cumulative: Washington, Oregon, California, Virgin Islands, Illinois, Maine, Maryland, Massachusetts, North Carolina, Rhode Island, Wisconsin, Delaware, Florida, Guam, Minnesota, Michigan, New Hampshire, New Jersey, Puerto Rico. s Washington. i» Washington, Oregon, California segment, Puerto Rico segment. Table 4-5. — Status of Coastal Zone Management Act Section 306 approvals [Prepared by Office of Coastal Zone Management, NOAA — August 1, 1977] State Draft of EIS status 1 Expected Section 306 approval date Budgeted 1978 by OCZM Section 306 First half of 1978- Oregon Washington California Virgin Islands Illinois Maine Maryland Massachusetts Michigan North Carolina Rhode Island Wisconsin TOTAL: Second half of 1978 s Delaware Florida Guam Minnesota New Hampshire New Jersey Puerto Rico TOTAL: Depends on State legislation Issue November 1977 Issue November 1977 Issue September 1977 Issue October 1977 Issue November 1977 Issue October 1977 Issue October 1977 Depends on State legislation Depends on State legislation Depends on State legislation Issue January 1978 Depends on State legislation Issue March 1978 Issue March 1978 May 1977 1977 is second year of Section 306 program September 1977 October 1977 June 1978 March 1978 April 1978 February 1978 March 1978 March 1978 March 1978 February 1978 June 1978 September 1978 September 1978 August 1978 September 1978 September 1978 August 1978 1,400,000 1,400,000 3,000,000 500,000 1,100,000 1,000,000 1,150,000 1,100,000 1,250,000 1,150,000 800,000 1,100,000 14,950,000 787,000 400,000 1,225,000 950,000 3,362,000 i EIS, Environmental Impact Statement. 2 Possible approvals in first half of 1978: 8 States. Pessimistic estimate of approvals in first half of 1978: four States. 3 States listed in first half that "slip" probably would be funded during second half of 1978. Some States listed in second half of 1978 may "slip" to 1979. These States, owing to shortage of Section 306 funds, would be funded effective October 1, 1978 (fiscal year 1979). IV-21 Table 4-6. Federal coastal zone funding March 1974 through September 1977 State Program development Section 305 Program administration Section 306 Estuarine sanctuary Section 315 Alabama Alaska California Connecticut Delaware Florida Georgia Guam Hawaii Illinois Indiana Louisiana Maine Maryland Massachusetts Michigan Minnesota Mississippi New Hampshire New Jersey New York North Carolina Ohio Oregon Pennsylvania Puerto Rico Rhode Island South Carolina Texas Virgin Islands Virginia Washington Wisconsin Total: dollars 408.378 3,270,000 3,848,668 1.120,832 989,746 2,335,446 1,095.365 542,045 1.450,000 1,140,000 562,280 2,744,000 1,872,650 2.450,386 2,270,430.58 1,915,325 812,500 513,638 642,000 1,773,087 2.802,625 2,349,067 1,219,000 1.695,978 667,000 1,358,843 1,632,034 1,337,463.82 3,335,996 390,000 1,408,764 1,262,820 1,304,150 52,520,577.40 Federal grant funds State matching funds (approximately) Administration (Federal) Grand total dollars 120,979 a dollars 1,850,000 292,626 b 3.750,000 6,013,605 1,500,000 1,550.000 199,600 894,152 1,804,813 5,948,565 $64,482,741.40 $25.4 million $ 7.7 million $97.5 million a Segment of State: San Francisco Bay. b Segment of Commonwealth: Culebra Island. titles of the Coastal Zone Management Act plus $7.7 million M for the cost of administering the pro- gram through the Office of Coastal Zone Manage- ment, a total Federal expenditure of $72.2 million. In addition to the Federal grants awarded to the Slates for program development, administration and estuarine sanctuaries (Sec. 315(1)), State matching B* NOAA Office of Coastal Zone Management figures for fiscal years: 1973 (reprogramed funds), $250,000; 1974, $555,000; 1975, $1,178,000; 1976, $1,739,000; transition quarter, $523,000; 1977, $3,239,000; 1978 (estimate), $3,155,000. Total through fiscal year 1977, $7,734,000; estimated total through fiscal year 1978: $10,889,000. funds amounting to one-third for development grants and administrative grants, and one-half for the estuarine sanctuaries program, raised total public expenditures through fiscal year 1977 (excluding the coastal energy development program) on coastal zone management to about $100 million (table 4-6). The program delays which have characterized the State coastal zone management initiatives may have been caused by either administrative shortcomings or inherent deficiencies in the concept of the pro- gram itself. Several studies of coastal zone manage- ment will be undertaken in 1978. The Department IV-22 of Commerce has announced that it will undertake a full-scale assessment of the program in addition to an internal review by NOAA. Both the Senate Committee on Commerce, Science, and Transporta- tion and the House Merchant Marine and Fisheries Committee have announced plans to hold oversight hearings on the coastal zone management program in the near future. Both the Coastal Zone Manage- ment Advisory Committee and National Advisory Committee on Oceans and Atmosphere may under- take examinations also. Because the program is at a relatively early stage, with only three State programs operating, it is pre- mature to conclude how effective it will be. The evaluation efforts underway in 1978 will be im- portant in that they will be the first thorough exam- ination made with enough State programs available to allow a preliminary judgment. Description of State Coastal Zone Management Programs The status of each State's Coastal Zone Manage- ment Program in early 1978 is described, including the legal authorities proposed by the State to admin- ister its coastal program. The descriptions are based on information provided by NOAA's Office of Coastal Zone Management. Expenditures noted are Federal funds allocated to the States as authorized by the Coastal Zone Management Act of 1972 from March 1974 through September 1977 — for program development (preparation) under Section 305, for program administration (management) under Sec- tion 306, and for estuarine sanctuaries under Section 315. Funds dispensed under the Coastal Energy Im- pact Program (Section 308) are not included. Alabama Federal Funding Program Preparation (Section 305) 1974 $100,000 1975 151,418 1976 1977 156,960 Total : 408,378 Current Status The Alabama Coastal Area Board was established in 1974. In 1976, the legislature reconstituted the Board to include four local government officials from the coastal area, four State agency heads, and the chairman of the Citizen's Advisory Committee. The restructuring of the Boards' membership and author- ity caused delays in the hiring of staff and the de- velopment of program management activities. The Board is currently identifying the uses and areas that will be managed, and the procedures that will be used to assure consistency with the policies in the program. Authorities The Board is responsible for developing a com- prehensive coastal area management program and for assuring that actions by agencies in the coastal area are consistent with the management program. No additional permits will be required from the Board if an existing State agency permit is required for an activity; current State permit activities will be subject to a determination by the Board that the permit will be in compliance with the management program. The coastal act allows significant local government autonomy. Fedi 'ral Funding Program Preparation (Section 305) 1974: $ 600,000 1975: 1,200,000 1976: 1,470,000 1977: Total: 3,270,000 Current Status The original thrust of the coastal zone manage- ment effort in Alaska was technical data collection and information dissemination. Much of this work has been accomplished through the technical services of State agencies. During the second and third years of program development, Alaska focused on policy development; State, local and Federal authorities that impact coastal resources; identification of boundaries and areas of particular state concern; and joint participation between the administrative and legislative bodies of government to develop acceptable coastal legislation. With third year supplemental funding, Alaska started implementing certain parts of its coastal act, which requires the development of guidelines and standards for establishing a Policy Council. Local government involvement and development of District Programs is also required and is a major activity during the fourth year. Active citizen participation has been an integral part of the program during the third and fourth years, including Statewide public workshops on coastal issues and public hearings on the guidelines and standards. A Minorities The Alaska Coastal Act of 1977 will form the foundation of the program. This establishes the process for developing a program as well as the in- stitutional arangements to administer it. Additional State authorities will be used as necessary to enforce IV-23 the policies of the program. The State is currently considering passage of additional legislation such as Forestry Practices which may supplement the au- thorities of the management program. Connecticut Federal Funding Program Preparation (Section 305) California Federal Funding Program Preparation (Section 305) 1974 $ 720,000 1975: 900,000 1976 1,200,000 1977 1,028,668 Total : 3,848,668 Program Management (Section 306) 1977: $120,979 Total : 120,979 Current Status For the first 3 years, California developed the Coastal Plan in response to a citizen's initiative (Proposition 20) that required a comprehensive plan for coastal resource preservation and use. Concur- rently, the State was also directly controlling land and water uses through coastal development permit requirements. The Coastal Plan was introduced to the legislature, and, after considerable debate, the California Coastal Act of 1976 was approved. Part of third year and fourth year work programs were devoted to implementing parts of the Coastal Act including the development of local coastal pro- grams and approval of the management program under the Coastal Zone Management Act. The State's management program was approved by the U.S. Secretary of Commerce, Juanita M. Kreps, in November 1977. The approval of the pro- gram has been contested in Federal Court by the American Petroleum Institute, et al.; the presiding judge allowed the program to be approved, but with- held the application of the Section 307 Federal con- sistency provisions of the Act until there is a hearing on the merits of the case. California's first year implementation funds are devoted largely to processing thousands of coastal development permits and assisting local governments in developing comprehensive local coastal programs which incorporate the State policies established in the Coastal Act. Authorities The State's coastal management program is based on the California Coastal Act, the Coastal Con- servancy Act of 1976, the Urban and Coastal Park Bond Act of 1976, and appropriate regulations de- veloped pursuant to the Coastal Act. The State is currently in the process of refining its program to include the Liquefied Natural Gas Terminal Act of 1977. 1974: 1975: 1976: 1977: Total: 194,285 482,484 444,063 1,120,832 Current Status Connecticut began its third year of 305 program development during fiscal year 1977. Draft legisla- tion was prepared for submission in January 1978. A recommended two-tier boundary is proposed, the first being about 1,000 feet from mean high water, the second being the first inland community. Authorities The State will need new legislative authority in order to meet the requirements of the Coastal Zone Management Act. A bill has been drafted and sub- mitted to the State legislature. The legislation would place the coastal management agency in the Depart- ment of Environmental Protection. The manage- ment technique recommended is a shared State/local partnership with the local agencies assuming most of the responsibility. Delaware Federal Funding Program Preparation (Section 305) 1974 $166,666 1975 345,000 1976 1977 478,080 Total : 989,746 Current Status Much of Delaware's first year of management program development was devoted to identifying and filling management data voids and in delineating areas of critical concerns, permissible uses, and priorities of uses. Efforts during the second year of work included: (1) completion of much of the basic coastal re- sources and processes research work; (2) application of the general coastal management methodology to the needs and issues affecting the Lewes-Rehoboth portion of the coast; (3) intial determination of geo- graphic areas of particular concern, including iden- tification of unique and rare natural areas worthy of preservation; (4) initial listing of permissible uses; and (5) additional basic examination of existing legal and organizational arrangements. During the third year, much of the work centered on producing a draft management program by February 1978, and on a legislative package to be IV-24 submitted to the legislature for consideration during its 1978 session. A uthorities Delaware has three major statutes dealing with coastal resources: (1) The Coastal Zone Act, (2) Wetlands Act, and (3) the Beach Preservation Act. As it is necessary for the State to seek additional legislative authority, the following bills have been submitted to the legislature: (1) a bill which estab- lishes a process for State involvement in local deci- sions that may be of more than local concern, (2) a critical areas bill, and (3) an erosion and sedimenta- tion bill. If this legislative package is enacted, the State may have sufficient comprehensive authority to meet Federal requirements for a coastal zone man- agement program. Florida Federal Funding Program Preparation (Section 305) 1974 $ 450,000 1975: 763,000 1976: 1,122,496 1977: Total : 2,335,496 Estuarine Sanctuary (Section 315) 1977: $1,500,000 Total : 1,500,000 Current Status The development of a coastal management pro- gram in Florida has been the responsibility of a suc- cession of State agencies that have been supported by Regional Planning Councils and citizen advisory committees. The program development process has produced extensive planning and management infor- mation at the State and regional level and has made management recommendations in a number of areas, including boundaries, uses to be managed, and areas of particular concern. In 1977, the Florida legislature transferred the responsibility for completing the coastal management program to the Department of Environmental Regulation. The Department, assisted by a State Coastal Zone Management Committee, published a "Preliminary Workshop Draft Program" in November 1977. The document was reviewed by Federal agencies and discussed at a number of well- attended public workshops throughout the State in December. Following necessary revisions, the pro- gram and implementing legislation will be submitted to the governor and hence to the legislature in early 1978. Authorities There will be an attempt to pass legislation in 1978 that will ensure that existing State authorities and programs will be conducted in a manner con- sistent with the proposed policies of the coastal man- agement program. Existing State authorities include, but are not limited to, permits relating to wetlands, beaches, as well as air and water quality, the Areas of Critical State Concern Program, the Development Regional Impact review process, and several special area programs such as the Aquatic Preserves Pro- gram. Georgia Federal Funding Program Preparation (Section 305) 1974 $ 188,000 1975 416,250 1976 1977 491,115 Total 1,095,365 Estuarine Sanctuary (Section 315) 1975: $1,500,000 1976: 1977: 50,000 Total : 1,550,000 Current Status The momentum of the development of Georgia's coastal management plan was interrupted during a reorganization within the Department of Planning and Budget and the program's subsequent relocation in the State Department of Natural Resources. In June of 1978, the State will enter its fourth year of program development. Georgia has determined to seek coastal legislation, and during the third year the State developed legis- lative recommendations for the governor's review. The State has made substantial progress in deter- mining procedures for citing uses of regional benefit and has begun addressing the national interest and energy facility siting requirements. The State's inland boundary has been defined. The boundary extends 150 feet west of the Seaboard Coastline Railroad and Interstate 95. A nomination process has been recommended for future "geo- graphical areas of particular concern" designation and selected natural, cultural, and recreational re- source areas already have been designated. Authorities The State has prepared several pieces of legisla- tion for introduction in 1978. This package consists of four parts: (1) a Coastal Siting Act, (2) Coastal Management Act of 1978, (3) Shore Protection Act of 1978, and (4) a proposed Constitutional amend- ment. The governor has determined to introduce the latter three bills during the 1978 legislative session. The Coastal Siting Act has been introduced for IV-25 study during the 1978 session and possible passage in 1979. Guam Federal Funding Program Preparation (Section 305) 1974: 1975: $143,000 1976: 189,000 1977: 210,045 Total: 542,045 Current Status In about 2Vz years Guam has inventoried all of its major resources (including reefs and beaches), mapped and classified them, and has used this knowledge to provide tne oasis for a comprehensive land and water use program. A land-use element designed to take into account significant resources and user needs was published and distributed for re- view. A major effort has gone into drafting coastal legislation. Authorities In addition to Guam's Seashore Protection Act and territorial statutes, island-wide land-use legis- lation has been prepared for adoption by the legisla- ture. This legislation consists of districting of land (patterned after Hawaii), the designation of per- missible uses in those districts, and a process to designate areas of particular concern. Hawaii Federal Funding Program Preparation (Section 305) 1974: $ 250,000 1975: 400,000 1976: 500,000 1977: 300,000 Total : 1,450,000 stuarine J Janctuary (Section 315) 1976 $199,600 1977 Total : 199,600 Current Status Throughout the development of its coastal man- agement program, Hawaii has followed a classical planning approach. It has identified its coastal re- sources and the concurrent management problems, and has conducted a widespread public involvement program that was instrumental in problem identifica- tion and the passage of coastal legislation. Differ- ences between the State and county governments as to the proper division of implementation responsi- bilities have been a continuing problem. During its fourth year of program development, the State has been working on a management pro- gram that describes how the State will enforce the program's objectives and policies, both during an interim period of time during which local govern- ments are to refine the coastal development permit boundary and be in compliance with State policies, and thereafter. Authorities The State will use both direct controls (particu- larly in coastal waters) and local implementation of State-established criteria and standards to control land and water uses. The Hawaii Coastal Zone Man- agement Act of 1977 establishes State policies, re- quires local and State government compliance, re- quires developers to acquire a coastal development permit, and directs that the Hawaii program use other existing State authorities. Illinois Federal Funding Program Preparation (Section 305) 1974: $ 206,000 1975: 434,000 1976: 500,000 1977: Total: 1,140,000 Current Status Illinois' Coastal Zone Management Program is in its third year of development within the Illinois De- partment of Transportation's Division of Water Resources. The inland boundary follows property lot lines or transportation right-of-way lines and in either case is not more than 500 feet from Lake Michigan. The State's major coastal management policies are to minimize shore erosion, flooding, and property dam- age; protect water quality; protect offshore reef for- mation, coastal fisheries, and natural areas; promote shoreline recreation services and promote lake- dependent commercial, industrial, navigation, port, and energy facilities. The Illinois Coastal Zone Man- agement Program has four areas of particular con- cern requiring special management attention: (1) the Illinois Beach State Park, (2) the Waukegan Harbor and lakefront industrial complex (3) the 100-year high-risk erosion area of Lake Bluff, and (4) offshore dolomite reef formations. A uthorities The Illinois Coastal Resources Management Act (HB 2118) has been passed by the House of the Illinois General Assembly and will be voted on by the Senate in the next session. This Act establishes a permit system to be administered by either the State IV-26 or a "certified" municipality or county to control specified land and water uses. The governor would designate the Illinois Department of Transportation as the State implementation agency under Section 306 of the national act, and issue an executive order requiring State agency actions to be consistent with the coastal programs to the maximum extent practicable. The department would be responsible for certifying and decertifying local governments and for carrying out the State and Federal con- sistency elements of the State program. If HB 2118 is passed, Illinois will submit its program for Fed- eral approval in July 1978. Indiana Federal Funding Program Preparation (Section 305) 1974: 1975: $220,000 1976: 1977: 342,280 Total: 562,280 Current Status The Indiana State Planning Services Agency is responsible for administering the State's program development under Section 305 grants. The prob- lems and issues identified during the first year of program development are grouped into nine areas: shoreline erosion and property damage, recreational resources, ecological and environmental concerns, economic development, commercial ports, aesthetics, jurisdictional responsibilities, land-use compatibility, and inadequate transportation. The Indiana Depart- ment of Natural Resources and two Planning and Development Commissions covering the coastal area collected data relating to the major natural, eco- nomic, and social characteristics of Indiana's Lake Michigan shoreland area during the first year. The planning agency organized a Technical Advisory Committee and a Citizens Advisory Committee. Indiana's second-year application was delayed because of inadequate progress during the first year. Once the first-year products were completed satis- factorily, the Office of Coastal Zone Management made a second 305 grant to Indiana in September 1977. Authorities Some State legislation probably will be attempted in Indiana, but the principal controls probably will be maintained at the local government level. Louisiana Federal Funding Program Preparation (Section 305) 1974: $ 260,000 1975: $ 485,000 1976: 999,000 1977: 1,000,000 Total: 2,744,000 Current Status Louisiana began its fourth year of program devel- opment on June 30, 1977. The Governor, in August 1977, transferred responsibility for completing the coastal management program to the Louisiana De- partment of Transportation and Development, which had previously been designated as the State agency responsible for administration of the Coastal Energy Impact Program. Recent program development work has centered on assisting parishes (counties) in pre- paring local management programs, identifying cate- gories of uses subject to management and special management areas, refining the boundary, and im- plementing the Coastal Energy Impact Program. A uthorities In 1977, the Louisiana legislature enacted the State and Local Coastal Resources Act of 1977 (Act 705), prepared by the Louisiana Coastal Commis- sion. This statute required each State agency and local parish to prepare management plans for the area within a 3-mile coastal boundary. The Office of Coastal Zone Management informed the governor that the bill was unsatisfactory in several areas and could not provide a basis for approval of a State program under the Federal act. The Department of Transportation and Development is drafting a new bill which will provide the authority for a State management program and permit system as well as procedures for approving local parish management programs that are consistent with State coastal pol- icies and guidelines. Maine Federal Funding Program Preparation (Section 305) 1974 1975 1976 1977 Total $ 230,000 474,870 457,970 709,810 1,872,650 Current Status In 1976, Maine submitted and subsequently with- drew a proposed management program for its mid- coast area, extending from Casco Bay to Frenchman Bay. The proposal was recalled in order to bring about a greater level of participation by town gov- ernments. Maine completed a draft of its coastal zone management program and held five major pub- lic hearings concerning it in November 1977. IV-27 A uthorities About two-thirds of the Section 306 grant fund will be available to help local communities imple- ment the program. The proposed State coastal man- agement agency is the State Planning Office. The Coastal Conservation Development Commission ap- pointed by the Governor has provided overall guid- ance in program development. No new legislation will be sought in Maine. Instead, reliance on the 1 1 present State laws felt pertinent to the coastal area will be used in what is termed "networking" of exist- ing authorities. Included are wetlands, critical areas, and shoreline zoning acts. Federal Funding Program Preparation (Section 305) 1974 $ 280,000 1975: 560,000 1976: 810,290 1977: 800,096 Total : 2,450,386 Current Status Maryland's initial efforts in coastal management planning were research-intensive, with certain speci- fic targets set during its second year of program development. The State has focused on completing the resource inventory necessary to determine geo- graphic areas of particular concern; initiated a study of onshore development associated with OCS activ- ities; established a public participation framework within which program elements may be reviewed and appropriately modified; completed a draft compre- hensive dredge spoil disposal plan; completed inven- tory and analysis of institution and authorities for managing coastal areas to determine the remedial action necessary; and worked with relevant State and Federal agencies and local governments in an effort to ensure consistency as permissible uses of the coast are identified. Following governmental reorganization that placed primary responsibility for coastal planning under the Energy and Coastal Zone Administration, a clearer course of action toward coastal program ap- proval is emerging. Major objectives of the State's third year of coastal planning are: (1) a greater effort toward soliciting public and local government participation; (2) work on the Baltimore Metro- politan Coastal Area Study; (3) initiating a coastal use capability study to develop a management mech- anism for using resource information; (4) work with the Department of State Planning to recommend mechanisms to meet the requirements for authorities and organizational networking; (5) additional em- phasis on State-Federal coordination; and (6) prepa- ration of the management program document. A uthorities The Maryland program document has been com- pleted and is under review by the Office of Coastal Zone Management. An executive order, signed by the governor, is needed to create a network of al- ready existing State authorities and provide a conflict resolution mechanism necessary for Federal program approval. The program uses five present State au- thorities on: wetlands, coastal facilities review, powerplant siting, shore erosion, and flood control watershed management laws. Massachusetts Federal Funding Program Preparation (Section 305) 1974: $ 210,000 1975: 492,330.58 1976: 917,100 1977: 651,000 Total: 2,270,430.58 Current Status The Massachusetts Coastal Zone Program has received preliminary approval under Section 305(d). A preliminary program was submitted for public review in December 1976 and to the Federal Office of Coastal Zone Management in summer 1977. The draft environmental impact statement was circulated in fall 1977. Federal approval of the program was scheduled for early 1978. A uthorities Massachusetts has based its program on existing authorities. The State passed strong environmental laws in the 1960s and early 1970s and is using the coastal program to implement them more effectively. Among the State laws to be used are two coastal wetlands acts, the offshore minerals act, an ocean sanctuaries act, and the State environmental policy act. Michigan Federal Funding Program Preparation (Section 305) 1974: $ 330,486 1975: 400,000 1976: 529,839 1977: 655,000 Total: 1,915,325 Current Status The Michigan coastal zone boundary has been designated as including all lakeward coastal areas within Michigan's jurisdiction and landward coastal areas extending to a minimum of 1,000 feet inland of the ordinary high-water mark. The latter repre- sents the jurisdictional limit of the Michigan Shore- IV-28 lands Protection and Management Act. Further ex- tensions of this boundary were made to include coastal lakes, river mouths and bays, floodplains, wetlands, Great Lakes sand dunes; public recreation and natural areas; and heavily developed or urban- ized areas. The program was submitted for approval to the Office of Coastal Zone Management in August 1977. A draft environmental impact statement was issued in November 1977. Authorities The Michigan program's authorities will consist of a number of existing State laws and regulations, including the Shorelands Protection and Manage- ment Act, the Soil Erosion and Sedimentation Act, the Subdivision Control Act, the Inland Lakes and Streams Act, the Great Lakes Submerged Lands Act, the Natural Rivers Act, the Mineral Wells Act, the Oil and Gas Wells Act, and the Michigan En- vironmental Protection Act. The lead agency for program implementation in Michigan will be the Department of Natural Re- sources, which also exercises the bulk of the author- ities. Coordination and consistency of other State agency actions will be achieved through agency par- ticipation on the Standing Committee on Shorelands and Water Coordination and through the Michigan Environmental Review Board's review of proposed State actions which may have significant environ- mental or human implications. The Board will also serve as a framework for resolving conflicts, and is authorized by executive order to recommend that an activity be halted or modified if found environ- mentally unacceptable. Minnesota Federal Funding Program Preparation (Section 305) 1974: $ 99,500 1975: 377,000 1976: 1977: 336,000 Total: 812,500 Current Status Minnesota is completing its third year of program development under Section 305 funding. The State is trying to complete a program to be submitted to the Office of Coastal Zone Management in May or June 1978. The lead agency is the State Planning Agency. Through a demonstration project grant, Minnesota is focusing efforts on the Duluth-Superior harbor jointly with the State of Wisconsin. A uthorities Program authorities will include a number of existing State laws and regulations, including the Shorelands Management Act, the Subdivided Land Sales Act, Power Plant Siting Act, the Minnesota Environmental Policy Act, Environmental Rights Act, and Environmental Quality Board Statute, and others. State agency compliance with the program will be required through the Environmental Quality Board's adoption of the program as State policy. The Board has statutory authority to resolve conflicts involving State agencies with regard to programs, regulations, permits, and procedures significantly affecting the environment. The program has en- countered stiff local opposition and may not move into a fourth year of development. Mississippi Federal Funding Program Preparation (Section 305) 1974 $101,564 1975 240,906 1976: 171,168 1977: Total : 513,638 Current Status Three years of coastal planning in Mississippi have resulted in a program discussion draft prepared by the Mississippi Marine Resources Council includ- ing recommendations concerning boundaries, areas of particular concern, and uses subject to manage- ment. The program discussion draft is being revised subject to comments by Federal, State and local agencies, and private citizens. The council has been assisted in the preparation of the management pro- gram by citizen advisory committees in each of the three coastal counties, and by an intergovernmental relations committee. A uthorities The Mississippi program requires additional State authority to ensure compliance by State and local agencies in the coastal zone. Building on existing State authority to issue permits regarding publicly- owned wetlands, the Marine Resources Council will propose legislation to the 1978 Mississippi Legisla- ture that will establish coastal goals and policies for all State and local agencies conducting activities in the coastal zone. New Hampshire Federal Funding Program Preparation (Section 305) 1974 1975 1976 1977 Total $ 78,000 120,000 148,000 296,000 642,000 IV-29 Current Status As New Hampshire looks toward the January 1978 legislative session, it is concentrating its work program in three major areas: a public participa- tion effort, preparations for legislative hearings, and development of coordination. A uthorities New legislation was to be submitted in January 1978. A coastal bill was passed by the House and Senate in 1977, but was vetoed by the governor. The legislation, to be reintroduced this year with some modification, contained a three-tiered bound- ary. The first tier, 1,000 feet from mean high water; the second tier, the coastal municipalities; and a third tier, towns adjacent to coastal towns. The man- agement program placed major implementation re- sponsibility with local governments to manage coastal activities with State assistance. New Jersey Federal Funding Program Preparation (Section 305) $ 275,000 807,750 690,337 1974: 1975: 1976: 1977: Total: 1,773,087 Current Status Much of the work accomplished during the first 2 years was mandated by the Coastal Area Facility Review Act (CAFRA). In its third year of program development, the State broadened efforts to meet the specific requirements of the Federal coastal man- agement program, including preparation of a draft program for submittal of the CAFRA area (80 per- cent of the State coast) as a geographical segment. It will begin the environmental impact statement process in 1978. A uthorities One New Jersey statute, Coastal Area Facility Review Act, together with other State authorities such as a Wetlands Act, constitute the basis for a coastal management program. For the remainder of the State's coastal area, along the Delaware Bay shore, it is possible that new legislation will be needed. New York Federal Funding Program Preparation (Section 305) 1974: 1975: 1976: 1977: Total : $ 923,000 951,825 927,800 2,802,625 Current Status During 1977 three major activities were accom- plished. The tentative statewide boundaries were delineated. Geographical areas of special concern were selected, and preliminary direction of needed legislation was proposed which would place manage- ment responsibilities with local governments in a method similar to that under existing wetlands man- agement legislation. The State expects to have a draft program for public review by June 1978. Authorities The State has tentatively determined that the additional legislation will be similar to existing State wetlands legislation which uses local govern- ments to implement the program. The legislation will be submitted in January 1979. North Carolina Federal Funding Program Preparation (Section 305) 1974: $ 300,000 1975: 639,746 1976: 666,337 1977: 742,984 Total: 2,349,067 Current Status The North Carolina program is in its fourth year of Section 305 program development. The program document was formally submitted in December 1977 to the Office of Coastal Zone Management for en- vironmental impact statement review. A uthorities The State is basing its program on the North Carolina Coastal Area Management Act (CAMA) of 1974. This State law provides for direct regulation of activities in areas of environmental concern (AECs). Additionally, the Act requires local govern- ments to prepare comprehensive plans in conform- ance with State guidelines and coastal policies. In areas outside of AECs, the State will use exist- ing authorities to manage uses that might have a damaging effect on coastal areas or resources. A signed executive order will help facilitate networking of the various State authorities. The order mandates State agency consistency with coastal goals and policies, and directs State agencies to act in a manner consistent with local land use plans where possible. Ohio Federal Funding Program Preparation (Section 305) 1974 1975 1976 200,000 419,000 IV-30 1977: $ 600,000 Total: 1,219,000 Estuarine Sanctuary (Section 315) 1977: $894,152 Total: 894,152 Current Status The Ohio program is in the early stages of its third year of development. The proposed manage- ment area for the program currently consists of a 1,000-meter strip of land along the shoreline of Lake Erie. This zone will extend further inland to cover areas that are affected by the lake or which would affect the coastal zone. A final management boundary will not be determined until the organiza- tional structure and program authorities are agreed upon by the government units involved in the pro- gram. Ohio has not yet decided which coastal uses should be managed by the State coastal program. It is likely that the State will want to deal with those which affect coastal water quality and those which could be affected by erosion and flooding. Once the State enters the program implementation phase, Ohio intends to develop incentive projects that will lead to increased public access and port activity. Preliminary statements of goals and objectives by the State indicate that Ohio will attempt to use the coastal program to assist property owners in con- trolling erosion through identification of other Fed- eral programs that can provide this assistance. The State has also developed a preliminary list of areas from which it will designate special management areas for economic development, cultural preserva- tion, and natural qualities such as fish and wildlife management. The organizational structure and authorities that the management program will use have not yet been identified. The citizen advisory groups formed during program development and the State agency respon- sible for program development — the Department of Natural Resources (DNR) — have expressed a pref- erence for keeping program regulatory decisions at the lowest level of government. It appears that Ohio will have to develop strong interagency linkages during program implementation, because some exist- ing authorities at the State level such as air and water quality authorities and the Power Siting Act will be incorporated as part of the program. These authorities are not administered by DNR. A uthorities It is likely that Ohio will require some form of new State legislation to deal with issues such as shoreline erosion and coastal flooding. All regulatory power over land-use decisions now resides at the local level. Any new authority which is developed in these areas will provide for decision-making at the local level of government. Any State efforts as securing coastal legislation will come early in 1979. Oregon Federal Funding Program Preparation (Section 305) 1974 $ 250,132 1975 298,811 1976 1,027,035 1977: 120,000 Total : 1,695,978 Estuarine Sanctuary (Section 315) 1974 $ 823,965 1975 325,000 1976 600,000 1977 55,848 Total 1,804,813 Program Management (Section 306) 1977 $1,850,000 Total : 1,850,000 Current Status The Oregon Coastal Management Program was officially approved on May 6, 1977, after a lengthy process and delays caused by the adoption of four new coastal goals for estuarine resources, shorelands, beaches and dunes, and ocean resources. The pro- gram consists of direct State control as well as local implementation of statewide goals through the devel- opment and implementation of comprehensive land- use plans that are enforceable. The major emphasis of the program is directed at providing assistance to local governments in devel- oping their comprehensive plans. Much of the as- sistance revolves around the use of estuarine re- sources which must be classified according to their capability and suitability of uses. Other work ele- ments include processing petitions for review (en- forcement), efforts to improve coordination and consultation, joint participation with the State of Washington including local governments and the involvement of Federal agencies in the comprehen- sive management of the Columbia River Estuary, and a public awareness program directed at stimu- lating citizen participation in comprehensive plan- ning. A uthorities The Federally approved Oregon Coastal Manage- ment Program is based on a broader statewide pro- gram, namely the Land Use Act of 1973. Other authorities in the program include laws dealing with beaches, dredge and fill, mandatory zoning, and natural area preserves. The Land Conservation and Development Commission and the Department of IV-31 Land Conservation and Development administer the program. Pennsylvania Federal Funding Program Preparation (Section 305) 1974: $150,000 1975: 225,000 1976: 292,000 1977: Total: 667,000 Current Status Pennsylvania is completing its third year of pro- gram development. The State has two coastal zones, the Delaware Estuary coastline and the Lake Erie coastline. The Commonwealth is completing work on the organization and authorities element of its third-year grant. This particular element was not properly completed during the grant period, and the Office of Coastal Zone Management found that the Commonwealth has not made satisfactory progress. At the start of 1978, no further funds were budgeted for the Commonwealth. A uthorities Legislation will be needed in Pennsylvania in order to meet the requirements of the national coastal program. Puerto Rico Federal Funding Program Preparation (Section 305) 1974: $ 250,000 1975: 350,000 1976: 424,190 1977: 334,653 Total: 1,358,843 Program Managament (Section 306) 1977: $292,626 Total: 292,626 Current Status Puerto Rico is in its fourth year of coastal pro- gram development for the whole Commonwealth, having received Federal approval for a management plan for the Culebra Segment in April 1977. During this last year, the Department of Natural Resources has begun its formal public review and informal Fed- eral review of its management program. Public hear- ings were held in January 1978, and the environ- mental impact statement process was expected to begin in April 1978. In addition, the Commonwealth continues to refine work being done to enable it to gain Federal approval of its entire plan for compre- hensive coastal management, anticipated in August 1978. A uthorities The Puerto Rico Planning Board is given broad authority for controlling land and water uses. Island- wide policies have been adopted as part of the Island-wide Land Use Plan and specific coastal pol- icies will be adopted for the program submitted for Federal approval. The Department of Natural Re- sources will be the designated State agency and will assist the Planning Board in implementing the pro- gram. Rhode Island Federal Funding Program Preparation (Section 305) 1974: $ 154,415 1975: 422,840 1976: 430,779 1977: 624,000 Total: 1,632,034 Current Status After about 6 years of experience in coastal re- sources management and 4 years of management planning with Federal coastal program assistance, the Rhode Island Coastal Zone Management Pro- gram was submitted to the Federal Government in October 1977. There have been opportunities for public and private review of the draft program, and the University of Rhode Island Coastal Resources Center has prepared documents describing the pro- grams. Hearings on the draft environmental impact statement on the program plan were held in 1977, and final, approval of the program is anticipated in 1978. A uthorities The State program is being based on 1971 legis- lation establishing the Coastal Resources Manage- ment Council. To provide specificity, 21 regulations have since been adopted. The governor's office has been designated the Section 306 management agency. South Carolina Federal Funding Program Preparation (Section 305) 1974 $ 198,485 1975 281,664.82 1976 522,314 1977 335,000 Total 1,337,463.82 Current Status South Carolina began its fourth year of program development on October 1, 1977. During the third grant year, the State signed into law the Coastal Management Act of 1977. IV-32 A draft paper on geographic areas of particular concern was produced this past grant year. The draft defines standards and criteria for four area categories, and specific sites will be identified with these criteria. The draft also produced a description of existing State laws that affect coastal areas. An analysis of existing State law will be used to supple- ment the State Council's management authority. This analysis provides a good basis for the proposed networking mechanisms between the State's Coastal Council and other State agencies. Authorities The State legislature in 1977 established the South Carolina Coastal Council and gave it permitting authority in critical areas, namely wetlands, beaches, and dune areas. The State legislature retained a measure of control over the State coastal manage- ment effort by requiring submission of the completed program to it for approval. Interim final Rules and Regulations were completed for the South Carolina Coastal Zone Act. The State is now working on identifying gaps in the management authority that must be filled to develop a Federally approved pro- gram. During this fourth year of program develop- ment, the State will present a draft coastal zone management plan for review. This draft plan will address the Section 305 planning requirements for energy facility planning, shorefront access, and shore erosion planning. Federal Funding Program Preparation (Section 305) 1974: $ 360,000 1975: 920,000 1976: 1,115,000 1977: 940,996 Total: 3,335,996 Current Status Texas has begun its fourth year of coastal plan- ning with the preparation of a "Working Paper" on the Texas Coastal Management Program. The "Working Paper" establishes the issues that will be the focus of the Texas program: natural hazards protection, freshwater inflows to bays and estuaries, dredge material placement, industrial and energy siting, and shorefront access. A major part of the Texas program effort is the development and imple- mentation of an activity assessment routine; a sys- tematic process for assessing, in advance, the prob- able economic, environmental, and social effects of specific activities in the coastal zone. The "Working Paper" has been reviewed by Federal agencies and will be revised into a draft management program. The development of the Texas coastal management program has been the responsibility of the Texas General Land Office with the assistance of a State Advisory Committee. Authorities Implementation of the Texas coastal management program will rely primarily on pre-existing State authorities, especially the powers of the General Land Office, and the organizational and acquisition authorities that were enacted during the 1977 legis- lative session. The recently enacted legislation, which was developed by the Texas coastal manage- ment program, included bills creating a Natural Re- sources Council (NRC) made up of State resource agencies, another bill establishing the coastal coor- dination responsibilities of the NRC, as well as a Coastal Wetlands Acquisition Act and a Dredged Materials Act. Virgin Islands Federal Funding 197 '4: $ 90,000 1975: 1976: 120,000 1977: 180,000 Total: 390,000 Current Status The Virgin Islands is in its third year of funding for program development. During the early part of this grant year, the Virgin Islands began the formal public review and an informal Federal review of its draft management program. Later in the year, pub- lic hearings were held and comprehensive coastal zone management legislation was drafted and sub- mitted to the Senate. At the same time, the Office of Coastal Zone Management began the environmental impact statement review process on the Virgin Is- lands management program. In September 1977, the legislation failed to pass by one vote. The legislation has been redrafted based on comments from interest groups, legislators, and the coastal zone office. The legislation was to be resubmitted in February 1978. Authorities The proposed legislation provides for direct State control of the Virgin Islands coastal zone, a two-tier boundary encompassing the whole of the islands and surrounding territorial islands. Simplified permitting of all development in the first tier, and a set of comprehensive policies on which permit decisions are to be passed. The Department of Conservation and Cultural Affairs will be the implementing agency. Virginia Federal Funding Program Preparation (Section 305) 1974: $ 251,044 IV-33 1975 $ 403,520 1976' 1977: 754,200 Total : 1,408,764 Current Status Well into its third year of program planning, Vir- ginia has been primarily involved with data collec- tion and public discussions of coastal management. Responsibility for administering the program has changed hands, passing to the Office of Commerce and Resources with dissolution of the Division of State Planning and Community Affairs. During its third year of program development, Virginia defined its management strategy, proce- dures, and organizational requirements in a docu- ment entitled "Proposals for Coastal Resources Management." The State has held a series of public hearings based on this document and intends to use public comments in developing a legislative package for submission during the 1978 session of the Gen- eral Assembly. Authorities The State is seeking new legislation to meet the standards of the national coastal management pro- gram, with submission of legislation scheduled for early 1978. Enactment of this legislation, which may include an amendment to the wetlands law as well as a major facilities siting bill, is not expected until after 1 year of study. Washington Federal Funding Program Preparation (Section 305) 1974 $ 388,820 1975 775,000 1976 1977 99,000 Total 1,262,820 Program R Management (Section 306) 1976 $2,000,000 1977 1,750,000 Total : 3,750,000 Current Status Washington has concentrated its first and second year Section 306 funds on enhancing the role of local governments in the areas of program adminis- tration and enforcement; revising and refining local master programs; conducting studies in areas of particular concern on issues important to local com- munities as well as State and Federal agencies; establishing closer Federal agency coordination and designing a conflict resolution mechanism; standard- izing coastal resource data through the development of a coastal atlas; and developing model ordinances and guidelines for coastal aquatic areas, the Outer Continental Shelf, and the second tier of the coastal boundaries. A uthorities The coastal program is based on the Statewide Shoreline Management Act of 1971 and other State authorities. Wisconsin Federal Funding Program Preparation (Section 305) 1974: $ 208,000 1975: 570,400 1976: 525,760 1977: Total: 1,304,160 Current Status Wisconsin has submitted its program for approval. The draft environmental impact statement was issued in October 1977. Wisconsin is currently undergoing public and Federal agency review of its coastal program. The lead agency in Wisconsin is the Office of State Planning and Energy in the Department of Administration. Wisconsin's coastal zone boundary will be the limits of its 15 coastal counties. Geo- graphic areas of management concern have been designated by generic category, as well as on a site- specific basis. The intial 23 site-specific designations will have a duration of 1 to 3 years, after which they will be reevaluated. A uthorities Among the 30 authorities which will form the Wisconsin program are the State shorelands pro- gram, powerplant transmission line siting provisions, dredge and fill permit authority, soil erosion controls, subdivision, and flood control legislation. These existing authorities will continue to be exercised by three State agencies: Department of Natural Resources, Public Services Commission, and the Department of Transportation. These agencies are bound to act consistently with the Wisconsin coastal policies both by State law and by an execu- tive order issued by Governor Schreiber in October 1977. The executive order also established a Coastal Management Council that will oversee State agency implementation, provision of financial and technical assistance, approval of the program budget, intergovernmental coordination, and coastal man- agement advocacy. IV-34 Washington State Coastal Zone Program As the first State to have its program approved by the Secretary of Commerce, Washington has estab- lished the effective level of Federal acceptability. That is, other States could not reasonably be asked to provide more than Washington. The State has re- ceived two administration grants under Section 306, the only State to do so through 1977. While details of the State's program are peculiar to the specific act on which it is based, the basic dynamics of the Washington program, specifically the State-local government relationship, probably will be representative of those States which gain eventual Federal approval. Several features of the State of Washington's coastal zone program are basic to understanding how it operates. First, the coastal zone management program is based on a State Shoreline Management Act 65 covering all major inland rivers and lakes, as well as the saltwater coast. Second, the "program" consists of individually prepared local master programs by each municipality and county along the coast, developed under broad State guidelines. Each "shoreline master program" reflects the political, social, and economic makeup of the particular jurisdiction. Third, State intervention in local development decisions, after approving a local master program, is concentrated on the first 200 feet inland. The State is given an opportunity to appeal any local development decision in this area to an independent Shorelines Hearing Board; it does not have the power to overturn such decisions directly. And the jurisdiction of the hearing board does not apply to the land area inland of 200 feet (with exceptions for certain wetlands). Activities beyond the 200-foot line which would affect the coastal area are obliged to meet the goals of the shoreline program, providing an opportunity for more extensive State coverage. The basic control mechanism operating in the 200-foot coastal area is the requirement that a shore- line permit be obtained from the local government, beyond whatever other permits might be required. Certain activities are exempt from this permit re- quirement, notably construction by the owner of a single-family house. Homes constructed by a devel- oper for sale would require a permit. The thinking was that single-home construction did not create the qualitative problems prompting adoption of the pre- gram. Also, the exemption was felt necessary polit- ically. Implementation of Program The Washington State program has had three dis- tinct phases. The first was between June 1971 when the State legislature acted and November 1972 when the voters sanctioned shoreline management. The second was between November 1972 and varying times after 1974 when locally prepared master pro- grams for the shorelines were prepared. The third phase, still not reached in a few jurisdictions, is the administration stage when local governments issue the required permits according to the State-approved master program and send the required notice of each such action to the State. Washington at first funded the shoreline activity entirely by itself, perhaps in anticipation of eventuas Federal assistance. The State was one of the first to be funded under the national coastal management program in May 1974. An initial two-thirds Federal grant of $388,820 was followed by a second grant of $774,000 for program development in July 1975. Table 4-7 shows the sequence of major events in the Washington State program as they relate to the time- table of the national coastal management progran . The real beginning of the program can be dated from 1974, when the first locally prepared master program was approved and permits were issued based on it. Once approved, such programs become State law and can only be amended with State ap proval. The shoreline management process began with a mandatory inventory of resources by local govern- ment units. Generally, the work was performed by existing planning agencies. Of the 15 coastal coun- ties, all had already zoned at least part of their land. Comprehensive plans had been adopted by 89 per- cent of the coastal cities and 80 percent of the counties. By virtue of the shoreline management re- quirements of local governments (if a unit failed to produce a plan, the State was empowered to do so), four planning offices were established and one com- prehensive plan stimulated. 68 Following development of the resource inventory, shoreline/coastal programs were developed accord- ing to State guidelines which spell out both the time- table and the content required. The original dead- line was met by less than 10 percent of the statewide eligible entities; after a 6-month extension granted by the State legislation, half of those eligible sub- mitted master programs. 67 As of November 1977, about 200 cities and counties had completed the es RCW, Chapter 90.58. 66 Jens Sorensen, Researcher, Institute of Urban and Regional Development, University of California. State-Local Collaborative Planning: A Growing Trend in Coastal Zone Management. Office of Coastal Zone Management, NOAA, Washington, D.C., October 1977, pp. 5-55. 67 Ibid. pp. 5-30. IV-35 r- 0\ S5 c E u M S3 C a 3 s = '-3 50 B O *» M e IS U"N On ON ON ON Si ■a a c § 22 e 00 00 f o 2 o 8 OS O § ^ ft a. P C g Ss - 2 eS d H 00 IS) u 2 o E o. < r- t SZ (Si J SS ™ u Si g O p ^ o — O _ «.r O a£ ez I- a o B oo ft +3 ft 00 OS C -2 § 8 < U- ftx> 1 I > — 2 ey ft oo ^ O oo J5 u vi u c .; » .S s w O '■ « fiZ Q E ■a "8 O 3 O 50 .s «> a H nt u eg "T3 H '3 3 ,h Q 03 C C n e a h — i ti O J ca oo ob A ■« aJ "H o 2 c " «S 03 3 +-* u o J2 o OuS< CO 1- (D «J C a o o -a 8.9 41 XI o ^> a 5 > 00 O 03 a a .S3 m S3 o3 o 9 « ^SS< program development process out of an eligible 229. 68 The State instructed the cities and counties to prepare programs with five major elements: citizen involvement, statement of policy, seven planning ele- ments, categorization of shorelines, and provisions for variances. The State suggested designating all shoreline coastal areas as belonging to one of four categories, with future use of the land governed by this designation. In order of restrictiveness, they were: natural, conservation, rural, and urban. Some jurisdictions elaborated on these four basic cate- gories; Seattle, for instance, divides its shoreline into seven areas, containing two types of conservation territory and five subdivisions of the classification "urban." This categorization process has been termed the "keystone" of the approach taken in Washington State. Localities, naturally, will shape their master pro- grams in accordance with their perceived needs. For some, this means restricting use of the shore by out- siders.'' 1 ' Others desiring to promote economic devel- opment have made widespread use of the "urban" classification of their shores to permit the maximum amount of future expansion, and have placed the "conservation" and "natural" classifications on rela- tively few privately owned lands. The negotiating process between State and local officials is essentially a political one, where the State coastal program office attempts to achieve as many of its objectives as it can and local governments pursue their interests to the maximum extent. How effective the process is depends on expectations. To the extent that any alteration of a locally prepared master program is achieved, the State program could be judged successful. Or the same process could be looked at and judged inadequate because the local unit of government has made most of the decisions about future shore use. Characteristics of Program The following characteristics typify the coastal management program in Washington: • The program is dominated by local units of government, the coastal cities and counties. The State Department of Ecology, which administers the program from Olympia, knows it cannot force unpopular policies on a local government and that it is constrained in its ability to persuade a local unit to alter a policy. A University of California researcher who has looked at the pro- gram reports that the State has decided to let communities adopt programs which, while flawed from the standpoint of State objectives, enjoy popu- «s Communication from Washington Department of Ecology, November 13, 1977. *9 Jens Sorensen, op. cit. note 66, pp. 5-34. IV-36 lar support. As a consequence, locally prepared coastal "master programs" which initially were re- jected by the State were approved after informal negotiations on the second submission, whether or not all of the imperfections were corrected. 69a ' 70 • A limitation of the program is its basic 200- foot coverage. Except for special wetlands and flood- plains, prime coverage of the Shoreline Management Act of 1971 on which the coastal management pro- gram is based is limited to the first 200 feet inland. The State is trying to persuade counties and cities to bring their plans for the rest of the coastal area into conformity with the objectives set out for the 200-foot zone. The initial proposal by environ- mentalists was for a 500-foot zone. • Two important exemptions from the require- ment that a permit be obtained for development within the 200-foot zone are owner-built, single- family homes and bulkhead installations, as noted above. Two researchers at the University of Wash- ington found that single-family homes constituted one half of the development around Puget Sound. They also found that 90 percent of the work on Puget Sound shoreline bulkheads was proceeding without a special shoreline permit. 71 • Nine of the 15 coastal counties, mostly small and rural, voted against shoreline management in a 1972 referendum. Higher levels of noncompliance with the program's permit requirement and more extensive use of the most permissive category for the coast (the designation "urban") are found in these counties. • Twenty-five percent of the State's coast has been designated an area of Statewide significance, which means local governments must abide by specific State policies for the types of uses to be per- mitted in these areas. Local governments, however, sometimes use the shoreline use categorization process to thwart State objectives in recreation or for providing more public access. 72 One place where the State objective of opening up access to the shore has been successful is with the Port of Seattle, which reports that the most significant impact of the shoreline act was to encourage access points for the ssa Ibid., pp. 5-55. to Darrel Peeples, assistant attorney general, State of Wash- ington. "Recreation: Marine Promise." NOAA Conference on Marine Recreation, Los Angeles, University of California, 1975, pp. 148. n Maureen McCrea and Jim Feldman. Washington State Shore- line Management: An Interim Assessment. Program in Social Management and of Technology, University of Washington, University of Washington, Seattle, 1976, pp. xx. 72 Interview September 12, 1977, with Al O'Donnell, Wash- ington Department of Natural Resources, and David Heiser, State Parks and Recreation Commission. Also, memo from State Parks Commissioner Charles Odegaard to Governor Daniel Evans, May 27, 1976. public in port projects." Generally, the question of access is a balancing act between preservation and development interests and State and local perspec- tives; some State departments are seen as too development-minded by local governments, which use shoreline management as a bargaining tool vis- a-vis the State. • The program is credited with preventing some of the more egregious proposals for use of the coast from surfacing. 74 Also, fewer overwater projects are being built along the coast. 75 • The program has succeeded in getting more attention for shoreline impacts at the local level than would be likely without it. • Enforcement of shoreline permits is a problem. There is only one full-time enforcement person in the City of Seattle to ensure that shoreline permit conditions are being met; that person will not be employed in this capacity after 1977 and the func- tion will be absorbed by the Building Department. An estimated 20 percent of shoreline permit condi- tions are ignored. 7 " More difficult to determine are the number of projects that proceed without a per- mit. Successful prosecution of a blatant violation of the shoreline permit requirement in King County (Seattle) has improved compliance there. 77 • The independent Shoreline Hearing Board, to which the State may appeal local zoning actions it disagrees with, has functioned successfully. Its chosen method of operation is to search for com- promise, obtaining thereby a scaled-down develop- ment proposal. The State is exercising the option to appeal in limited numbers — 102 of the first 3,242 permits. 78 • Coastal Zone Management Office funding has a significant impact on local governments. The State is passing through $625,000 this year, meaning that a considerable amount of local administrators' time can be given to coastal matters. • Environmentalists would like to see a stronger hand taken by the Department of Ecology, although they recognize the political difficulties involved. Other issues have come to the fore, such as the question of supertankers in Puget Sound, to occupy the relatively limited resources possessed by environ- mentalists since the height of coastal zone manage- ment activity in the early 1970s. 79 73 Interview, September 13, 1977, Art Yashiaka and Keith Christian, Port of Seattle Planning and Research Department. 74 Conversations with Nancy Thomas, president, Washington Environmental Council, and Dennis Derickson, planner, Snoho- mish County, September 13, 1977. ~ : > Maureen McCrea and Jim Feldman, op. cit. note 72, p. 70. ""Interview, September 13, 1977, Rosemary Horwood, plan- ner, Seattle Department of Community Development. 77 Jens Sorensen, op. cit. note 66, pp. 5-69. 7 * Maureen McCrea and Jim Feldman, op. cit. note 72, p. 70. 79 Interview, September 13, 1977, with Nancy Thomas, presi- dent, Washington Environmental Council (consisting of 70 mem- ber organizations). IV-37 • Citizen participation in preparation of the local master programs has been extensive and is regarded as one of the strong points of the State program. • The program has led to attempts to deal with regional resource issues, such as a bay bordered by a number of jurisdictions and the Columbia River, also traversing several local governments. • The Washington State coastal program has sponsored an ambitious atlas providing detailed maps of the coastal area for use by local govern- ments and others. Evaluation Criteria In order to evaluate the coastal zone management programs, it will be necessary to examine in detail individual State programs. There is general agree- ment that the merit of the individual State programs will be the key to the overall success or failure of the coastal management effort, not the number of State programs given approval and continued funding. Evaluations should concentrate on those features of the intrastate and State-local governmental process that provide a meaningful picture of how the coastal zone management program is working in practice. State programs should be examined for the follow- ing types of information: • Determine the location and size (fulltime per- sonnel) of the State coastal zone management pro- gram office; the rank of the executive who is man- aging the program on a day-to-day basis; compare with water quality program office; • Ascertain the reporting layers between the coastal zone program office and the governor's office; if possible get an indication of the amount of interest in the program on the part of the governor; • Determine the number of outside interest groups commenting in detail during the formulation of State programs and on environmental impact statements; • Determine the amount of legislative interest (actual votes, hearings, inquiries from legislators, or other expressions of interest); the extent to which coastal zone management is a public issue (by check- ing newspaper files for coverage); • Determine which major State coastal issues and controversies were handled by the coastal zone office and which were referred elsewhere in the State gov- ernment; • Survey State line agencies (highways, recrea- tion, natural resources, port authorities, and others) for changes they have instituted as a result of coastal zone management policies; that is, what changes in procedure they attribute to coastal management policies; • Determine the State/local permit issuing pro- cess for key coastal activities such as wetland altera- tion, bulkhead construction, dune alteration, marina construction, or condominium construction, how it was done previously and how it is done after adop- tion of a coastal zone management program; de- scribe the impact of the changes on an individual applicant for one or more of the State permits, step-by-step; • Examine "memos of understanding" or other means used by the State coastal zone office to influ- ence other State agencies' day-to-day operations; obtain an opinion of the legal standing of the in- struments; • Determine the amount of new data that has been assembled by State (and local) coastal program offices; determine how much existing data has been transformed to usable information; • Survey a sample of local governments for changes in zoning permit decision-making brought about as a result of coastal zone management pol- icies; find out what additional steps or considerations are involved because of the program, and how they are institutionalized; • Obtain the views of diverse interest groups about the effectiveness of the program and the de- gree of change it has brought about; • Examine State coastal zone office expenditures by general category: personnel (permanent and tem- porary), travel, research, consultants, mapping, pass- through to local governments, and • Learn if any use is made of the Federal con- sistency provision of the Act, determine what change in a Federal agency action was required as a result. Preliminary evaluations indicate that delays in program implementation are probably due to in- herent problems in program design rather than to faulty administration. Three problems in program design have been identified: (1) difficulty with effec- tive land-use planning and zoning, particularly that requiring local government to relinquish powers; (2) absence of positive incentives for State and local participation, since the program is voluntary (as for the promise of "Federal consistency," GAO found that States are concerned that the provisions will be "gutted" by Federal interagency agreements); and, (3) planning is generally a low-level operation in the States, and there is a tendency to want to study for- ever. While inherent difficulties are felt to be primarily responsible for the longer-than-expected develop- ment of the program, administration by the Office of Coastal Zone Management has not escaped criticism. Among them are: • Inconsistency of direction to the State program managers; in other words, shifting directions from IV-38 Washington make it hard for State program man- agers to know which direction to pursue; • Failure to sustain a technical information serv- ice valuable to the States; and • Lack of close monitoring during development of State programs, as opposed to providing support. The program is at a critical juncture. Because of the inherent difficulties embodied in the coastal zone management program as designed 7 years ago, and as discussed in the background and implementation sections, a difficult choice faces the program: should relatively weak programs be approved, on the grounds that they are the most effective that can reasonably be expected, or should the Office of Coastal Zone Management/ NOAA and the Depart- ment of Commerce insist on programs matching the original ambitious design? There is a direct parallel to this question in the States. As seen in the discussion of the Washington State program, the State-local relationship is a mirror image of the Federal-State relationship as described here. An argument in favor of approving relatively weak State programs is that the continued Federal involvement, through program operation funding (Section 306), provides an opportunity to encourage States to meet national objectives in the coastal re- gion through this program and its relationship to other, ongoing State authorities. To do otherwise, according to this line of reasoning, means cutting off any chance for the foreseeable future of using the coastal zone management approach to protect na- tional interest goals in the coast. The coastal zone office has chosen to make every effort to insist on as much authority as it can from State agencies to control future coastal activities — and to get as many "approvable" programs as pos- sible. The dilemma facing the program is the balance between wanting the strongest possible State man- agement programs on the one hand, and the prac- tical, political difficulties of bringing effective man- agement programs into being on the other. Alternative Approaches to Coastal Zone Management During the 1978 assessment of the coastal zone management effort — whatever the resulting judgment as to the program's effectiveness — it would seem appropriate to look at alternative approaches. If the judgment is that the current approach is effective or is likely to be in time, it will nonetheless be instruc- tive to look at other possible methods of dealing with the problems of coastal resource use. If it is judged that the current Federal grant-in-aid program is not working, and that the problems identified in the early 1970s are still present, then it is incumbent that some alternative approach or combination of meth- ods be suggested for adoption to achieve wise coastal resource use. In that spirit, the following alternatives are put forward for discussion purposes. The point of departure is the fundamental precept of coastal zone management itself. Are the original objectives of the Act — to protect coastal land and water resources for their best use by controlling development of the area at the State level of govern- ment — still valid? Has the national outlook changed since 1972 to the extent that a new national objec- tive for the coastal region should be redefined? Or, do the methods of achieving the objectives need reexamination? Possible alternatives follow. • Either Phase Out Federal Support of Coastal Zone Management Ovi r 5 to 7 Years or Con- tinue for 10 Years. It has been suggested that NOAA might gradually phase out matching funding support to the States for program operation, from the present 80 percent to 20 percent in fiscal year 1983 and presumably zero a year or two after that. The rationale for this suggestion is that the Fed- eral Government will have provided States and local communities enough opportunity by fiscal year 1984 or 1985 in what is considered by some to be essen- tially a State-local matter, i.e., control of the uses of land and water. This argument holds that the millions of dollars in Federal aid which will have been ex- pended by then will have helped the States marshal the scientific and technical information needed to make sound decisions and will have provided them with sufficient impetus to assume the full respon- sibility for coastal protection. In many, if not most, States, withdrawal of Fed- eral matching aid would either mean the end of the coastal planning and management activity as a sepa- rate initiative, or at best, a sharp reduction in resources available for this effort both at the State and local level. The States and Nation would risk the loss of the technical competence assembled by the States under this option if there were a cutback or abandonment of the coastal management initiative. Some suggest, however, that a cutback would improve the quality of effort by weeding out lower priority activity. In arguing against a phase-out of Federal funding, the Office of Coastal Zone Management has stated that a phase-out by the mid-1980s would be "re- neging" on an implied agreement; would compel States to stop their efforts before obtaining operating management programs; would be inconsistent with the action of Congress in 1976 by adding substan- tially to the program; and, last, would still cost a total of $185 million by fiscal year 1985 with much of that investment lost for the future. IV-39 The difficulty with the phase-out approach is that it leaves the coastal resource problem in large meas- ure as it was identified in the late 1960s and early 1970s, except that the pressures for development have intensified in many areas. One alternative of a totally differing nature would be to stretch out Federal support, that is, recognize the difficulties some States are having in developing comprehensive management programs and provide continued development support for, say, 10 years. This, of course, would require a continuation of the authorization for Section 305 support now due to expire at the end of fiscal year 1979. This option would leave open the question of how long, and on what basis, program operation funding (Section 306) might continue. • Continue Funding Matching Section 306 Grants at a Reduced Rate This recommendation is based on a distinction between State and national interests in the coastal area. The assumption is that the States will be will- ing to assume their responsibilities and fund a larger portion of Federally approved coastal zone manage- ment programs which qualify for administrative grants than the present 20 percent. Continued Fed- eral funding at a lower percentage would ensure that the State perform those tasks deemed in the national interest, which they might otherwise not undertake. These include facility-siting decisions, operation of the "Federal consistency" section of the program, wetland protection, and efforts to reduce disaster damage. It is not clear how the differential between strictly State functions and the national interest portion would be determined. Nor is there at present a clear indication of the amount of money needed for this support. This alternative does not address the question of the value of the approved programs in improving coastal use decisions. It assumes that there will be a large number of effective State programs, which will have the ability to control use of land and water in the coastal region. With regard to such national interest questions as protection of wetlands or other valuable coastal areas, the question is whether the coastal zone man- agement approach is the most cost-effective means or whether other methods would be more efficient. The same holds true for other national interests such as port modernization, energy plant construction, and disaster damage reduction. • Replace Reliance Upon Zoning and Permit Issuance With Outright Acquisition Acquisition of critical areas of concern would be a costly option. But there are possible alternative funding measures which would preclude the need for massive appropriations that could be used to protect especially valuable coastal areas. For example, existing Federal land purchase as- sistance programs could be amended to ensure that a fixed percentage is used in coastal regions. The Land and Water Conservation Fund, administered by the Heritage Conservation and Recreation Serv- ice, which receives a portion of its funds from offshore oil and gas operations, could be directed to apply a percentage of its matching grants for coastal recreation. Some of the other programs already used to pro- tect coastal areas might be increased or concen- trated in coastal areas if it were determined to be in the national interest. Examples include the Water Bank Act and Soil Conservation and Domestic Allotment Act in the Agriculture Department, and the Federal Aid in Sport Fishing Restoration Act (Dingell-Johnson Program) and Federal Aid in Wild- life Restoration Act (Pittman-Robertson Program) in the Department of the Interior. Assistance from disparate agencies such as the Economic Develop- ment Administration in the Department of Com- merce and the Department of Housing and Urban Development also could contribute to the protection of coastal resources. President Carter identified coastal wetlands (as well as inland bodies) and coastal barrier islands as two resources to be protected by the Federal Gov- ernment in his May 23, 1977, environmental mes- sage. He issued an executive order barring agencies from' taking actions leading to wetlands develop- ment and has requested recommendations on how to protect the remaining undeveloped barrier islands of the Atlantic and Gulf Coasts. The value of certain coastal resources is such that reliance on a zoning-permit program may not always be sufficient to withstand the tremendous pressures for developing coastal properties. In addition to the Administration's proposed initiatives, it may be ap- propriate to examine the utility of a broader "coastal resource conservancy" program that could consoli- date existing and proposed coastal acquisition and regulatory activities and perhaps add authority where needed to provide sufficient coverage to protect re- sources having national significance. Federal action could come in the form of payment to property owners to restrict development (purchase develop- ment rights), as in the Water Bank Act (for wildlife habitat protection), and thus avoid the high cost of buying coastal territory outright. Such a program could use the information developed in the coastal management effort to identify and rank the most valuable coastal features in danger of development as candidates for "coastal resource conservancy" as- sistance. Other resources could be protected by regulation such as wetlands now are. The fund IV-40 could be used in combatting shore erosion or as- sisting in harbor restoration projects. This approach would allow effective control of a wide range of valuable coastal features, such as coral, dunes, intertidal areas, islands, or wetlands. • Develop a Series of Special Assistance Pro- grams Within the Framework of CZMA The grants available for purchase of estuarine sanc- tuaries are in this category, as is the authorization for acquisition of islands and access ways to publicly held coastal attractions (Section 315(2) of the Act). Similarly, the coastal energy impact assistance in Sec- tion 308 of the Act is a special assistance program. Proposed in addition by the coastal office is a "coastal fishery management program," aimed at bringing about coordinated, interstate management of fishery habitats in the coast. The specific proposal is to provide funds through the new interstate grant authorization (Section 309) to the Regional Fishery Management Councils set up under the Fishery Con- servation and Management Act of 1976. An under- lying purpose of the fishery proposal, as with the energy impact assistance, is to provide an incentive for States to produce good coastal management pro- grams in order to qualify for the extra aid. Legislation has been introduced proposing Fed- eral assistance through the coastal zone management program to help States and communities deal with erosion problems, which are particularly important in the Great Lakes States. • Pinpoint Specific Areas of Critical Concern for Special Protective Measures Another approach would involve identifying those features whose retention in an undeveloped, or nearly undeveloped, condition is in the national interest: barrier islands, dunes, or wetlands, for example. Under this proposal, the Federal Govern- ment would direct the States and local governments, through regulations, to develop effective means of providing necessary controls over these specified areas if sufficient control did not exist. After a cer- tain period of time, if the Federal Government found that the State-local governments had not developed regulations or other means of control sufficient to protect the national interest, the Federal Govern- ment would take measures to ensure protection of the areas. Such preemption would, of course, cause controversy. The proposal should also include a mechanism for selecting coastal areas suitable for development. This approach deviates significantly from the existing coastal zone management effort. The existing program attempts to be comprehensive, i.e., provide policy for control over all significant use of coastal land and water resources for both protection and development purposes. This alternative would aban- don the comprehensive approach in favor of one focusing on the particular natural features of each area whose preservation or protection is important to the nation, and which selects prime development sites suitable for industrial and commercial develop- ment. The States and local governments would be given the opportunity to devise their own means of providing this protection and, failing that, the Fed- eral Government would intercede. Resources re- quiring special protection would range from beaches to dunes, shellfish beds, coral reefs, bluffs, salt marshes, or islands. This approach could be built on the present coastal zone management program. After internal debate on the issue, the Office of Coastal Zone Man- agement determined that the program act did not permit functional segmentation, by which States would be assisted in dealing with particular coastal resource problems. Instead, the regulations were written to permit geographic segmentation only where complete programs are required for a section of a State's coast. There is some thinking in the coastal management community that the basic Act does in fact permit a functional segmentation ap- proach and that for some States at least it might be both a politically easier and more effective way to proceed. • Recognize the Primacy of Local Control and Base a Coastal Zone Program on Local Gov- ernments This would recognize the reality that land-use planning and management in this country remains a basic local government responsibility and that any attempt by the States to recoup any degree of this jealously protected authority is difficult. Without major trade-offs, cities and counties are unlikely to relinquish any real measure of their self-determina- tion to those they perceive as a group of State bureaucrats. Using a combination of building, health, subdivi- sion, and zoning controls, there is little doubt that cities and counties could effectively guide and con- trol development in a manner which would protect coastal resources. The problem is that such controls may well not be in the economic self-interest of the local community, at least in the short run. An eco- nomic incentive is needed to persuade communities to protect critical coastal resources and guide devel- opment effectively, or in the alternative, a negative incentive. Positive incentives could include a credit based on local property tax revenues designed to compensate a community for restraining develop- ment in coastal regions, a step which might reduce its potential revenues. This would raise problems in administration. IV-41 Protection of Coastal Wetlands Barrier islands, beaches, coral reefs and wet- lands are important habitats for fish and wildlife, protection against storm surges, and features enjoyed for their recreational value and beauty. Recently, these coastal features have been considered as na- tional assets to be protected and preserved. This has not always been the case. In fact, early in the Na- tion's history it was Federal policy to transform coastal wetlands into "usable" real estate. The Swamp Land Acts of 1849, 1859, and 1860 ceded 65 million acres of wetlands to the States for recla- mation. 80 The Department of Agriculture encouraged so Council on Environmental Quality. "Our Nation's Wet- lands." Draft manuscript. Washington, D.C., 1977, p. 51. agricultural purposes until well into this century. Only recently, beginning in the early 1960s, did the public attitude toward wetlands change. Sym- bolizing this change in attitude, these productive, low-lying coastal lands are now termed "wetlands," whereas they were commonly referred to as "swamps" and "bogs" in the past. Drainage of wet- lands has been curtailed. The Soil Conservation Service of the Department of Agriculture no longer provides assistance for wetland drainage, except in extraordinary cases. 81 si Ibid., p. 70. Pressures From New Development Recently, new threats to wetlands have emerged. The former major threat from drainage for agri- cultural purposes has been replaced by the adverse impacts resulting from residential construction, com- mercial development (e.g., marinas, airports and in- dustry), and use for solid waste disposal. Notwith- standing the change in public attitude toward coastal wetlands, they continue to disappear at a rate of about 300,000 acres per year. 82 The extent of wetland losses over the distant past is unknown. The best available estimate of the original wetlands in the Nation places the total at about 127 million acres. An extensive survey per- formed in 1954 by the Fish and Wildlife Service of the Department of the Interior estimated the total then at 82 million acres (not including Alaska and Hawaii) — a loss of 45 million acres or 35 percent of the area. 83 Some areas have suffered significant losses. For example, the San Francisco Bay Conservation and Development Commission determined that the Bay has shrunk from 680 square miles to about 400 square miles due to filling of marshes and wetlands. Much of the impetus for protecting wetlands has come from the conservation movement. Fishing people, hunters, and naturalists with an interest in wildlife have prompted the preservation of wetland habitats. In conjunction with the general environ- mental movement, this has led to a concerted effort to protect wetlands at both the State and Federal levels. The current working definition of wetlands, devel- oped by the U.S. Army Corps of Engineers in con- junction with the Departments of the Interior and Agriculture and the Environmental Protection Agency, 84 is "Those areas that are inundated or sat- urated by surface or ground water at a frequency and duration sufficient to sup- port, and that, under normal circum- stances, do support, a prevalence of vege- tation typically adapted for life in saturated soil conditions. Wetlands generally include swamps, marshes, bogs, and similar areas." The Fish and Wildlife Service, working cur- rently on a new inventory of wetland resources, has classified 20 varieties of wetlands, including salt- water marshes, freshwater marshes, swamps, wet meadows, bogs, fens, and potholes. The Fish and Wildlife Service observes that while saltwater marshes are particularly valuable and of major na- tional concern, they comprise only 10 percent of the total national wetlands. 83 82 U.S. Office of the President, President's Environmental Message, May 23, 1977, p. 13. S3 U.S. Council on Environmental Quality, op. cit. note 80, p. 83. 84 U.S. Army Corps of Engineers. "Regulatory Program of the Corps of Engineers," Federal Register, Vol. 42, No. 138, Part If, July 19, 1977, p. 37128. 85 U.S. Department of the Interior, Fish and Wildlife Service. Wetlands of the United States, Circular 39, Washington, D.C., 1956. Importance of Wetlands Coastal wetlands perform a number of valuable functions. They are a prime source of food for a variety of finfish, shellfish, and wildlife. The produc- tivity of wetlands has been estimated at more than 10 tons of organic matter per acre per year — this exceeds the average production of rich farmland. 86 High productivity is due to the unique position of wetlands, which are enriched by the flow of fresh- so U.S. Council on Environmental Quality, op. cit. note 80, p. 25. IV-42 water and subject to daily tidal flooding by saltwater. Freshwaters bring minerals and nutrients; seawater circulates and mixes the nutrients. Because of the natural mixing, the estuarine envi- ronment where wetlands are located produces a variety of living organisms, from microscopic species to large numbers of fish and shellfish, birds, and animals. Many species, such as clams and oysters, spend their entire life cycles in the estuaries. Others, particularly very young shrimp, migrate from the sea to estuarine nursery areas. In these rich waters they grow to subadult size before returning to the sea to complete their life cycles. The anadromous species such as salmon and striped bass, pass through the estuaries to their spawning grounds farther up- stream, and the young return through the estuaries to the ocean. At least two thirds of the animal popu- lation of the ocean spends an essential portion of their life cycles in estuarine waters or depend on species that do. Waterfowl use wetlands as nesting and feeding areas, as do marsh-dwelling mammals. Wetlands perform a number of physical functions and chemical processes that have an intrinsic value. They store and slow the velocity of flood waters and high tides, thus protecting shorelands. Wetlands also absorb the energy of hurricanes and storm surges. Because wetlands can assimilate and retain nutrients, they serve as natural filters for nominal amounts of waterborne pollutants. Wetlands also increase the oxygen content of water as it passes through the eco- system and reduce the nutrient loads carried by transient waters. The economic value of wetlands is impossible to quantify, although dollar values can be assigned to particular edible products such as shellfish. The production of fish or wildlife, which are common property resources, accrues to society as a whole; the filling of a marsh for commercial purposes brings economic return to the owner of the private property, and perhaps a secondary return to society as well. The inability to balance long-term, societal benefits (fish and wildlife production, hazard protection, and pollution filtration) against imme- diate, tangible economic returns has led to the de- struction of wetlands and underscores the pressures to dredge or fill remaining wetland areas. Inflated property values, which continue to increase rapidly as available coastal land becomes scarce, is adding to the developmental pressures. The creation of "new land" by filling coastal marshes, while expen- sive, is a relatively cheap means of creating addi- tional real estate. Efforts to Protect Coastal Wetlands Federal Wetland Protection The initial effort toward wetland protection at the national level was in 1967 when legislation was in- troduced in the Congress to authorize the Secretary of the Interior to veto projects that would damage wetlands. Opposition to this proposal led to com- promise legislation (Title 16 U.S.C. 1221-1226) which directed the Department of the Interior to make a National Estuary Study, which was com- pleted in 1970. 87 A parallel study on estuarine pollu- tion was made by the Federal Water Pollution Con- trol Administration in the Department of the In- terior at about the same time. 88 Rivers and Harbors Act of 1899 (Expanded Review) A major change in the Federal role with regard to wetlands occurred in 1968 when the U.S. Army Corps of Engineers broadened the basis of its re- view of permits for dredging, filling, and the erection of other structures on navigable waters under Section 10 of the Rivers and Harbors Act of 1899 (Title 33 U.S.C. 401 et seq.) from strictly navigational con- siderations to broader ecological concerns. The ex- 87 U.S. Department of the Interior. The National Estuary Study. Washington, D.C., Government Printing Office, 1970. 88 U.S. Department of the Interior, Federal Water Pollution Control Administration. The National Estuarine Pollution Study. Washington, D.C., Government Printing Office, 1969. panded review process, known as the "public interest review" was 89 ". . . adopted in response to a growing national concern for environmental values as they related to our Nation's water re- sources and in response to related Federal legislation, such as the Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.) that required the consideration of some of these concerns in Federal decision- making." Although the Corps considered a broad range of environmental factors in the public interest review, it restricted its permit coverage to "navigable waters" of the United States. This definition narrowed the Corps' control over dredge and fill operations to only 15 percent of the Nation's wetlands. 90 The ex- panded public interest review procedure was upheld by the court in Zabel v. Tabb [430 F. 2d 199 (5th Cir., 1970); cert, denied 401 U.S. 910 (1971)] upon the denial of a landfill on the grounds that it would damage fish and wildlife. In 1972, the Corps ex- panded its definition of "navigable waters" to include waters subject to tidal action. 89 U.S. Army Corps of Engineers, op. cit. note 84, p. 37122. so P. S. Ward. "Section 404: A Controversial Program that Grew Like Topsy," Journal of the Water Pollution Control Federation, Washington, D.C., May 1977, p. 730. IV-43 Federal Water Pollution Control Act Amendments of 1972 The Federal Water Pollution Control Act Amend- ments were enacted with the objective of restoring and maintaining the quality of the Nation's waters through regulation of the release of pollutants at the point of origin. Section 404 of the FWPCA establishes a permit program, administered by the U.S. Army Corps of Engineers, to regulate the discharge of dredged or fill material into "navigable waters." Wetlands had been the major repository for these materials. The Corps continued to restrict the coverage of the new Section 404 permit authority to the defini- tion of "navigable waters" which it had adopted under the Section 10 program of the Rivers and Harbors Act. A suit, brought by the Natural Re- sources Defense Council and the National Wildlife Federation, resulted in a decision requiring the Corps to institute a dredge /fill permit program in all the "waters of the United States," as defined in the FWPCA — an interpretation much broader than "navigable waters" under the original definition. 91 In interim final regulations published in 1975, the Corps defined navigable waters 92 to include "Coastal waters, wetlands, mudflats, swamps, and similar areas; freshwater lakes, rivers and streams that were used in the past or are susceptible to use to transport interstate commerce, including all tributaries to these waters; certain specified intrastate waters, the pollution of which would affect interstate commerce; and freshwater wetlands, including marshes, shallows, swamps and similar areas that are contiguous or adjacent to the above described lakes, rivers and streams, and that are periodically inun- dated and normally characterized by the prevalence of vegetation that requires sat- urated soil conditions for growth and re- production." This definition was sustained in subsequent court decisions. 93 The U.S. Army Corps of Engineers' gradual ex- pansion of its permit authority, first in the scope of review of permit applications, and later on the waters to which it applies, was not a linear pro- gression. In 1975, the Corps issued a press release which included an announcement that Federal per- mits may be required by the rancher who wants to enlarge the stock pond, or the farmer who wants to deepen an irrigation ditch or plow a field, or the mountaineer who wants to protect land against storm erosion. Opposition to the enlarged Corps' permit program from agricultural interests was swift. The Secretary of Agriculture, Earl Butz, further raised the spectre that "millions of people" might be fined and im- prisoned. Suspicions of the Section 404 program within the agricultural community remain today and are reflected in several legislative proposals before the 94th and 95th Congresses to exclude most agri- cultural and forestry operations from coverage by the permit program. The Corps proposed to implement the expanded charter under the FWPCA in three stages: Stage one would cover traditional navigable waters and nearby wetlands — those areas which were covered by the Section 10 program under the Rivers and Harbors Act. Stage two expanded coverage to primary tribu- taries, navigable streams, and all lakes, beginning in September 1976. The third and final phase began in July 1977, extending coverage to all remaining waters. The operational definition of the areas covered by the Corps' permit programs, which were issued in the final regulations on July 19, 1977, include all "waters of the United States" as specified in the FWPCA, and distinguishes the Section 404 dredge and fill permits from the dam and construction per- mits required for navigable waters in the Rivers and Harbors Act. There have been two responses to the outcry that greeted the prospect that ordinary farming activities would be subject to a Corps of Engineers permit: First, the Corps has instituted a "general permit program" authorizing minor discharges for which individual permits are not needed, e.g., shore pro- tection, highway projects, logging roads, erosion con- trol, minor buried pipeline crossings, boat ramps, mosquito ditches, bulkheads, highway maintenance, culverts and other stream crossing structures, fishing reefs, summer dams for water conservation, and trenching. 94 Second, the Corps announced the issu- ance of "nationwide permits," which exempt certain smaller water bodies and certain types of discharge from the individual permit requirement. Congress recently reviewed the current Corps per- mit program dealing with dredge or fill materials. In the 94th Congress, the House of Representatives adopted an amendment to the FWPCA that pro- posed to restrict the coverage of the permit program. The Senate adopted a different version; the two oi NRDC v. Callaway, 392 F. Supp. 682 (D.D.C. 1975). »2 U.S., Army Corps of Engineers, op. cit. note 84, p. 37124. 93 U.S. vs. Holland, 373, F. Supp. 665 (M.D. Fla., 1974) et seq. 9-t U.S., Environmental Protection Agency, Fact Sheet, "Imple- menting Section 404 of P.L. 92-500," spring 1977, p. 2. Although initially misunderstood by many, the present program does not regulate normal farming, ranching, and forestry practices that do not involve discharges of dredged or fill materials into waters of the United States. Thus, the program does not apply to such activities as blowing, seeding, cultivating, and harvesting for the produclioi ^ f food, fiber, and forest products. IV-44 bodies were unable to agree in the Conference Com- mittee, and the 94th Congress adjourned without taking final action on the amendments. Recent amendments to Section 404 of the FWP- CA enacted by the 95th Congress (Clean Water Act of 1977) provide for increased State determina- tion of normal farming, silvicultural, and mining activities and also for the issuance of general, re- gional, or national wetland management permits. 95 The amendment conforms to the recommendations of President Carter in his environmental message to allow States to "assume responsibility for carrying out major portions of this [Section 404] program." 96 The amendments to Section 404 also exempt Fed- eral projects from the permit requirements if the project is undertaken solely by the Federal Govern- ment, subject to procedural limitations. To qualify for exemption from dredge or fill permits, projects must, in addition to being fully funded by the Fed- eral Government, be directly authorized by the Con- gress. Moreover, an environmental impact statement (EIS) must be submitted to Congress before authori- zation or appropriation action. The EIS must in- clude a detailed description of all environmental effects expected to result from the project. Estuarine Sanctuaries (Coastal Zone Management Act) The Coastal Zone Management Act [Section 315(1)] authorizes the Secretary of Commerce to make matching grants of up to 50 percent to States setting aside estuarine areas for research purposes. The concept is that by keeping a representative number of estuarine areas in natural or near-natural states, field laboratories will be provided to re- searchers to measure changes in similar, but unpro- tected, areas. Five national estuarine sanctuaries were desig- nated at the end of fiscal year 1977. They are: 1) In Florida, the Rookery Bay Sanctuary, totaling 8,500 acres (6,000 acres of which are al- ready protected). It is an example of a West Indian biogeographic region estuary. Federal grant: $1,- 500,000. 2) In Georgia, a 6,150-acre sanctuary has been established on Sapelo Island. It is a sample of the Carolinian biogeographic area estuary. Two grants totaling $1,550,000 have been made, and acquisition has been completed. 3) A grant of $200,000 has been awarded to Hawaii to assist in acquiring the Waimanu Valley estuary on the north coast of the island of Hawaii. 9 5 U.S. Senate. Clean Water Act of 1977. Report. Washington, D.C., Government Printing Office, 1977, pp. 199. 96 U.S. Office of the President, op. cit. note 82, p. 13. This 5,900-acre sanctuary is representative of the insular biogeographic region. 4) A grant of $894,152 has been made to the State of Ohio to assist with acquisition of the Old Woman's Creek Sanctuary. The 637-acre site will be a sample of a Great Lakes biogeographic region estuary. 5) In Oregon, the South Slough of Coos Bay is the site of a 4,200-acre sanctuary, a sample of the Columbian biogeographic region. Grants totaling $1,804,813 have been made, and acquisition of the land was 74 percent complete at the end of fiscal year 1977. Both the Sapelo Island and South Slough sanctu- aries are considered operational; the other three are in the real estate appraisal stage. The Coastal Zone Management office projects a total of 18 to 20 different types of estuarine areas in the country as the optimum number needed for acquisition to preserve a sample of each type of estuarine area. Other Related Federal Statutes The Fish and Wildlife Coordination Act (Title 16 U.S.C. 661 -667a), operating through an interagency agreement, provides for all Corps permit applications to be reviewed by the Fish and Wildlife Service of the Department of the Interior as well as by the En- vironmental Protection Agency, and the National Oceanic and Atmospheric Administration (NOAA) in the case of permits affecting the marine environ- ment. Any Federal agency's proposed modification of a water resource is subject to review. The National Environmental Policy Act of 1969 (NEPA) (Title 42 U.S.C. 4321-4347) is landmark legislation that requires Federal agencies to consider all environmental aspects of each permit application, or other "Federal action," and provide for citizen participation and public intervention in the decision- making process. Three Federal assistance programs have been in- strumental in acquiring, protecting, and, in some cases, developing wetlands and beach areas. The Pittman-Robinson Act of 1937, based on a tax on sporting goods earmarked for the States, has been used extensively in coastal States to acquire and protect wetlands. The Fish and Wildlife Service has administered the act. Funds from the Land and Water Conservation Fund have been used for coastal acquisition, protection, and development as well as for developing boat launching areas and access ways, constructing fishing piers, and developing artificial reefs. The Dingell-Johnson program (based on a Federal tax on fishing equipment) has been ear- marked for the States and administered also by the Fish and Wildlife Service. It has been used to pur- chase fish habitats, thereby providing additional wet- land protection. IV-45 State Wetland Protection With responsibility for wetland protection moving toward State administration of dredge and fill activ- ities, the future success of wetland preservation will depend upon the effectiveness with which the coastal States can deal with the conflicting pressures for development on one hand and environmental pro- tection on the other. Local governments view State intervention in land-use matters with equally as much disdain as States have viewed the intervention of the Federal Government. The extent to which the States will be able to manage and resolve the con- flicts and effectively protect wetland values is yet to be determined. Thirteen coastal States have laws specifically pro- tecting wetlands. The first was Massachusetts in 1963. In addition, statutes in 17 coastal States pro- vide some measure of protection for wetlands as part of general environmental or land-use programs. The 13 States with direct wetland controls are: Connecticut, Delaware, Georgia, Maine, Maryland, Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North Carolina, Rhode Island, and Virginia. States having broader multipurpose programs that include wetland protection compo- nents are: Alabama, California, Delaware, Florida, Hawaii, Maine, Maryland, Minnesota, New Jersey, North Carolina, Oregon, Rhode Island, South Caro- lina, Texas, Virginia, Washington, and Wisconsin. 97 In some cases, States have both types of laws. Sample States which exercise control over the use of wetlands include: Wisconsin, which regulates wet- 9 7 Environmental Law Institute, "Strengthening State Wetland Regulation," Draft manuscript, Appendix A and B. Washington, D.C., 1977. lands through its shoreland zoning act and dredge and fill permits in navigable waters; Oregon, where the State land use program is the vehicle; and Florida, where the Keys are under the protection of a critical area program. The South Carolina Coastal Act, adopted in May 1977, expressly provides a State permit program for wetlands as a key function of its coastal council. Eleven States provide for direct regulation of wet- lands under the State police powers, although there is a current trend to modify this power with more authority being claimed by local governments and municipalities. Generally, the statutes authorize a natural resource or water resource agency to issue permits for specific activities, according to criteria specified in the statute. Another approach, first undertaken by Massachusetts, is to issue administra- tive orders for specific wetland areas, designating what can and cannot be undertaken in a specific geographical region. If the order is determined by the court to constitute a taking of private property, the State acquires the property in fee under its power of eminent domain or acquires an easement for the area. Four States (Virginia, Connecticut, New York, and Massachusetts) rely on local governments to administer a permit program to regulate use of wet- lands in accordance with State guidelines for mini- mum standards. State standard-setting for local administration is also featured in the broader multi- purpose shoreland and coastal zone acts operating in a number of States which provide wetlands pro- tection, namely California, Maine, Minnesota, North Carolina, and Wisconsin. A listing of State coastal wetland laws follows: State Statute Citation Connecticut Coastal wetlands Ch. 440, Sec. 22a-28 to 22a-31 Delaware Coastal wetlands Title 7, Sec. 6601 et seq. to Georgia Coastal wetlands Sec. 45-136— 45-147 Maine Coastal wetlands Title 38, Sec. 471 etseq. Title 12, Sec. 4751 to 4758 Maryland Coastal wetlands Title 9, Sec. 9-101 etseq. Massachusetts Coastal wetlands Ch. 130, Sec. 105 Coastal and inland Ch. 131, Sec. 40 wetlands Mississippi Coastal wetlands 49-27-3 et seq. New Hampshire Coastal and inland wetlands 483-A;l-a New Jersey Coastal wetlands 13:9A-2 New York Tidal wetlands Environmental Conservation Law Sec. 25-0101 etseq. North Carolina Coastal wetlands 113-228 etseq. Rhode Island Coastal wetlands 2-1-13 etseq. Virginia Coastal wetlands 11-46.1-1 Coastal wetlands 62.1-13 etseq. IV-46 A listing of State laws that include wetland regulatory components follows: State Type of statute Citation Alabama Coastal area Title 8, sec. 312-320 California Coastal area Pub. Res. Code 27000-27650 Delaware Coastal zone Title 7 Sec. 7001-7013 Florida Comprehensive Critical 380.05-380.055 Areas Act Hawaii Coastal shoreline setbacks 205-31 to 205-37 Statewide zoning 205-2 Maine Shorelands Title 12, sec. 4811-4814 Critical areas Title 5, sec. 3310-3314 Maryland Areas of critical State concern Article 88C Minnesota Shorelands 105.485 Comprehensive Criti- 116G.0. to 116G.14 cal Areas Act New Jersey Coastal areas 13.19-2 North Carolina Coastal areas 113A-100to 113A-129 Areas of environmental 113A-114toll3A-129 concern Oregon Beach area 390.605 to 390.990 Zoning 215.505 Rhode Island Coastal areas 46-23-1 South Carolina Coastal areas (R204, S280 signed May 24, 1977) Texas Public coastal areas 5415-1 Virginia Critical environmental areas 10-187 to 10-196 Washington Shorelines 90.58.010 to 90.59.930 Wisconsin Areas of critical or more than local concern 89-849 to 89-862 Local governments are claiming a larger role in determining the use and control of land and develop- ment within their jurisdictions. The implication of this trend for wetland protection under the shifting focus of police power within the States is significant. According to a recent study of State wetland pro- grams undertaken by the Environmental Law Insti- tute (ELI), the State-local relationship with respect to wetlands is changing in the direction of greater local involvement. After examining the State laws and discussing program administration with State and local officials, the ELI study 98 concluded that, "Despite some misgivings, state wetlands programs have moved toward increased local involvement. For example, the Mas- sachusetts coastal program which orig- inally placed primary permitting respon- sibility at the state level has shifted primary permit evaluation responsibility to 98 Environmental Law Institute, op. cit. note 97, p. 59. local conservation commissions. Similarly, a recent task force appointed by the Gov- ernor of Rhode Island to review the state inland wetland law, strongly urged an increased local role. The Maine coastal wetland act and the New Hampshire in- land wetland acts have also been amended to increase local responsibility. Basic enabling statutes in Virginia, Connecticut (inland wetlands) and New York (inland wetlands) place primary responsibility for wetland regulation at the local level." Thus, while initial State actions with regard to wetlands came both because the wetland resource often spans two or more local jurisdictions, and be- cause of the concern that local governments lacked resources and expertise to deal effectively with wet- land problems, there appears to be a shift back toward local control. The trend toward a stronger local role in land use decisions is also reflected in general coastal management. Marine Recreation The Nationwide Outdoor Recreation Plan pre- pared by the Department of the Interior's Heritage Conservation and Recreation Service (formerly Bureau of Outdoor Recreation), which was released in 1974, concluded that water was the nucleus for IV-47 most outdoor recreation activities." A similar con- clusion was reached by the Stratton Commission in its investigation of ocean and coastal issues released in 1969: "Outdoor recreation is becoming a massive rush to the water," concluded its Panel on Marine Resources. 10 " The most comprehensive evaluation of recreation to date, the Report of the Outdoor Recreation Resources Commission in 1962, reached the same conclusion. 1 " 1 As a result, the most direct, personal public in- volvement with the coastal region for the general public is related to the quest for recreational experi- ences. The lure of the coast attracts massive numbers of people from the interior of the Nation as well as from the adjacent coastal States themselves. There are several indications that this is so: • Recreational Fishing — In 1970, the Bureau of the Census found that about 9.5 million people over 12 years old went saltwater fishing three or more times per year and spent more than $7.50 per trip. Another study by the National Marine Fisheries Service, which included crabbing, clam- ming, and oystering, found nearly 1 1 million ma- rine recreational fishermen in 13 northeastern States. The rate of increase in fishing participation was estimated at over 6 percent per year. 102 The Heritage Conservation and Recreation Service estimates participation in 1975 has grown to 207 million days of saltwater fishing, resulting in the expenditure of $3.4 billion. • Boating — Recreational boating is a rapidly grow- ing activity. The Coast Guard in 1976 estimated that there were 12.7 million recreational boats in the country; three-quarters were powerboats. 103 • Beach Recreation — A broad cross-section of the general public uses coastal beaches as a recrea- tional outlet. Millions visit the public beaches near urban areas, such as Jones Beach or Coney Island in the New York City metropolitan area, and the beaches of Southern California. More than 70 million visited Long Island public beaches 99 U.S. Department of the Interior. The Recreation Imperative: The Nationwide Outdoor Recreation Plan. Published by the U.S. Congress, Senate, Committee on Interior and Insular Affairs, 93d Cong., 2d sess. Washington, D.C., Government Printing Office, 1974, p. 171. 100 Panel Reports of the Commission on Marine Science, Engineering, and Resources. Volume 3, Marine Resources and Legal-Political Arrangements for Their Development, Panel VII, Report of the Panel on Marine Resources. Washington, D.C., Government Printing Office, 1969, pp. VII-235. ioi U.S. Outdoor Recreation Resources Review Commission. Outdoor Recreation in America. Washington, D.C., Government Printing Office, 1962, p. 4. io- U.S. Department of Commerce, National Oceanic and Atmospheric Administration. Recreation — Marine Promise: Na- tional Conference on Marine Recreation. Washington, D.C., 1975, p. 74. 103 U.S. Coast Guard. Nationwide Boating Survey. Springfield, Va., National Technical Information Service, 1975. nearly 10 years ago, and the number is even larger today. 1 " 4 Overall park use in the Nation is on the increase, after a temporary setback during the fuel shortage of 1974. The National Park Service reported nearly 239 million visitors in 1975, up 7.5 percent from the previous year. 105 Similar increases were recorded in National Seashores and other marine-oriented facil- ities. To the generally middle-income recreational activ- ities of boating or offshore fishing, which are capital- intensive, must be added the recreational needs of the residents of the inner cities of the large coastal cities who are generally less mobile and less able to afford expensive recreational activities. Some of the needs of inner city residents are met by the parks and other public areas along the coast; however, additional needs of this urban group must be con- sidered in the context of the inner city where the people live. 106 Marine recreation is an economic stimulant. Sec- ond homes and commercial developments serving the recreational public generate tax revenues for States and local units of government. The tourist "industry" in general is enormous; according to the National Tourism Resources Review Commission, Americans spent $22.1 billion on travel and tourism in 1960- 61 and $47.5 billion in 1970, and will spend an estimated $119.7 billion in 1980. Most of the activ- ity takes place during the summer (36.5 percent), and the car was the means of transportation in 68^ percent of the cases. 107 A major part of the expendi- tures for travel and tourism was spent in the coastal region. There are several major public policy issues in- volved in meeting the Nation's marine recreational needs: (1) provision for public access to coastal areas, (2) provision of recreational opportunities equitably among various sectors of society, and (3) problems of dedicating public areas for specific uses that restrict alternative use by others. The Federal Government is limited in its ability to deal effectively with these problems. Much of the responsibility and legal authority lies with the States. The access-ownership question is intimately tied to State law and local customs. The equitable redis- tribution of recreational opportunities among the various sectors of society could involve major infu- 101 U.S. Army Corps of Engineers. National Shoreline Study. Washington, D.C., Government Printing Office, 1974, p. 182. 103 U.S. Department of Commerce, Bureau of the Census, Status September 1976. Washington, D.C., Government Printing Office, 1976. tor, New Jersey Department of Environmental Protection. Statewide Comprehensive Outdoor Recreation Plan. Trenton, N.J., 1973, p. 137. 107 U.S. National Tourism Resources Review Commission. Destination USA. Washington, D.C., Government Printing Office, 1973, p. 1. IV-48 sions of public funds and a certain amount of societal dislocation. Conflicts among competing rec- reational interests is complicated by the virtual im- possibility of reaching a consensus among divergent public and private interests, some of which are rep- resented by powerful lobbying forces. There is con- flict between recreational and preservation interests. Meeting urban recreational needs in the coastal region is perhaps the greatest immediate problem and may also offer the greatest opportunity for innovation and success to the States, cities and Fed- eral Government. Several cities have projects to re- vive older, often historic, waterfront facilities made obsolete by changing patterns of maritime trans- portation. In addition to attracting tourists and serving as residential and commercial centers, re- vitalized waterfront areas often included recreational opportunities for nearby residents. San Francisco, Boston, Newport, and Savannah are outstanding examples of waterfront restoration projects. The growing demands for the recreational use of coastal lands and waters must be considered in the context of the finite extent of the coastal area, its development for private use, and the spiraling cost of land acquisition to preserve such land for use by the public. As an example: A stretch of beach less than 1,000 feet long in Boca Raton, Fla., recently commanded a price of $3.7 million. Land prices near major metropolitan areas are even more drama- tic. The reservation of major portions of coastal land for public use is nearly impossible given the inflated coastal land values, the uncertain financial conditions of cities and States that find operating costs outdistancing tax revenues, and the limited amount of Federal funds available for land acqui- sition through the Land and Water Conservation Fund. Public Access to the Coasts Public access to beaches is a two-part problem: First, who retains rights to the use of beaches? Where does private property end and where do rights to public use begin? Second, if ownership of the beach margin is retained by the public, how does the public gain access to the shoreline across private property? These questions are complicated, because, under the American system of common law, each State is a separate sovereign and establishes its rules of law according to the historical customs and societal mores within that State. The evolution of State law from the Napoleonic Code in Louisiana, or Spanish land grants in Texas, can lead to sig- nificantly different rules of law than those of the States making up the 13 original English colonies. (See Appendix B.) Furthermore, each State has its own unique problems that tend to influence the evo- lution of law governing coastal use. Four legal theories are cited as entitling members of the public to the use — as distinguished from own- ership* — of beaches: (1) public trust doctrine, (2) theory of implied dedication. G) customary rights doctrine, and (4) theory of prescriptive easements. The last three theories are based upon the concepts of adverse possession and prescriptive rights and are grounded in the historical beneficial use of property by the public which in time ripens to a legal right, although that property may have been in private ownership originally. The trust doctrine, however, embodies the concept of sovereignty — residing in a governmental entity — which holds certain lands "in trust" for the public. Thus, the public interest in such lands is paramount to all private interests. While these four legal theories form the basis for resolving the issues of public vis-a-vis private rights in beaches within several coastal States, their ap- plication is more the exception than the rule. Most States continue to recognize the right of property, whether for coastal beach access or use of the beach itself. Most States also permit local government to limit the use of beaches to individuals based on prop- erty ownership or residence within the jurisdiction of the local government. The concepts of public use continue to change however. In 1976, the Georgia Court expanded public beach use in that State from the low-tide line to the high-tide mark. 108 Other complex legal ques- tions continue to arise, such as whether the public beach area expands when new beach is formed over the old existing tide lines or do the private rights of adjoining property owners move seaward, pushing the public areas out to the newly defined high-tide line? Oregon, Texas, and the Virgin Islands have enacted so-called "open beaches" laws in an effort to dis- tinguish the public and private rights to beach use by statute. The Texas statute was enacted in 1959 (Texas Ann. Stat., Sec. 5415(d), Vernon Supp., 1972). Sponsored by State representative (now U.S. Con- gressman) Robert C. Eckhardt, the Texas law seeks to: (1) preserve the public's rights to the use of State-owned and wet sand beach and so much of the dry sand beach as would be allowed under State com- mon law; and (2) acquire a public right to use the dry sand beach based on a legal presumption of a reserved right of the public to use that area, notwith- standing a grant by the State to a private owner. The Texas model has been introduced by Congressman i°s State of Georgia v. Ashmore et al., February 24, 1976, 236 GA. 401. IV-49 Eckhardt as a national legislative proposal in the 91st through 94th Congresses. Oregon has enacted two statutes which deal with public use of beaches: (1) Oswald-West Act (1910) and (2) the "Beach Bill" in 1967 (ORS 390.600). The former, based on Roman law, declares all the State's wet sand beaches to be public highways. The latter declares it to be a matter of State policy to maintain the sovereignty of the State "heretofore legally existing over the ocean shore," so that the public can have the "free and uninterrupted use thereof." Control of the shoreline between mean low and mean high tide was vested in the State to preserve the public's right to use the beaches, and authority for the State to acquire access across pri- vate property for the benefit of the public was granted concurrently. The Virgin Islands enacted the "Open Shorelines" statute in 1971 (12 V.I.C. 13). In addition to pro- viding for beach use by the public, it created an Open Beaches Committee, which was authorized to make a comprehensive study of the Virgin Islands shoreline, including a survey of the public-private ownership boundaries, maps of public access routes, and a classification of beach uses. It defines the shoreline as the area between the low-tide line and either (1) 50 feet shoreward, or (2) the natural vege- tation line "which spreads continually inland," or (3) a natural barrier — whichever of these distances was the least. Its constitutionality was upheld in the Bolongo Beach Case (VIDC No. 74-339, affd. 3d Cir., No. 75-1242 (1976)). The Virgin Islands statute does not provide for public access across private lands behind the defined shoreline. Access to Public Beaches Wherever the line of demarcation between private and public ownership (right to use) may be — mean high-tide line or mean low-tide line — the adjoining inland area is often private property. In many cases the public may have theoretical rights to beach use, but is often unable to gain access across the private dry sand beach. This is the case in California and Washington, for example. In some states, traditional usage allows the pub- lic a de facto right to transit and use the dry sand beaches; private property owners have the legal right to exclude the public from these areas, but do not. This mode of customary usage exists in Florida and South Carolina. Frequently, the general public may be excluded from entire reaches of municipal beaches, where pri- vate homeowners in a municipality resist the use of "their" public beaches by nonresidents. In New England many municipal beaches are either restricted to town residents or available only for a fee. Parking facilities are often limited or prohibited. As one journalist observed, "Any citizen can use the beach at East Hampton, Long Island, as long as he is will- ing to leave his car near Times Square and walk the rest of the way." ,0!1 While town beaches are under the control of a municipality, State and Federal facilities along the coast are open to the general public. The access problem for such areas may simply be lack of avail- able parking. The Cape Cod National Seashore in Massachusetts, for instance, is plagued by this prob- lem. The National Park Service limits parking avail- ability as a means of controlling crowding, which may affect the dunes, vegetation, and other natural features. 110 Public Beach Resources According to surveys undertaken by the Outdoor Recreation Resources Review Commission in 1962 and the U.S. Army Corps of Engineers Shoreline Study in 1971, about 6 percent of the Nation's total shoreline is in public ownership. This figure is sub- ject to considerable error, however, because sound data are not available on city and county coastal holdings identified on the basis of accessibility by fee or general admission; nor are data available for Federal installations with beachfront that might be accessible for limited recreational purposes. The most thorough review of public beach re- sources was performed by George Washington Uni- versity in 1962, in conjunction with the Recreation Review Commission (table 4-7). These data must be considered approximate, however. 111 Since these data were collected, the public coastal recreation estate has increased, owing in large meas- ure to the Land and Water Conservation Fund, which the Recreation Review Commission recom- mended in 1962. In particular, the Nation's author- ized or existing National Lakeshores and Seashores have increased considerably since the early 1960s (table 4-8). In an attempt to update the information on shore- front ownership and determine the amount of wet or dry sand beach in public/ private ownership by States, a questionnaire was distributed to each of 109 Calvin Trillin. "Some Reflections on Sand as Real Eslate," The New Yorker, November 1972. i" 1 U.S. Department of Transportation. Recreation Access Study. Washington, D.C., Government Printing Office, 1975, p. 139. in George Washington University. Shoreline Recreation Re- source of the United States. Washington, D.C., 1962, p. 12. IV-50 Table 4-7. — Statute miles of detailed shoreline, recreation shoreline, public recreation shoreline, and restricted shoreline, by major coastlines Shoreline location Detailed shoreline 1 Recreation shoreline Public recreation shoreline Restricted shoreline 2 Atlantic Ocean 28,377 Gulf of Mexico 17,437 Pacific Ocean 7,863 Great Lakes 5,480 U.S. total 59,157 9,961 4,319 3,175 4,269 21,724 336 263 121 134 296 127 456 57 1,209 581 1 Compiled from data developed by the National Ocean Survey, National Oceanic and Atmospheric Administration. Excludes Alaska and Hawaii. The shoreline includes beaches, bluffs, and marshes. 2 Military installations. Table 4-8. — National seashores, lakeshores, and gateways x Name and location Date Federal acres Total acres Apostle Islands National Lakeshore, WI. 9-26-70 Assateaque Island National Seashore, MD.-VA. 9-21-65 Canaveral National Seashore, FL. 1-3-75 Cape Cod National Seashore, MA. 8-7-61 Cape Hatteras National Seashore, NC. 8-17-37 Cape Lookout National Seashore, NC. 3-10-66 Cumberland Island National Seashore, GA. 10-23-72 Fire Island National Seashore, NJ. 10-9-65 Gateway National Recreation Area, NY.-NJ. 10-27-72 Golden Gate National Recreation Area, CA. 10-27-72 Gulf Islands National Seashore, FL.-MI. 1-8-7 1 Indiana Dunes National Lakeshore, IN. 1 1-5-66 Padre Island National Seashore, TX. 4-6-68 Pictured Rocks National Lakeshore, MI. 10-15-66 Point Reyes National Seashore, CA. 10-20-72 Sleeping Bear Dunes National Lakeshore, MI. 10-21-70 27,093 16,095 41,024 25,744 30,325 24,223 15,631 5,945 20,391 20,014 75,806 4,476 132,202 35,339 61,043 26,608 42,216 39,630 57,627 44,600 30,326 28,400 36,876 19,356 26,172 34,938 142,062 12,534 133,918 70,822 65,299 71,105 i Status as of June 30, 1977. the State coastal zone management offices which re- ceived Federal matching funds to prepare shore ac- cess plans from NOAA's Office of Coastal Zone Management (Appendix C). The responses to the questionnaire provide specific examples of the various types of problems associated with public use of beaches and shore. The problem presented by the public having legal rights to the lower or wet portion of the beach while the upper or dry sand area remains in private hands is well illustrated in California. Another major problem is demonstrated in both California and Florida where the land adjoining public coastal territory is in private hands. In Flor- ida's case, nearly three-quarters of this land is pri- vately held. In Maine the questionnaire response points up one of the problems posed by customary State law. In that State, as well as in others, private ownership of the coast is permitted to the low-tide water mark. This effectively blocks public use of the shore if private owners are permitted to enforce their rights. New Jersey is a case where control of the shore by municipalities is the dominant factor. Over one- half of that State's shore is owned by coastal cities and towns, which may or may not lead to prefer- ential policies for local residents. South Carolina is an illustration of a State where private holding of the coast is the rule. Over 100 miles of the State's coast is in private ownership as opposed to 65 miles in one form or another of pub- lic ownership. The questionnaire response, while varying in de- gree of detail and partial in coverage, illustrates in specifics the range of problems discussed in this sec- tion. Expanding the Public Beach Resource There are three forms of legal interest in land that provide the right of access: (1) ownership — posses- sion of title to the real estate, (2) easement — the right to enter, use, or pass across land owned by another without affecting the title of the owner; and (3) tenancy — leaser retains all of the rights of the IV-51 owner, based upon a contractual agreement. All three of these approaches have a role in providing additional coastal resources for public use. Acquisition by Purchase Purchase of coastal property in fee simple is the most direct and positive means of acquiring public beach and similar facilities. Federal aid in the form of matching grants to the States for purchase of recreational land, or transfer of excess Government land to the States, is available under several pro- grams administered by Federal agencies. The Land and Water Conservation Fund Act of 1965 provides the bulk of Federal funds available for purchases of recreational lands by the States and Federal agencies. The Fund has been expanded in recent years and now has a maximum authorization level of $900 million per year through 1989. The Fund, which is available for purchase of recreational land in any State, has been used extensively by the coastal States to acquire property in coastal counties (table 4-9). The information available provides no indication whether the funds expended in coastal counties were for shoreland or inland facilities. States have used their Statewide recreation plans to emphasize a need for acquisition and development of coastal areas, as well as for providing access to the coast. The Florida plan has directed that State's efforts toward providing accessibility to water recrea- tion areas, particularly coastal areas, for both ex- tensive recreation use and preservation purposes with limited recreation use. South Carolina and New Jersey have had several large projects that enabled them to protect permanently extensive salt marshes and barrier beach fronts from development while affording a number of outdoor uses on these lands and waters. Connecticut has been able to acquire several outstanding beaches through the program. California has used significant amounts of the fund for both acquisition and development of facilities that have increased recieational use of the coastal zone. Washington has used a significant portion of the fund for both large acquisition projects as well as numerous small projects such as boat access and parking areas that provide access to coastal lands and waters. Texas has acquired several coastal areas including a 2,000-acre state park. On the Great Lakes, a number of boat access and parking areas have been acquired and developed, which has sig- nificantly increased access to those waters in the States of Michigan, New York, Pennsylvania, and Wisconsin. Limits on the amount of State money available for matching Federal grants, however, reduce the prac- tical effectiveness of the Land and Water Conserva- tion Fund and other matching grant programs. Rhode Island has commented"- that, y "The State has considerable difficulty util- izing all [Heritage Conservation and Rec- reation Service] recreation funds within each disbursement year, even with local units of government and private donors contributing matching funds." Similarly, New Hampshire reports an inability to acquire coastal lands for recreation because the State is unable to match the major assistance programs of the Department of the Interior. The States are finding it increasingly difficult to raise matching funds in order to participate in the numerous Federal progams requiring Federal-State cost sharing. Table 4-9. — Total acquisitions by States in coastal counties compared with total Statewide acquisition from the Land and Water Conservation Fund 1 Coastal Per- county Statewide cent- State purchases purchases age Alaska $ 4,013,575.00 $ 5,431,424.50 73 Oregon 3,237,536.60 14,569,812.77 22 Washington 7,987,953.46 12,541,425.73 64 California 48,651,484.23 64,092,765.87 76 Hawaii 7,417,963.95 7,956,322.95 93 American Samoa 67,650.00 67,650.00 100 Guam 15,000.00 79,000.00 19 Illinois 21,298,551.78 48,284,595.19 44 Indiana 360,234.85 8,114,770.27 4 Michigan 9,510,374.34 18,218,671.00 52 Minnesota 298,592.00 16,118,140.69 2 Ohio 12,177,162.56 29,045,565.50 42 Wisconsin 4,070,620.86 16,413,422.33 25 Alabama 333,079.12 3,020.289.45 11 Florida 23,858,009.45 29,327,216.00 81 Georgia 436,500.00 10,409,070.23 4 Mississippi 74,542.00 2,193,803.49 3 North Carolina 2,414,779.54 10,729,165.45 22 South Carolina 2,779,777.97 7,394,460.22 37 Puerto Rico 367,985.00 480,969.00 76 Virgin Islands 253,740.25 818,984.11 31 Connecticut 13,992,301.28 19,054,021.41 73 Delaware 9,454,260.88 9.554,260.88 98 Maine 3,362,578.47 6,783,782.02 49 Maryland 11,850,059.49 19,843,281.91 60 Massachusetts 4,703,339.47 15,078,365.02 31 New Hampshire 94,139.25 3,642,023.97 2 New Jersey 6,021,381.42 14.008,542.66 43 New York 10,925,448.98 17,280,443.50 63 Pennsylvania 850,759.97 7,644,322.85 11 Rhode Island 3,131.186.47 3,181,922.35 98 Virginia 6,741,546.26 21,106,484.17 32 Louisiana 7,783,450.21 12,236,407.79 63 Texas 6,837,268.55 17.096,254.97 40 i This analysis w.is prepared by the Office of Coastal Zone Management, NOAA, from data supplied by the Heritage Con- servation and Recreation Service, Department of the Interior. Data ire cumulative figures from the implementation of the fund through December 31, 1976. n- Letter from Daniel Varin, Chief, Department of Adminis- tration, Rhode Island, to Robert Knecht, Acting Associate Ad- ministrator, Office of Coastal Zone Management, NOAA, June 27, 1977. IV-52 A number of innovative approaches to raise funds for acquisition have been suggested. The Shoreline Protection Alliance of Honolulu has proposed a pos- sible State-level solution, at least for States with large tourist businesses. In order to raise the funds needed to buy expensive coastal property in Hawaii, the alliance proposes a 4 percent hotel tax with the proceeds earmarked for beach purchases. Using the State outdoor recreation plan as its guide, the alli- ance estimates the Statewide need for additional public beach area at 1,200 acres by 1990, costing about $200 million. In contrast, the alliance reports, only $2.3 million was expended for beach acquisi- tions in a 2-year State capital budget of $470 million; likewise, the Honolulu City Council made available only $100,000 in 1976-77. The 4 percent hotel tax would raise $20 million per year and raise expenses for an average tourist by only 1 percent, the alliance notes. 113 In addition to a straight purchase arrangement, there are several alternative access purchase options which can be used: (1) acquisition and lease-back, ii3 Newletter of the American Association, March 1977, p. 1. Aore and Beach Preservation (2) acquisition and resale with restrictions on future use, and (3) acquisition by gift with possible restric- tions. Acquisition by Easement Methods of acquiring public use of property short of outright purchase can include the following: (1) acquisition of an easement, which could include the right of the public to use property as an access way; (2) dedication of a piece of property to public usage in exchange for a tax reduction or similar benefit; (3) property trade, in which land of equivalent value would be exchanged for shorefront land needed for access purposes; and (4) dedication of property to public use as part of a subdivision approval. Use of the subdivision ordinance authority by local governments, now widely practiced for school sites and parks, could readily be applied to the shore access question in undeveloped coastal areas. The same applies to local property taxes; these could be lowered to property owners permitting public use of their land in shore areas. State and Federal taxes might be examined for similar "breaks" that might be applied to property owners who grant the public certain prescribed uses of their land. Proposed Federal Beach Legislation Between 1969 and 1975, Congressman Robert C. Eckhardt (D.-Tex.) has introduced bills in the Con- gress aimed at opening all ocean and Great Lakes beaches to the general public "for use as a com- mon." 114 The Eckhardt proposal is based on the premise that the public has an inherent right to access to and enjoyment of the ocean. It seeks to realize this right of access by: (1) declaring that ocean beaches constitute a national resource and are therefore to be used by the public; (2) forbids barriers that restrict movement on or across beaches; (3) authorizes legal action in the name of the United States to impress beaches with a public usufruct; and (4) authorizes financial assistance to States for the acquisition of interests in beach and beach-related land. While the proposal acknowledges the importance of private property rights that might conflict with the i" H.R. 10394 (93d Cong., 1st sess.) is characteristic of the bills introduced by Congressman Eckhardt over the years. It would amend the National Estuarine Studies Act (16 U.S.C. 1221) by adding Title II thereto, and provide for administration by the Secretary of the Interior. intent of the bill, every Federal agency with a juris- dictional interest objected to the proposal and recom- mended against enactment. Constitutional arguments were posted against the proposal by the Department of Justice, while Professor Charles W. Black of Yale Law School argued in support of the constitutional integrity of the bill in the only hearings held on the proposal by the House of Representatives in 1973. There is little doubt that this legislative approach to clarifying the status of beach land would be the most direct way to bring uniformity and balance among the States in dealing with national shoreline problems. It could also possibly be the most inex- pensive means for creating public access to beach resources. It would most assuredly, however, result in complex and extended litigation concerning the constitutionality and power of the Federal Govern- ment to intervene in what is considered by many to be the legitimate rights of States to regulate and ad- minister property laws within their jurisdictions. The political path in the Congress would undoubtedly be difficult. Federal Programs Supporting Marine Recreation • Land and Water Conservation Fund Act of 1965 [16 U.S.C. 460]. This program is administered by the Secretary of the Interior, Heritage Conserva- tion and Recreation Service (formerly the Bureau of Outdoor Recreation). It authorizes grants by the Secretary to States on a 50-50 matching basis: (1) for planning for outdoor recreation, (2) for the acqui- sition of land for outdoor recreation purposes, and IV-53 (3) for the development of outdoor recreation facil- ities. It also authorizes use of a portion of the fund by Federal agencies in acquiring land for recreation and conservation purposes. Up to 60 percent of the Land and Water Conser- vation Fund (which had a total authorization of $900 million in fiscal year 1977) is available for grants to States (which include America Samoa, Guam, Puerto Rico, and the Virgin Islands); and States may pass all or part of the money on to local governments. In order to be eligible for a matching grant, a State must have: • An approved Statewide comprehensive outdoor recreation plan (SCORP); • Designated the State agency with whom the Secre- tary of the Interior is to deal; • Evaluated the demand for, and supply of, outdoor recreation resources in the State; • Established a program for the implementation of the Statewide plan; • Provided such other information as the Secretary may request; and • Provided opportunity for public participation in plan development. Since the inception of the fund in 1965, through 1968, more than $3.5 billion has been appropriated by Congress. Of this amount, $1,886 billion has been earmarked for use by the States and local gov- ernments and $1,625 billion has been used by Fed- eral agencies. In addition, the lands and facilities to be acquired must be open to the general public. Development of basic — rather than elaborate — facilities is favored. Priority is given to projects serving urban populations. Grants are not available for operation and mainte- nance. The recipient State must dedicate the facility to outdoor recreation in perpetuity and be respon- sible for its operation and maintenance. Under cer- tain conditions, State matching money may come from other Federal assistance programs, regional commissions, or donations. With regard to the portion of the fund for Federal agencies (no less than 40 percent of the fund), Congress must approve any actual acquisition. The land acquired must be for use in some national pro- gram, i.e., national parks, seashores, lakeshores, forest, wild and scenic rivers, trails, historic areas, wildlife refuges, etc. A national recreation area is managed by either the National Park Service, the Fish and Wildlife Service, the Bureau of Land Man- agement, or the U.S. Forest Service of the Depart- ment of Agriculture. Revenues from the sale of oil and gas from the Outer Continental Shelf (OCS) now constitute part of the Land and Water Conservation Fund. In the seven years following the enactment of this provision in 1969, a total of $1.6 billion was dedicated to the Fund from OCS revenues. 115 Proposals have been made to enlarge the share of the OCS revenues that are dedicated to the Fund and to earmark them for acquisition of public shoreline and access in coastal States. This would be in addition to the amount of matching funds now available to coastal States from the fund. • Heritage Conservation and Recreation Service Organic Act [77 Stat. 49 (1936), 16 U.S.C. 1-3]. Under this law, the Heritage Conservation and Rec- reation Service provides two forms of technical as- sistance to Federal agencies, State and local govern- ments, and private interests in relation to public recreation areas, facilities, and opportunities. 1 ) Information Assistance. — The Service main- tains an Outdoor Recreation Information Clearing- house that provides available information and data pertaining to the planning, developing, financing, and managing of outdoor recreation programs, and to research and educational activities relative to out- door recreation. There is no land acquisition under this program, and the Service provides no financial assistance. 2) Acquisitional Assistance. — With this aspect of the technical assistance program, the Service works with State and local governments and private inter- ests to obtain private contributions of land, money, or support for public outdoor recreation areas, facil- ities, and programs. Two methods are used, neither of which involves any stated eligibility requirements to be met by the recipient. The first method is for the Service or a State or local government to locate a land resource with public recreational potential, and then for the Service to work with that government in developing an ac- quisition program that private contributors can af- ford. To the extent that financial assistance is ob- tained, the land acquired is purchased by the State or local government and operated and maintained by it as a public recreation facility. The Service does not acquire the land, nor does it contribute any money for its acquisition. The second method is to identify any private in- terest already holding land with public recreational potential — including access to such lands — and at- tempt to persuade them to donate it to a State or local government for public recreational purposes. This donation can take the form of: (1) a gift in fee of the lands, (2) grant of a lease or easement, or (3) a management agreement between the donor and the State or local government in relation to the land. Again, the recipient State or local government is responsible for the operation and maintenance, not us U.S. Congress, House of Representatives, Committee On Interior and Insular Affairs. Hearing To Amend the Land and Water Conservation Fund Act of 1965, and to Amend the His- toric Preservation Act of 1966. Washington, D.C., Government Printing Office, 1975, p. 95. IV-54 the Service; and the Service provides no acquisition funding. During fiscal year 1976, 137,077 acres and 75 miles of trails, valued at over $25 million, were acquired pursuant to the acquisitional assistance method. • Federal Property and Administrative Service Act of 1949 [63 Stat. 385, 40 U.S.C. 484] in Con- junction With the Heritage Conservation and Recre- ation Service Surplus Property for Parks Program. This statute is administered by the Administrator of the General Services Administration (GSA). The parks program is administered by the Service. The law authorizes GSA to dispose of surplus Federal real property to State or local governments at dis- counts of up to 100 percent. Disposal for public park and recreational purposes specifically is author- ized. Under the program the Service actually handles conveyance of any such property to a State or local government. After GSA has declared a parcel of Federal real property to be surplus, both GSA and the Service send a "Notice of Availability" of the property to appropriate State and local governments. Upon re- ceipt of an acceptable application from the State or local government, the Service will convey it to the applicant. To be eligible, the applicant must, among other things, establish that the property is suitable for public park or recreation purposes and that, when developed, it will meet the recreational needs identified in its Statewide recreation plan. Any re- cipient is bound by the deed of conveyance to main- tain the property in perpetuity for park or recrea- tional purposes on pain of its reverting to the United States. The Service provides no funds for acquisi- tion. Operation and maintenance of the property is the responsibility of the recipient government. As of mid-July 1977, about 85,000 acres valued at $265 million had been transferred to State and local governments under the program. • Recreation and Public Purposes Act as Amended [44 Stat. 741 (1954), 43 U.S.C. 869]. This statute is administered by the Secretary of the In- terior (Bureau of Land Management, BLM). The Secretary may dispose of specified amounts of public land by sale or lease to any State, any political sub- division of a State, or to any nonprofit corporation or association for public recreational purposes. A re- cipient must make prior application to the Secretary for such land, demonstrating in the application (to the satisfaction of the Secretary) that the land is to be used for "an established or definitely proposed project." BLM holds little, if any, land in the original 13 States, Hawaii, Kentucky, Tennessee, Texas, and West Virginia. It holds most of its land in the west- ern noncoastal and non-Great Lakes States (although it engages in some coastal recreational activity, e.g., in the King Range National Conservation Area in California). Hence, very little land has been made available to coastal States; the exact amount is unknown. • National Park Service Act, as amended [39 Stat. 435 (1916), 16 U.S.C. 1]. This statute is ad- ministered by the Secretary of the Interior (National Park Service, NPS). The Secretary may establish seashore or lakeshore areas as national' recreational areas in the National Park System if the Congress authorizes the money for the purchase of the land in each individual instance. Historically, the areas ac- quired have been large and relatively undeveloped. They are open to the public, subject to certain re- strictions on use. The Park Service has designated ten national sea- shores and four national lakeshores. (See table 4-8). In addition, there are the Gateway and Golden Gate National Recreation Areas established in the New York and San Francisco metropolitan areas. • Sections 305(b) and 315(2) of the Coastal Zone Management Act of 1972 as Amended [86 Stat. 1280, 16 U.S.C. 1451]. This statute is administered by the Secretary of Commerce through NOAA's Office of Coastal Zone Management. Section 305(b)(7) of the CZMA requires that a State's coastal zone management plan include, among other things: "A definition of the term 'beach' and a planning process for the protection of, and access to, public beaches . . ." (emphasis supplied) Section 315(2) of the CZMA authorizes the Secre- tary to make grants to coastal States on a 50-50 matching basis for the purpose of "acquiring lands to provide for access to public beaches . . ." (em- phasis supplied). No funding has been available to implement this provision. • Other General Purpose Statutes. There are other Federal laws which, ancillary to their principal purposes, affect coastal access acquisition in varying degrees. Thus, under its Flood Insurance Program, the Department of Housing and Urban Development may purchase properties "damaged substantially beyond repair" by a flood disaster — including a hur- ricane — rather than pay the insured to reconstruct it, and then may sell, lease, or donate the property to a State or local government for at least 40 years for any use by that government, "consistent with sound management use." In this fashion, States and local governments could come into possession of coastal properties. Under the River and Harbor Act [46 Stat. 945 (1960), 33 U.S.C. 426], the Corps of Engineers is authorized to help States and local governments con- trol public coastal beach erosion through projects IV-55 not specifically authorized by the Congress. The Corps designs and constructs these projects up to $2 million or 50 percent of its cost for publicly owned shores (70 percent for public parks), whichever is less. This program assists in the reclamation of eroded public beaches. The Federal-Aid Highway Act [90 Stat. 442, (1976) 23 U.S.C. 319] authorizes grants to States and local governments by the Department of Trans- portation for the purpose, among others, of pro- viding roadside recreational areas, including access to these. To the extent that an ocean (or Great Lakes) highway was involved, this authority con- ceivably could be used for coastal beach area acqui- sition (highway-related recreational areas) and very probably beach-access acquisition. Equitable Use: Private vs. Public Interest The question of how to make coastal recreation opportunities available to all segments of the popu- lation is perhaps the most difficult policy question to deal with in marine recreation. Basic to the issue is the fundamental right of private property owners to enjoy the fruits of their labors. This increasingly has come to mean a piece of coastal real estate. Owners of such land naturally want to enjoy its use unim- paired. The rapid expansion of the second home market along the coasts, the condominium construction boom, and the growth of trailer parks are all indi- cators of increased private use of the coast. This expansion of private use has two immediate and ob- vious effects: (1) prices are driven up as demand increases, and (2) the amount of territory left avail- able for public purchase and use is increasingly smaller. On this latter point, the situation in Flor- ida may be more desperate than other States, but it is representative: 116 "With the land use and development con- ditions prevailing in Florida today, the years immediately ahead may afford vir- tually the last opportunity to set aside and preserve land areas of exceptional natural quality for perpetual public enjoyment." The private property owner's rights clash directly with the public's interest in having free and un- fettered access to the coast. This is no different than the situation throughout the country, it is simply that coastal territory is extraordinary valuable for both private pursuits and public pleasures. Hilton Head Island, South Carolina, puts the private vs. public coastal issue into perspective. The Sea Pines Plantation development there is a success- ful private venture noted for sound environmental principles and planning. The result is a resort with 1,300 homes and 1,154 "villas," in a well-designed and well-maintained luxury setting. For those who can afford the $100,000 lots and $225,000 houses, the setting is ideal. While not closed to the public, ($2 fees are charged), the island resort is essentially the playground of the very wealthy and the general public is effectively blocked from use of this portion of the coastal region. But to allow masses of people on a barrier island such as Hilton Head could mean that the carrying capacity of the island — its natural ability to absorb the impact of a large number of people and their cars — would be exceeded and the natural attributes of the island damaged. The developer of Sea Pines, Charles Fraser, has discussed publicly some of the problems involved in allocating coastal territory — and some of the ironies involved. In a presentation at the first na- tional coastal zone management conference, in June 1973, he said: 117 "I predict that when the National Park Service begins to propose plans for public use of Cumberland Island (Georgia), long sought as a national seashore area, there will be enormous pressures not to let many people use it. Let them go 'some- where else' — where is the 'somewhere else?' At this moment in time, the safety valve for the pressures of the population desiring the seacoast vacation is, in fact, the uncontrolled, raw, boiling, and often ugly, privately-owned public beaches. At the public beach of Myrtle Beach (South Carolina), every inch of which is privately- owned (sic), there are today more people spending the night than are in our national parks. The National Park Service is only given funds by Congress to hire 13,000 year-round employees. Disney World alone employs more than that. ... If we don't permit growth in response to economic demands, then we force the pricing mechanisms to say to many, 'You can't come,' or the most sophisticated reserva- tion-makers to make their reservations two years iri advance. If we let any jackass no Florida Department of Natural Resources. Outdoor Recrea- tion in Florida. Tallahassee, Fla., 1976, p. 9. 117 Council of State Governments. Proceedings of the Confer- ence on Organizing and Managing the Coastal Zone. Washington, D.C., 1973, p. 202. IV-56 that wants to take a natural community of two-story houses, such as exist in many of our coastline areas, and which have water systems and sewer systems designed for low density, and let him come in with a blockbuster and put in a 25-story con- dominium that produces more cares, more sewage, and more water by a five-fold mul- tiple than the entire community's prior development over a 40-year period, you create real problems. You do, indeed, however, help absorb the number of people who want to go to the coast." The private sector plays an important role in meeting the recreational demands of the Nation. This demand fuels market forces that make coastal recreation an attractive, income-producing venture. By its nature, however, the private sector is disposed toward those with money to spend on leisure pur- suits. The fundamental question is whether there is an acceptable balance between coastal lands retained for use by the general public, which may have limited surplus income to spend on recreation, and those areas in private ownership that are de facto dedicated to the use of the more affluent public. The proximity of recreational opportunities to the lower income public must be considered in determining whether such a balance exists. A county-by-county inventory of total recreational resources (private and public) is required to provide an insight into this problem. Such information is not now available, but could be readily compiled by State recreation, planning, and coastal zone man- agement agencies. The increased demand for coastal space for pri- vate housing, which is further inflating prices in the coastal area, is driving out low- and middle-income families in some areas. California notes that few low- and moderate-income accommodations are being built in the coastal region. The reasons? Rising land prices, high construction costs, increasing property taxes, the relatively limited amount of land avail- able, and the demand for higher cost facilities. "Many elderly and low-income people, for example, can no longer afford coastal living and are forced to live elsewhere," the California coastal plan con- cluded. 118 In addition, the California study found that rental units on the coast are being converted to condominiums, often forcing out elderly or moderate- and low-income residents unable to come up with the required down payments. The California Coastal Plan recommends a num- ber of policies to combat these trends, including use of the increased tax revenues from high-cost develop- ments to provide facilities, such as campsites, for low- and moderate-income families. Another aspect of the equity question is how well the needs of the urban poor are being met in terms of recreational opportunities. Congress, in increasing the size of the Land and Water Conservation Fund, directed that the Heritage Conservation and Recrea- tion Service emphasize urban needs in the future. In response to this mandate, the Service surveyed urban recreational needs. A draft summary released recently concludes that virtually all of the metropoli- tan areas studied had serious problems in providing recreation; that neighborhood facilities were the most desired type of recreational outlet, rather than larger regional, State, or Federal installations; and that short travel times and access by foot, bicycle, or public transportation were necessary for day-to-day use to accommodate those without automobiles. What the Service findings suggest is that "recrea- tion" has to be redefined from traditional middle- class precepts in order to function successfully in a city setting. The New Jersey State Outdoor Recrea- tion Plan makes the same point: 119 "The whim of the street is the personality of a city . . . Riverside Park in Manhattan is proof. [It] ... is given character by the suc- cessive neighborhoods it flanks. The vista is. . .intriguing, yet it is easily topped in variety by the range of activities occurring — folk dancing, fishing, baseball, jogging, dog walking, sleeping, soccer, golf putting, sandboxes, sitting, sunbathing, car wash- ing, car wrecking, picnicking, bike riding." The success of Riverside Park is ascribed to: (1) its multiple use as a recreational facility — there is something for everyone, (2) convenience and accessi- bility, and (3) community pride wherein neighbor- hoods identify with individual segments of the park — a sense of belonging. 120 A significant step in meeting the needs for urban recreation was taken by the National Park Service in establishing the Gateway Park complex in New York and the Golden Gate area in San Francisco. Although the Gateway Park has been criticized for being in- accessible to those without private transportation, 121 it has been praised by others for incorporating ad- vanced transportation planning into recreational facilities. 122 While recreational facilities that depend on the automobile present problems of access for the less mobile, most persons clearly prefer to travel by private automobile even when public transportation is available. 123 The Recreation Access Study commis- iis California Coastal Zone Conservation Commission. Cali- fornia Coastal Plan. Sacramento, Calif., 1975, p. 152. us New Jersey, op. cit. note 106, p. 146. 120 Ibid. i2i U.S. Department of Commerce, NOAA, op. cit. note 102, p. 179. 122 U.S. Department of Transportation, op. cit. note 110, p. 5. i-'3 Ibid. IV-57 sioned by the Department of Transportation, and released in 1975, found that most recreational plan- ning neither considers transportation access nor takes into account the needs of that part of the public which depends on public transportation. 124 Transportation and recreation have become even more intimately entwined with the need for energy conservation and the goal of reducing air pollution caused by auto emissions. Boston's Revere Beach is one of the few examples of a coastal public beach 12 i Ibid., p. 10. 125 Ibid., p. 145. facility that is adequately served by high-speed public travel on the rapid rail line. 125 However, few urban areas are blessed with high-quality beach facilities as close to the inner city as Boston. The long-range effects of higher fuel costs on recreation need to be examined. There are already indications, some researchers report, of a trend toward fewer visitations, but of longer duration. Demand forecasts for marine recreation need to take into account expected higher transportation costs in the future as well as increased costs of operating boats. Conflicting Uses With increased demand for recreational space coupled with a dwindling acreage of suitable land available to serve the recreational public, pressures on the coast are mounting. Recreational activities are as diverse as the public itself. New forms of recreation are developing rapidly through the evolu- tion of technology and innovation. Many of the new uses impose changing demands on coastal recrea- tion facilities, and further complicate the conflicts between active and passive recreational pursuits. Dune buggies, dirt bikes, and hang-gliders were rarities on the beaches a number of years ago. To- day, these offroad vehicles and airborne craft are claiming an equal right to beach access. Such activi- ties conflict with a number of "traditional" coastal- oriented activities, e.g., bathing, hunting, bird and wildlife watching, and surf fishing. The problem of resolving conflicts among compet- ing uses is illustrated in the Gateway Natural Recrea- tional Area in New York. The pressures here are magnified by the estimated 20 to 30 million visitors who will use the four segments of the gateway in the future. The four units of the Park have been historically used by nearby residents of Sandy Hook, N.J., and Staten Island, Jamaica Bay, and Breezy Point, N.Y. Local residents are only one interest group that the National Park Service must accom- modate; they are the majority users and are not generally amenable to the recreational areas being made easily available to masses of "outsiders" — particularly inner-city residents. Other segments of the tax-paying public bring counter pressures. Fishermen want to bring their surf vehicles to the shore; boaters demand expanded marina facilities and boat ramps; model airplane enthusiasts want space to pursue their hobby. Environmentalists, on the other hand, prefer that the areas be left in a natural state, even though the Park is on the doorstep of New York City. The National Park Service (NPS) has agonized over the transportation problem in the face of simi- lar opposing forces. Parking has been partially re- stricted, and bus service, rather than rail transporta- tion, was chosen for commuters. A ferry service is also being considered. The NPS has proposed building several "Gateway Villages," which would accommodate a variety of activities, including gardens and recreational facili- ties. The Sierra Club, on the other hand, is con- cerned that the centers will become "urban amuse- ment and athletic centers." In fact, the Sierra Club sees the pressures on NPS to accommodate major active recreational functions as a key test of the National Park System. The Sierra Club anticipates that with State and local governments strapped for recreational funds, there will be increased pressure to fill the recreational void in national recreational areas. Environmentalists view areas like Gateway as the last . chance to preserve some near-natural areas for the education and enjoyment of the urban resident. 126 i2R Anon., "Gateway — the Promise and Problem of National Urban Recreational Areas," Siena Club Bulletin, Summer of 1977, p. 33. Role of the Private Sector The private sector plays a major role in providing the public with recreational opportunities. Overall, private recreational lands (coastal and noncoastal) exceed the acreage of public recreational lands: 504 million acres in private ownership, and 491 million acres in public ownership. 127 The marine 127 U.S. Department of the Interior, op. cit. note 99, p. 95. recreational industry, while difficult to assess, is estimated to have been a $5.5 billion activity in 1972 and is expected to grow to $12 billion by the year 2000. 128 i2s U.S. Congress, Senate, Committee on Commerce. The Economic Value of Ocean Resources to the United States, by Nathan Associates. Washington, D.C., Government Printing Office, 1974. IV-58 There is an abstract quality about recreational experiences that defy mechanistic analyses. A trip to Malibu Beach, California, may be as much to see the houses of the famous as to use the public beach facilities. Or a trip to the Cape Cod National Seashore may involve visits to antique shops and country inns as much as wading in the surf. A trip to Atlantic City or Miami Beach may be prompted as much by the commercial attractions as by the quality of the public beach. Coastal recreation is often a multifaceted mixture of public and private activities interspersed with natural and secular experiences. There are major industrial installations with recre- ational potential, such as powerplant sites, timber company lands, and petroleum company holdings. In 1972, the Department of the Interior held a series of regional meetings on recreational issues, at which the relative roles of the private and public sector were discussed. The delineation between the government role and the role of private enterprise was found to be unclear. The participants reached the following conclusions: 129 129 U.S. Department of the Interior. America Voices Its Recre- ation Concerns. Washington, D.C., 1972, p. 36. • Private enterprise should play the primary role where charges are to be made for facilities or services and there is a reasonable prospect for profit. • Commercialized forms of recreation should be left to private enterprise, while government should provide the public with natural, historic, cultural, and archeological sites. • Private enterprise should work closely with public agencies in planning and providing recreation facilities. • Private operations should be kept free of undue competition from public operations. • The public should recognize that investment by private enterprises reduces the need for public recreation investment. • Private enterprise should act as a partner and constructive critic of government's recreational enterprises. It is clear that the general public considers recrea- tion to be a joint venture between public and private interests. Coastal recreation is not mutually exclusive. Recreational planning must optimize the mixture of private and public enterprise to best serve all sectors of the user public. Ocean and Coastal Hazards Introduction Along with the fabulous resources of the coasts and oceans comes a distinctive set of natural coastal hazards that should be considered in public and pri- vate decisionmaking. The ten most important natural hazards (table 4-10) occur with some regularity. For example, in the document entitled, Some Devas- Table 4-10. — Natural hazards of U.S. oceans and coasts Area affected Hazard Ocean Coast 1. Hurricanes and storm surges X X 2. Floods and flash floods X 3. Tornadoes (water spouts) X and severe storms X X 4. Earthquakes X 1 X 5. Tsunamis X 1 X 6. Coastal erosion X 7. Land subsidence X 8. Landslides X 2 X 9. Avalanches X 2 X 10. Volcanoes X 3 X i Earthquakes and tsunamis are related. They affect ocean users primarily through tsunamis, the effects of which are pri- marily near shore where water shoals as it approaches the coast. 2 Effects of landslides and avalanches on the ocean are the resultant localized tsunamis. 3 Volcanoes can create new islands or undersea barriers for ships. Earthquakes sometimes occur with major volcanic action. fating North Atlantic Hurricanes of the 20th Cen- tury, the National Oceanic and Atmospheric Admin- istration tracks 54 selected hurricanes that hit the coastal areas of the Gulf and Atlantic coasts; in these storms 11,720 people lost their lives and bil- lions of dollars of damage was done. 130 The list, of course, only includes a fraction of the total hurri- canes that disrupt shipping and threaten the coast each year. An example of a less dramatic but still significant hazard is erosion, a major problem along one-quarter of the Nation's seacoast. Earthquakes are not only a major hazard along much of the Paci- fic coast, but also are a potentially devastating, al- though generally unrecognized, hazard to densely populated areas of the Atlantic coast. While these hazards vary in scope and intensity, all of them must be recognized, and plans for the management, miti- gation, and recovery from the coastal hazards and their effects warrant a high priority. Although some steps have been taken by private parties, especially attempts to develop protective sys- tems, the primary responsibility for developing pol- icies and plans of action has fallen to Federal, State, and local governments. A high level of scientific expertise is required to develop an adequate under- standing of what causes natural hazards, when they may occur, what forces are involved, what damage IV-59 or danger is likely, and what steps should be taken so that they do not become disasters. In addition, heavy investment in scientific equipment and other support systems is usually involved; therefore, the public turns to the government for programs to deal with these problems. Natural Hazards Many of the dangers to people and property that are created by natural hazards are similar even though caused by different natural forces or condi- tions, and many of the applied methods of manage- ment and mitigation are similar. The ten major coastal hazards and the particular types of danger and damage involved follow: 131 Hurricanes are storms that develop in the tropics and attain windspeeds of 74 mph or greater, accom- panied by dangerously high seas. The most destructive part of these storms is found within 50 to 75 miles of the center, yet lesser winds and seas can cover areas as large as 600 miles in diameter. Hurricanes can affect almost all of the U.S. coastline (including U.S. territories), except in the eastern Pacific where they have little impact north of Southern California. The hurricane's storm surge and high seas are the greatest threats to life and property. They account for 90 percent of the fatalities and about 60 percent of the property that is destroyed or receives major damage. Storm surges are caused by air pressure differences between the hurricane and the rest of the atmosphere. However, the actual impact of the storm surge on a specific area depends upon many other factors (e.g., shape of the coastline, depth of the coastal water, speed of movement of the hurricane). The other dangers from a hurricane include high winds, heavy rains, and tornadoes. While hurricanes have average speeds of 10 to 15 mph in the tropics, they tend to move faster as they go further north. Some have reached forward speeds of 40 mph or more, leaving little time for the coastal population or mariners to prepare for them. Coastal floods, or inundations of flood plains, usually affect larger areas in the South Atlantic and Gulf States than in the Great Lakes, New England, and Pacific States. Within the coastal area, the most vulnerable urban areas are along the Gulf coast, especially when they are near the mouths of rivers. The problem of flooding is aggravated along the Gulf coast by the fact that many of the urban areas have subsided. There are two major types of floods in coastal areas: localized flash floods may result when large amounts of rain fall in short periods of time, and coastal flooding may result from hurri- 130 U.S. Department of Commerce, National Oceanic and Atmospheric Administration. Some Devastating North Atlantic Hurricanes of the 20th Century. Revised 1977. isi Much of the material in this section on definitions is taken from: U.S. Department of Commerce, NOAA, Office of Coastal Zone Management. Natural Hazard Management in Coastal Areas. November 1976, pp. II— 4 through 11-74. canes. The flooding from hurricanes is of two kinds: flooding caused by the storm surge as seawater moves inland, and riverine flooding that occurs as rain runoff heads for the ocean. The major threats are loss of life, personal injury, property damage or loss, and ecological disturbance from freshwater or saltwater incursion. Tornadoes are violently rotating columns of air that descend from thunderstorm cloud systems. With a path averaging an eighth of a mile wide and mov- ing several miles at an average speed of 30 mph, tornadoes spread their destruction quickly, primarily through their high wind velocities, and then dis- appear back into the thunderstorms as quickly as they appeared. Although the highest incidence of tornadoes is in the Plains States, tornadoes are not inconsequential along coastal areas in Gulf and Atlantic coast States. To a lesser extent, the Great Lakes area also experiences tornadoes. Along the Gulf coast an added problem is large waterspouts that occasionally move inland as much as one-half mile. Tornadoes have been reported with hurricanes as they move ashore. In this case the tornadoes develop well away from the center of the hurricane and generally extend far inland in advance of the storm. Earthquakes occur when the massive plates of the Earth's crust, which are slowly moving in opposition, release a portion of the accumulated pressure. The level of destruction accompanying an earthquake varies according to the magnitude and intensity of the movement of the Earth, with most earthquakes causing little damage but major earthquakes having the possibility of massive property destruction with thousands of fatalities. The amount of danger is also based on proximity to the epicenter of the earthquake, the type of soil involved, and the types of structures that exist in any particular spot. Tsunamis, or seismic sea waves, are series of traveling waves of extremely long wavelength gen- erated by underwater disturbances in the Earth's crust, usually earthquakes, but sometimes explosive volcanic eruptions. Localized tsunamis can also be generated by subaerial or submersive landslides. These waves are much longer from crest to crest than ordinary waves, and as coastal waters become more shallow, the waves may build to heights of more than 50 feet above the normal tide level and strike coastal areas thousands of miles from their epicenter. Damage is caused by flooding, rapid IV-60 change in hydrostatic pressure, erosion, and collision with floating debris. Coastal erosion seldom threatens lives, but the economic costs are high along the 2,700 miles where erosion is a critical problem (primarily along the Atlantic and Great Lake shorelines). Coastal erosion occurs when more shore zone material is removed than deposited. 13 - It is a part of the natural shore- line process, but is a serious problem where develop- ment has occurred. As with all of the other hazards, the increase in potential hazard equates closely to the growing population in the coastal zone, especially since coastal land is demanding constantly higher prices. Erosion usually occurs through wind, water, gravity, or biological processes; ice may speed the process in the Great Lakes. Changing water level is the major long-term cause of erosion, but storms, with their attendant winds and waves, produce the most immediate and dramatic cases of erosion. Land subsidence, the sinking of surface ground, is a second hazard where the primary threat of loss is economic, although there can be loss of life in the rare circumstances where subsidence leads to failures of dams or levees. Subsidence of coastal lands leads to potential loss of low-lying lands to submergence, and even if not submerged the threat of flooding is increased. Subsidence may also threaten a wide variety of construction and developments that have occurred on the affected property. The major causes of surface ground sinking in Alabama, California, Florida, Louisiana, Texas, and Washington are fluid withdrawals, hydrocompaction, and drainage of peat lands, while in Illinois, Michigan, New Jersey, New York, Ohio, and Pennsylvania the extraction of solids is an additional major problem. Landslides are an endemic problem in the United States; however, the greatest level of danger in the coastal areas is in the Pacific States. A landslide is the "perceptible downslope movement of rock, debris, soil, or some combination of these mate- rials." 133 Because landslide-prone areas are aesthe- tically pleasing sites and rapid population growth has led to the development of marginally stable lands, the problems of loss of property and life are steadily increasing despite the strictly localized character of landslides. Avalanches are moving masses of ice and snow that accelerate as they flow down a mountainside until level or gently sloping land is reached. In the coastal zone, the only place where avalanches threaten is on the coast of Alaska. Because the popu- lation of Alaska tends to live in the narrow band of land between mountain and sea, the threat to property and life is relatively great, and it increases as the population mounts because of the necessity to use less advantageous areas for development. In an avalanche of any size, everything above ground level is swept away by the force of the moving materials. While both landslides and avalanches are caused by a variety of factors, they are especially related to earthquake activity, where they are major accessory phenomena. Volcanoes are a hazard along the coast of Alaska and in Hawaii. Volcanoes are openings in the earth, usually on the top or sides of a mountain from which issue molten rock or gas. The danger derives from lava flows (molten material) , pyroclastic flows (glass and rock fragments suspended in gas), volcanic mud- flows (mixture of fine material and water), and ash falls (small fragments of rock temporarily suspended in air and deposited, according to size, by wind). Although the hazards from volcanoes are relatively localized and eruptions occur infrequently, the dan- ger is ever present. 132 Per Bruun. "Beach Erosion and Coastal Protection," in Rhodes W. Fairbridge (ed), Encyclopedia of Geomorphology. New York: Van Nostrand-Reinhold, 1968. 133 TJ.S. Department of Commerce, NOAA, Office of Coastal Zone Management. Natural Hazard Management. Washington, D.C., p. 11-37. Elements of Natural Hazard Management As is usually true in the delivery of important services to the public, many persons at all levels of government and in the private sphere are involved in the five elements of natural hazard management considered below: Prediction and Warning The activity most familiar to the general public, because of the activities of the National Weather Service (in the National Oceanic and Atmospheric Administration), involves the prediction of, and warning about, natural hazards. The type of predic- tion and warning required tends to divide along the lines of occurrences caused by atmospheric condi- tions and those caused by geologic conditions (al- though this is only a very general division and the overlap of factors cannot be dismissed) . The Weather Service has three hurricane forecast- ing centers, and the Department of Defense has one. These four centers are responsible for selected areas of the Pacific, Atlantic, Gulf of Mexico, and Carib- bean Sea. Through the use of sophisticated proce- dures and equipment, these centers are able to track hurricanes and generally forecast their impact. This equipment includes a massive telecommunications network, satellites, reconnaissance aircraft, ocean data buoys, radars, and high-speed computers. Each center's forecasts and warnings are disseminated and IV-61 elaborated on by the numerous Weather Service coastal offices for hurricanes that affect the United States. The information provided to the public in- cludes hurricane intensity, expected storm surge height, coastal area to be affected, rainfall potential, tornado potential, and suggested protective measures. The amount of money spent on the hurricane warning system is an example of the cost of hazard activities. The basic budget for hurricane warnings in 1978 is $28,359,000, but this does not include any part of the cost for the regular forecasting or com- munication systems. Included in the budget figure are an environmental satellite system, the hurricane warning centers, hurricane research, and hurricane modification activities. Along the coastal zone, flash floods are the major threat of flooding not connected to hurricanes. For flash floods, an arrangement of watches and warn- ings is used. These come from Weather Service of- fices and are based on a variety of factors such as the amount of rain, soil saturation, and amount of runoff because of development. Tornadoes along Gulf coastal areas are primarily associated with developing storm systems and fre- quently start as waterspouts over the water which then move ashore. Tornadoes also are reported along the Great Lakes, although cold water suppresses development of such storms through most of the year. The Weather Service plays the major role in prediction and warning through the National Severe Storms Forecast Center, which issues the watches. Warnings are released by all Weather Service field stations. Watches and warnings are released through all available news media, especially radio and tele- vision. The coverage and release of these warnings vary considerably in effectiveness. Earthquakes, tsunamis, landslides, avalanches, and volcanoes are primarily caused by geologic con- ditions. Short-term prediction, so that citizens can be warned to take protective action, is relatively crude for these types of disasters; 131 however, sci- entists hope for major progress in this area during the next decade. The U.S. Geological Survey (In- terior Department) has an Earthquake Prediction Council that reviews data that could warn of an earthquake and issues predictions of earthquakes. 135 For the next several years, at least, the prediction of particular earthquakes will be primarily in a re- search and experimental phase. Landslides and avalanches cannot usually be pre- dicted on an individual basis. Gilbert White and !3-» U.S. Congress, Senate Committee on Commerce, Hearings on the Earthquake Disaster Mitigation Act of 1975, S. 1174. 94th Congress, 2nd sess., 1976. pp. 87-90. 135 U.S. Executive Office of the President, Office of Science and Technology Policy, Earthquake Hazards Reduction: Issues for an Implementation Plan (draft), pp. 25-32. Eugene Haas best describe the "state of the art" for both disasters when they note that: ise "Although physical studies and experience have provided numerous clues, avalanche forecasting is still generally considered an art rather than a science. The variables that determine when conditions are ripe for the triggering of an avalanche are nu- merous and complex." In all three cases, however, it is possible to pre- dict where the hazards exist. For earthquakes the hazards can be delineated through general risk maps (which show the potential for damages based on the frequency of recorded seismic events), prediction of the distribution of strong ground motion of earth- quake risk, and identity of ground conditions which lead to damage when shaking takes place. Locations susceptible to landsliding can be predicted — based on soil characteristics, geology, and related natural processes — but it is impossible to determine precisely the possible magnitude. Likewise, it is possible to predict the locations of possible avalanches by the signs of previous earth scouring and deforestation. The U.S. Geological Survey, National Academy of Sciences, and other groups are actively studying earthquakes and earthquake prediction. The U.S. Geological Survey has an active Landslide Reduction Program, and the U.S. Forest Service conducts re- search on avalanches on its land. All this informa- tion is now primarily of use in disaster preparation and long-term planning, not in short-term prediction of particular events. The Pacific Tsunami Warning Center in Ewa Beach, Hawaii, has the capability of predicting the time of arrival of a tsunami, but it is not possible to predict the size, and this problem has led to over- warning and some loss of confidence. Information on seismic activities is sent to the Center via com- munication facilities of the Department of Defense, the Federal Aviation Administration, and other domestic and foreign agencies. When an earthquake of large magnitude occurs in an area of the Pacific that favors the generation of a tsunami, the Pacific Tsunami Warning Center forecasts the time of ar- rival of the tsunami at selected points. A tsunami watch begins as soon as positive evidence of a tsu- nami exists; warning bulletins are released with ob- served wave magnitudes described and other perti- nent information included. These bulletins are sent to civil authorities in the five Pacific States, to vari- ous civil and military organizations, and watch and warning information is supplied to a number of foreign governments. The necessary actions needed im Gilbert F. White and J. Eugene Hans, Assessment of Re- search an Natural Hazards. Cambridge, Mass., MIT Press, 1975, p. 354. IV-62 to protect the public and minimize damage depend upon State and local authorities. The prediction of volcanic eruptions on Hawaii has been relatively successful. The Hawaiian Vol- cano Observatory (U.S. Geological Survey) has a working warning system and the less-violent types of eruptions that occur there allow adequate time for evacuation when necessary. Predictive capabili- ties for the Cascades and Alaskan volcanoes are minimal, nor has the warning system on the continen- tal United States been tested for this type of crisis. The U.S. Geological Survey is planning a system of surveillance of the inactive volcanoes of the Pacific Northwest using infrared sensing, and the 12 exist- ing volcanoes will be monitored intermittently by instruments. 137 Subsidence has, on occasion, caused failures of levees or dams; however, the largest number of cases are gradual and the direct hazard is economic loss rather than the loss of life. Because the problem is usually caused by man's removal of liquid or solid materials from the earth's crust, the ability to predict where the problem might occur exists through the examination of these activities and relating them to soil and subsoil conditions. The U.S. Geological Survey and the Bureau of Reclamation have looked into subsidence; however, little effort has been ex- pended in this direction to date. Gilbert White, et al., 13S note that few subsidence studies have been done at the Federal level. "At present, no national policy deals with land subsidence. However, because of the widespread nature of this hazard, such a policy may be needed. Justification for a subsidence warning program lies in the Disaster Relief Act of 1974, which declares the need for disaster warning with respect to geological catastrophes." The prediction of erosion creates a peculiar set of problems. White and Haas argue that warnings against imminent erosion should be made only when unrelated to wind or flood hazards. Even then, there is little that can be done, on short notice, to prevent erosion. Given the cost and difficulty of emergency measures and the relatively small number of struc- tures affected at any one time, it is probably desir- able to focus activity on forecasting long-term ero- sion possibilities. 139 Then appropriate planning and mitigation programs can attack the problem. Once again, the primary types of predictions and warnings are long-range forecasts in the form of risk maps that generally depict average rates of historical shoreline change as determined from earlier maps, charts, surveys, aerial photographs, and similar sources. The Federal Insurance Administration, Natural Ocean Survey-Coastal Mapping Division, and the Corps of Engineers all have an interest in this area and either produce Storm Evaluation Maps or other types of information such as Flood Plain Information Reports. Joe Moseley and Sally Daven- port point out that much of the information pro- duced does not reach the hands of citizens buying the land; for example, developers in Texas have not made the information available and have opposed State laws requiring disclosure of natural hazards. 140 The final effect of hazard mapping and similar work depends on the cooperation of, and its use by, the States and local governments in the various trans- actions and decisions involving erosion-threatened areas. It is up to these governments as to how they involve developers, buyers, and other interested parties in the decision-making process. Prediction and warning systems are essential in minimizing losses due to catastrophic events (those in which damages to property, human health, and social structure or processes are of such severity that recovery and rehabilitation is a long and trying process). Obviously, both the ability to predict the occurrence of such hazards and to warn the public of the impending dangers are important; research is necessary in the area of citizen reaction to warnings, because many people do not adequately respond to the warnings that they receive. 141 ' 142 Research has also shown that prediction warnings are just the first step in the chain that includes dis- semination and response. To ensure appropriate response, local authorities must develop local plans to change warnings into specific actions. 113 ' 144 The plans are ultimately no better than the reactions that they generate among the public. The only way natural hazard management systems will work is if people understand the hazards and the plans and 13 7 U.S. Department of Commerce, National Oceanic and Atmospheric Administration. A Federal Plan for Natural Dis- aster Warning and Preparedness. Washington, D.C., June 1973, p. 53. 138 U.S. Department of Commerce, NOAA, Office of Coastal Zone Management, op. cit. note 133, p. 11-73. 139 Gilbert F. White and J. Eugene Haas, op. cit. note 136, p. 360. i-*o Joe C. Moseley, II, and Sally S. Davenport, "Hurricane Damage Reduction and Coastal Management," paper presented at Coastal Zone '78, conference sponsored by Conservation Foundation, American Society of Civil Engineers, and U.S. Department of Commerce, NOAA, Office of Coastal Zone Man- agement, March 14-16, 1978, p. 16. 141 U.S. Executive Office of the President, op. cit. note 135, Hazard Reduction, pp. 8-9. i-*2 Gilbert F. White. Flood Hazard in the United States: A Research Assessment. Boulder, Colo., University of Colorado, Institute of Behavior Science, 1975, pp. 83-85. i+3 Benjamin F. McLuckie. The Warning System in Disaster Situations: A Selective Analysis. Research Report No. 9 Colum- bus, Ohio: The Ohio State University Disaster Research Center, 1970. !■*■* Dennis S. Mileti. Natural Hazards Warning Systems in the United States. Boulder, Colo., University of Colorado, Institute of Behavior Science, 1975. IV-63 believe in the necessity of following these plans. Unless citizens react to a warning and evacuate the seafront when a hurricane threatens, the plans will accomplish little (except lull those responsible for the plan into thinking that everything is all right). Paul J. Hebert and Glenn Taylor, in their study of hurricane experience levels on the Gulf and Atlantic coasts, point out that: 145 "Combined population increases since the last major hurricane for each area indicate that over 28 million people along the Gulf and Atlantic coasts have never experienced a direct hit by a major hurricane. This is over 75 percent of the Gulf and Atlantic coastal residents of the United States. Six states have not had a single direct hit by a major hurricane in this century, while almost 80 percent of the coastal population of Florida — the most hurricane-prone state — have a low hurricane experience level. "The main point to be made here ... is that most of the people who go through hurricanes experience either a relatively weak hurricane (categories 1 and 2), or an indirect hit (fringe conditions) by a major hurricane. Generally less than 25 percent have actually felt the most intense central core region of a major hurricane. This breeds potential disaster by creating a sense of false security for 75 percent or more of the "experienced" coastal resi- dents during the next major hurricane situation." Plans must be carefully examined to see that they are understandable and maintainable on the basis of new data and situations. Officials have an obliga- tion to formulate plans that will be found reason- able and to adjust those plans in response to citizen reaction. A second type of prediction is just as important, if not as dramatic; that is, the type of prediction that shows the long-range possibility of hazard, the type of hazard, and the magnitude of the danger. It is through this type of prediction that successful natural hazard management can take place. It re- quires historical information, trend studies, hazard mapping, development plans for the areas, and a wide variety of other information. While much is being done in this area, numerous tasks are incom- plete or not even started. Land Use Management The potential importance of land use manage- rs U.S. Department of Commerce, NOAA, National Weather Service. Hurricane Experience Levels of Coastal County Popula- tions — Texas to Maine, Washington, D.C., July 1975, p. 9. ment and regulation in hazard areas is pointed out by Earl J. Baker and Joe Gordon McPhee who say that: 146 "A recurrent theme in dealing with all of the natural hazards is the potential of land- use management to promote socially desir- able use of vulnerable areas in the United States. The rapid encroachment in the hur- ricane zone of the South Atlantic coast, the progressive invasion of industrialized flood plains, the design of mobile home parks without shelters against tornadoes, and the continued building upon land- fill in areas of high seismic risk illustrate the land-use changes which are occurring and which call out for sober consideration of risk involved. "For each of the geographical hazards it is apparent that attention should be given to ways in which land use planning may contribute to effective use of the soil and water resources, candidly examining the hard political considerations that shape what a community finally does about ex- posing itself to risk. In each case a needed study of land-use problems is closely linked with associated questions of control and protective work, warning and emergency action, insurance and relief and rehabili- tation." Land management can be a key to all of the vari- ous parts of natural hazard management because, through zoning and control of land use, major decisions are influenced as to how densely popu- lated hazardous' areas will be and what types of development and activities will be allowed. These factors then prescribe the type of protective struc- tures that are economically feasible, the kinds of needed evacuation plans, the kind of warning sys- tem, and the time when the warning must be received (based on escape routes, danger of those routes being closed, number of people who must use them, etc.), the kinds of damage that will be done and the number of lives that will be endangered, the costs of insurance and repair, and the length of rehabilita- tion for the community (so that it can function as a socioeconomic system). It is the control and mitiga- tion of these types of problems that forms the basis for all programs of natural hazard management and mitigation. Local governments usually have the primary responsibility for land-use management. Among the 1 ! "Plaintiffs' Trial Brief," American Petroleum Institute vs. Knecht, pp. 56-59. IV-78 sideration of the national interest. 180 State and Fed- eral officials, however, say that the California Act does establish clear-cut procedures for considering energy facilities and that it it acknowledges that some facilities may need to be sited even if there is envir- onmental deterioration. 181 The companies' brief also discusses the concerns behind the lawsuit. They feel that the California program is not explicit enough or detailed enough to give them any degree of certainty that their facilities will be allowed. 181 "An adequate management program re- quires certainty — particularly in the energy field, an area of recently expressed Con- gressional interest. . . . (T)he general poli- cies of the Coastal Act on this topic are devoid of any specific commitments to energy development which would accom- modate the national interest and meet the requirements of the CZMA." They also argue that the program is so vague that it "provides no guidance or basis of predictability for oil and gas producers who must submit plans that are consistent with and must be operated in com- pliance with the (program)." 18 " In short, they want assurances that California will not try to block their OCS operations, and they do not like the Cali- fornia program because it offers no such certainty. California argues that it is not "anti-energy," as the companies assert, and that what it wants are reasonable energy projects with environmental safe- guards. More to the point in this lawsuit, State and Federal attorneys argue that: 184 "the CZMA does not require such a 'legally enforceable' commitment (to accommo- date the national interest in the siting of energy-related facilities) but only pro- cedures for ensuring 'adequate considera- tion' of the national interest and that the State's program fully satisfied this require- ment." There is also the argument that there are other "national interests" to consider besides energy, in- cluding environmental protection. The Federal brief also argues that the companies' allegations that California will somehow abuse or misuse its program are "legally irrelevant." 185 iso Ibid., pp. 62-64. 181 "Federal Defendants' Motion for Summary Judgment and Memorandum of Law in Support of Motion for Summary Judg- ment," American Petroleum Institute vs. Knecht, particularly p. 51. 182 "Plaintiffs' Trial Brief," op. cit. note 179, p. 113. 183 ibid., p. 57. !84 "Federal Defendants' Motion...," op. cit. note 181, pp. 7-8. iss ibid., p. 4t~47n. "Even were the plaintiffs correct (about possible abuse), the remedy is not to with- hold approval of an otherwise valid Pro- gram, but to seek redress after approval against the individuals who are acting un- lawfully under it either under the CZMA or in the courts." Also contained in these briefs is an important policy question: will this California program, whether approved completely at the Federal level or not, actually help improve siting decisions, or will it, as the companies assert, only add to the confusion, lead to more court suits over what the statutes mean, and give States new powers to block needed national energy projects? One part of the final environmental impact state- ment on the California program sums up the argu- ment of the proponents of coastal zone management — and hence of what is called the "newer" approach to siting: 186 "It is . . . likely that the 305(b)(8) (energy planning) and 307 (consistency) provisions of the CZMA would work together to provide greater certainty and predictability for those applying for energy facility per- mits, and eventually speed up the permit procedure." Perhaps at the heart of this issue is the question of the strengths and limitations of "performance standards" ("siting criteria") of the type used in the California program. From the point of view of those who propose them, their preparation is not only a way to resolve political disagreements and formu- late basic policies, but also a way to avoid the need for raising "generic" matters in individual cases and to give guidance to both applicants and regulators. The State of California brief for this case discusses the advantages of making land-use decisions on the basis of performance standards instead of detailed zoning maps: 187 "Increasingly, the traditional zoning ordi- nance approaches have been found to be too rigid and inflexible for modern devel- opment activities. The traditional zoning ordinance does not provide an adequate means for responding to specific site con- ditions or specific attributes of a particular [proposed] development. Accordingly, many governmental entities have shifted from the rigid zoning definitions of the past to regulatory systems that define general permissible types of uses that will be reviewed in accordance with develop- ment and resource protection standards and criteria. This is the approach of the California Coastal Management Program." IV-79 But the lack of detailed, clear-cut zoning means that a company cannot be entirely sure its applica- tion will be approved, at least in its original form. Given the great costs involved in buying land and doing design work, this lack of complete predict- ability is unnerving and means additional risks and possible delays in needed projects. It also means considerable additional cost is involved in applying for a permit, negotiating with government officials about possible changes, and making agreed-upon changes in either the design or even the location of the facility. And the more the companies distrust the government administering the performance standards, the more unnerved they will be . In the final analysis, there appear to be one key fact and one main issue. The fact is that citizens, through their governments, want a larger say not only in the locating of energy facilities, but also in determining the need for them, evaluating the alter- natives, and setting the specific conditions (e.g., environmental safeguards) under which they will be allowed. And in trying to develop new siting proc- esses — especially a new government role — the coun- try increasingly is using the "new" approach to siting, one that uses performance standards. The issue is not only whether this new approach will "work" — and in many cases it is too soon to tell — but also whether anyone can devise a better way to accommodate all the relevant factors: the new activism of the public and the States, the need for new energy facilities, public and industry con- cern about added bureaucracy and paperwork, and industry's need for predictability and timely deci- sions. The challenge now seems to be this: either imple- ment and refine these new siting laws or else find workable alternatives to them. In any event, the siting procedures this country uses certainly will affect the course and timing of energy development in the coastal zone. Nonfuel Mining on the Continental Shelf Introduction The waters and floor of the seas and the sub- surface of the Continental Shelf are rich sources of minerals. In addition to fuels, quantities of barite, salt, and sulfur are produced from the U.S. conti- nental shelf. Magnesium is extracted from seawater. Oyster shell, dredged from the inner margins of the continental shelf in the Gulf of Mexico, is a source of aggregates and lime. There is a legal and administrative framework to govern exploration and development on the con- tinental shelf. The Federal jurisdiction over the sea- bed and subsoil of the continental shelf has been established by treaties, Presidential proclamation, judicial decision, and Congressional action. The Sub- merged Lands Act of 1953 granted the coastal States title to submerged lands seaward from the ordinary low-water mark to a distance of 3 geographic miles. For Florida and Texas, jurisdiction extended up to 3 marine leagues (approximately 9 miles) into the Gulf of Mexico. The Outer Continental Shelf Lands Act of 1953 is" U.S. Department of Commerce, Office of Coastal Zone Management. Slate of California Coastal Management Program and Final Environmental Impact Statement. Washington, D.C., August 1977, p. 158. is? Attorney General of the State of California, "Combined Memorandum of Law in Support of Motion for Summary Judg- ment, and Opening Trial Brief of the California Coastal Com- mission, American Petroleum Institute vs. Knecht, pp. 12-13. gives the Secretary of the Interior discretionary au- thority to regulate mineral leasing on the part of the continental shelf lying seaward from the outer limits of the State grants. Although there are few precedents in the admin- istration of the Outer Continental Shelf Lands Act for mining hard minerals, the current leasing proce- dures have succeeded in developing offshore oil and gas resources. The States have complained, how- ever, of a lack of coordination in the past. There is an attempt at coordination among the various Fed- eral agencies having jurisdiction or responsibility for activities on the land and in the water of the Outer Continental Shelf. Development of marine re- sources affects navigation, commercial and sport fishing, research, recreation, esthetics, national de- fense, shipping, and the overall health of the marine environment. The Army Corps of Engineers issues permits for structures in navigable waters of the Outer Conti- nental Shelf. The Coast Guard has responsibility for safety at sea and on artificial islands or marine struc- tures. The National Oceanic and Atmospheric Ad- ministration is concerned with fish, other marine life, and scientific investigation of the marine environ- ment and the coastal zone. Other agencies have vari- ous responsibilities for activities on the shelf and the waters and air above. IV-80 Extent and Distribution of the Resources Three major classes of mineral resources are found on the continental margin: dissolved minerals in seawater, minerals in unconsolidated deposits that occur in a variety of locations from coastal beaches to the deep seabed, and minerals in consolidated deposits in bedrock. Commodities in seawater are basically freshwater and minerals dissolved as salts, or in elemental form. Freshwater is also commonly found as submarine springs and constitutes a potential future source. The value of freshwater obtained from seawater in 1970 was estimated at $9.2 million. 188 Unconsolidated deposits are defined as naturally occurring concentrations of minerals that are not hardened and are amenable to recovery by dredging. On the continental shelf (to water depths of 200 meters), unconsolidated deposits of major interest are nonmetallics, including sand and gravel, glass sands, lime shells and calcareous algae phosphorite, and aragonite; heavy minerals including alluvial tin, iron sands, and titanium sands; and native elements including gold, platinum and diamonds. On the con- tinental slope (to depths of 2,000 meters) unconsol- idated deposits of major interest include phosphorite, carbonaceous muds, and metalliferous muds. Extraction of construction materials from offshore sources in 1973 constituted a $102.1 million indus- try, estimated to grow to $181 million in 1985; sand and gravel mining amounted to $65.6 million in 1973, and shell recovery and processing for use as an aggregate added another $36.5 million. 189 Consolidated bedrock deposits of interest occur as surficial deposits of coral, barite, and phosphorite crusts and deeply buried deposits of coal, iron ore, sulfur, potash, and various metallic salts. 190 Table 4-12 provides a classification of dissolved, unconsolidated, and consolidated resources that are known to be in the ocean. Detailed knowledge of marine deposits is very small. Only a small percent- age of the continental margins and deep ocean basins has been surveyed for hard minerals. Before the full potential of these minerals can be realized, the tech- nological and engineering capabilities to locate and assess them must be improved and applied. Based upon present geological understanding of the nature of the continental margins and deep seabeds, how- ever, substantial deposits may be discovered. Potential for Mining on the Continental Shelf The potential for discovery and exploitation of marine hard minerals on the continental margin is high and the variety of deposit types is of the same order as that on land. Some marine mining opera- tions on the continental margin are already eco- nomically viable, as indicated above, others are likely to be so within the next decade, both in deeper water and farther from land. Minerals on the United States continental shelves that possess the potential for early economic devel- opment are the surficial deposits of sand, gravel, and calcium carbonate, placer deposits of titanium and gold, and marine phosphorite deposits. Based on geological and geophysical surveys performed by government and academic organizations in the past few years and the limited amount of industry infor- mation available, the National Academy of Sciences' Marine Board Panel on Operational Safety in Marine Mining concluded in 1975 that the following sites may have commercial mining potential within two decades: 191 1. Gulf of Maine — potential for lode deposits, chiefly sulfides in shallow waters, and some potential for sand and heavy minerals. 2. Massachusetts Coast — parts of Cape Cod Bay and Buzzards Bay have good potential for sand, rare earth heavy minerals, and possibly coal. 3. New Jersey-New York Bight — known sand de- posits. 4. Southeast Atlantic Coast — known beach re- source of heavy mineral sands, but the sand potential of the seaward Outer Continental Shelf lands is incompletely known. 5. Gulf of Mexico — potential for hard minerals on the Outer Continental Shelf appears to be limited as a whole, although the U.S. Geolog- icial Survey has identified abundant black sands (including titanium-bearing minerals) off the Texas coast. Oyster shells may prove to be a resource on the Outer Continental Shelf in the 188 U.S. Senate Committee on Commerce. The Economic Value of Ocean Resources to the United States. Robert R. Nathan Associates, Inc., Washington, D.C., Government Printing Office, 1974 p. 30. is9 Ibid. p. 42. iso M. J. Cruickshank. "Mineral Resources Potential of Con- tinental Margins," in The Geology of Continental Margins, edited by C. A. Burke and C. L. Drake. New York: Springer Verlag, 1974, pp. 965-1000. i9i National Research Council, Panel on Operational Safety in Marine Mining, Marine Board, Assembly of Engineering. Mining in the Outer Continental Shelf and in the Deep Ocean. Washington, D.C., 1975, pp. 19-20. IV-81 c © '■G a u £ m 03 O D O C/5 © 0.^9 u I u O Q ° ea O in C 8 c u a, ° 6 ■a o u OJ JO 2 E c o ■So c u .5 ti 5U ft, s e §2 IS a q £ 3 5 P •a in in a 3 03 * u U S ~ ~ o - •n > o 3 £ s OS JO o n ? u id 1 t OZO Red Calc ^ Ph T3 -g O w T5 W5 TO C U h H C « c« 1/CJ. rite nga min rou u- .£?•§, i o = a O qj u > NUJ GO J= 3 | § o o; U 03 C 2 g 2 Ctf . 4> "3 ^ai«3 E a g -a * E .9 ts > x: ~ S!«C03*S0 1 i;3«H-S3• rl z E 3 o O >• > & OJ WZ ■n tH JS a a c Q o E -i ^ oj o -o "W 4J e (i, « Hi ■a B bo oj E < 4) oi !1J o B '0 in (n St 3 kj =5 c-1 6* n> •S 2 § 60 Bq 1 6 3 c •n c^ c a ol •o o IV-82 future. There is a possibility of finding eco- nomically attractive deposits of finely divided metal sulfides that were formed in place on the continental slope. 6. Southwest Pacific Coast — know deposits of sand, gravel, and phosphorite. 7. Northwest Pacific Coast — Outer Continental Shelf off northern California and Oregon is known to have modest placer deposits of gold and other heavy metals. 8. Great Lakes — although not Outer Continental Shelf lands, the portion of the lake beds within the United States are known to have manganese and copper ore deposits. 9. Bering Sea — Outer Continental Shelf has the most promising potential for mining and hard minerals of all U.S. Outer Continental Shelf waters. Placer deposits of this potential include: gold, platinum, cassiterite (tin), scheelite (tung- sten), rare earths, ilmenite (titanium), and others. Lode deposits are likely to include barite and copper, lead and zinc (as sulfides), and molybdenum, while deposits of chemical precipitates of uranium-bearing minerals are probable in some anoxic sites. Government, in- dustry, and academic groups have been making hard mineral surveys for more than 10 years. 10. Arctic Shelf — largely of unknown potential, but drainage from metal-bearing provenance rocks probably washes some noble metals into Outer Continental Shelf high-energy sand sites. 11. Insular States and Territories — although few mineral surveys have been made in the Outer Continental Shelf or its equivalent waters off American Samoa, Puerto Rico, Hawaii, or the Trust Territories, the potential for volcanic and basalt-related minerals and manganese crusts appears likely. Environmental Impact and Conflict With Other Uses Potential pollution from marine mining operations depends on both the mining methods and the specific environmental conditions of the operation. Generali- zations based on either a commodity or a location by itself could be misleading. Apart from some broad guidelines, assessments of potential pollution from marine mining must be operation- and site-specific. Potential environmental effects from production activities at sea are of three general types: alteration of the shape of the sea floor, interference with other uses of the area, and disturbance of marine eco- systems. The present use of trailing suction hopper dredges for sand and gravel mining, for example, causes a general lowering of the seabed over the area of the deposit to a maximum of about 5 meters. Stationary dredges as now used, mostly for sand, leave a hole in the seabed up to 20 meters deep and 80 meters in diameter. In both instances, there is a release of fine-grained solid materials into the water near the dredge, either from perturbation of the seabed by the dredgehead or from overflow of the hopper. The release of toxic substances into the water is not a general feature of sand and gravel dredging. Dredging may change the shape of the seabed sufficiently to alter local wave and current patterns. This could lead to local changes in coastal erosion or deposition and could cause destruction of beaches, siltation of harbors, removal of offshore banks, or disruption of longshore sand transport systems within the immediate area. Such impacts as a result of mining on the Outer Continental Shelf are unlikely. Experience in Europe and elsewhere has shown that mining operations can be hazardous to other marine activities or emplacements, causing collisions in shipping channels, disturbance of navigational buoys or anchorages, and cutting or displacing buried cables or pipelines. Fishing activities have been disturbed by the creation of obstructions to bottom trawls, particularly where deep pits have been excavated in fishing grounds or large boulders have been exposed by removal of the surrounding substrate. In some areas, illegal dredging has al- legedly destroyed maricultural nursery grounds. The potential impact of marine mining on eco- systems is the least known area of environmental problems, and without doubt, the most difficult one to assess. For the most part, effects are secondary and due to some alteration in the existing physical, chemical, or trophic equilibrium. Impacts on the coastal zone tend to be more significant than those on the Outer Continental Shelf because of the higher physical and biological energy levels generally recorded there and the proximity to population cen- ters. Physical changes that may induce biological effects include variations in temperature, current patterns, amounts of suspended particulates present, nature of the sea floor and substrate, light penentra- tion and photosynthesis, and the introduction of new habitats. Significant chemical changes may be caused by the presence of nutrients, trace elements, or toxics. Possible changes in the food chain include removal of, or influence on, existing species by in- volving them in the dredging operation. In general, alterations in temperature and chemistry are unlikely and would occur only as a result of induced changes in current patterns near shore, where there were very significant gradients of local temperature and chemicals. Analyses of the potential impacts require a knowl- edge of the undisturbed populations and their nat- ural cycles to that changes can be predicted, verified, IV-83 and controlled. At the present time, there is little agreement within the scientific community about what constitutes adequate knowledge of pre-operating conditions or baselines. Difficulties arise in the selec- tion of indicator species that will adequately repre- sent the biotic community and its reaction to the disurbances. The idea of measuring baselines is so new that the effect of long-term regional cycles, for which there are no data, cannot be determined. The effect of local impacts on regional or global com- munities may be underestimated. From the foregoing considerations, it can be gen- erally concluded that potential disturbances from marine mining operations depend on both the mining method and the environmental conditions of the area. Most physical and chemical changes can be measured, but assessing the effects of biological per- turbations requires intensive and long-term study. 192 State Approaches in Dealing With Offshore Mining In the 3-mile territorial sea of the United States, the coastal States have been vested with ownership of mineral resources under the Submerged Lands Act of 1953. Accordingly, in this area, the offshore leas- ing statutes of such States govern. Most States have moratoriums or severe restrictions on mining in the coastal zone. There is every indication that the mining of se- lected deposits on the Outer Continental Shelf, under the jurisdiction of the Federal Government, will occur in the future and will require extensive envi- ronmental monitoring and control and coordination with the coastal States. 19 2 M. J. Cruickshank and H. D. Hess. "Marine Sand and Gravel Mining," Oceaims, Journal of the Woods Hole Oceano- graphic Institution 19:1, Fall 1975, 32-44. 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S " bJeCts re,a,ed to the of some other %£ tf '^ %Eff?°Z? th « « tabI »"n.ent merits which are eeneralk ™T i lnterc °nference Agree- ing naturally SmSSidSS^H ^u™ Conferen «s serv- Signed to achievT ra ^' r ,t b ' r p adeS Wh ,* Ch are ,y P ica,| y d ^ of this last type are reau^rj , " conferences - Agreements action for ££££££%£ £?£* e nght ^-dependent to the agreement C ° merences u P° n notification of other parties cZttJ^fyg"* S -ion ,5, 39 Stat. 7 2 «, t7o A tr f I th : u Eme <^y ^eet Corpora- hre.t nf mC , ^ Shippin S Act was P^sed, the threat of war and the need to expand U.S. shipping capacity rapidly to meet wartime requirements o cused most of the attention on the emergency pro- visions of this legislation rather than its'regulaCy provisions. In the aftermath of World War I how- ever the emergency provisions of the Shipping Act passed into history, while the regulatory provisions re a g:ia r tion med °"*" 1 * C0 ^^ U.s' shipping of ?h V e er F p h ri Pe , r r d 1916 ~ 61 the re § ulator y «*vita trade of t G ° Vernment With res P ect to f °reign trade ocean shipping were consistently vested in the same organization that carried out Federal promo- rinirf 8 ?- rdadng f ° the U " S - mercha "t ma- oroble™ I arran S ement suited in numerous problems over the years, it was a central feature of he United States Shipping Board (an independent agency from 1917 to 1933 and a component of the Department of Commerce from 1933 to 1936) the United States Maritime Commission (an independent time^Ro'TJ 936 t0 1950) ' and the Federa ' Mari- ne Board/Maritime Administration (both Depart- ?i ?* Commerce units from 1950 to 1961). Not until 1961 were the Federal promotional and regu- laory responsibilities in this area finally separated with the establishment of an independent five-man Federal Maritime Commission to carry out the regu- atory duties and with the assignment of all promo- tional and subsidy functions to the Maritime Admin- istration in the Department of Commerce. This is the present organizational arrangement of these func- tions, and today the foreign trade regulatory provi- ions of the Shipping Act of 1916 (together with other regulatory responsibilities) are carried out by the In an effort to regulate the liner shipping industry effectively and yet allow a limited form of the con- ference system to persist, the Congress specified in Section 14 of the Shipping Act four types of com- petitive behavior which would be illegal for all com- mon carriers (and/or conferences) engaged in U S commerce. These specific prohibitions, which are still in force, and which apply to both foreign and US.-flag carriers, will be briefly discussed in the following paragraphs. a Th A first P ractice t0 be specifically prohibited was the deferred rebate. Before 1916 such rebates were used to maintain shipper patronage and are still used tor that purpose today in many non-U.S. trades bssent.ally, ship operators offering such rebates agree to return a portion of the total freight paid for services ,n an earlier period to any shipper who agrees to ship all or some specified portion of his cargoes for some future period on vessels owned by the operator offering the rebate or, in the case of conferences, on vessels of conference members This V-20 device has been commonly used by conferences to keep existing customers from shifting to carriage by a nonconference line. Since the only way a shipper can collect his rebate is to agree to another period of exclusive patronage, the shipper faces a strong economic incentive to remain loyal to the conference and potential conference competitors face a major barrier in trying to attract customers away from the conference. As indicated, this practice was made illegal by the Shipping Act in all U.S. trades and this prohibition, like the other practices which are forbidden, extends to foreign-flag common car- riers in U.S. foreign trade as well as to U.S. carriers. The second practice forbidden by Section 14 was the use of so-called "fighting ships." Essentially, this device involves the selection of one or more vessels from among those owned by a particular company, or by members of a conference, to be operated at extremely low rates in head-to-head competition with a competitor on a particular route in order to drive the competitor from the trade. Losses on a conference-sponsored fighting ship operation are shared by all conference members, and, hence, the full economic resources of the conference can be brought to bear in the course of the competition. Since 1916, this practice, too, has been illegal in all U.S. trades. The third practice outlawed by the Shipping Act was the practice of discriminating against shippers as punishment for nonpatronage. Essentially, Section 14 made it illegal for any common carrier in U.S. ocean commerce to retaliate against a shipper by refusing to carry his cargo when space is available or to otherwise discriminate against a shipper as a consequence of the shipper's patronage of another carrier. Finally, Section 14 included a more general pro- hibition against any unjust or unfair discrimination among shippers. This provision, and others similar to it elsewhere in the Act, basically requires that all common carriers by water in U.S. commerce offer their services on equal commercial terms to all equally situated shippers. In 1958, a judicial interpretation of this last pro- vision held that the language contained in Section 14 with respect to discrimination also prohibited the common practice of offering dual rates. 84 Under this arrangement, a lower rate schedule is offered to shippers who sign contracts agreeing to exclusively patronize conference carriers while a higher schedule is offered to shippers who do not agree to exclusive patronage. Although the 1958 judicial interpretation outlawed the dual rate practice, this policy was quickly re- versed when in August 1958 the Congress amended the Shipping Act to specifically authorize dual rate systems if approved in advance by the Federal Gov- ernment. In 1961, specific terms and conditions re- quired for dual rate contract approval were added to the Shipping Act. Basically, the 1961 amendment authorizes approval of dual rates so long as they are not detrimental to U.S. commerce, contrary to the public interest, or ". . . unjustly discriminatory or unfair as between shippers, exporters, importers, or ports, or between exporters from the United States and their foreign competitors . . ." 3G The 1961 dual rate provision also set the maxi- mum rate discount for exclusive patronage at 15 percent. Although a statutory maximum, this 15 per- cent differential in dual rate contracts has become the norm. In processing dual rate contract applica- tions since 1961, FMC has denied approval to dual rate systems which extend shipper patronage re- quirements beyond a single trade and to systems providing for more than two rate levels. 36 While the Shipping Act required prior Federal approval of all conference agreements and related competition-limiting arrangements and while it did require conferences to file rate schedules and ex- pressly prohibited certain competitive practices, as originally drawn the 1916 Act did not require inde- pendent common carriers to file rate schedules with the Federal Government. It was not until 1961, when Section 18b was added to the Act, that such filings were made mandatory for independent car- riers as well as conferences. While the addition of Section 18b (and at the same time, the addition of Section 14b, which re- quired dual rate contract filings), substantially ex- panded Federal regulatory authority with respect to foreign trade ocean carriers, this authority remains limited compared to the Federal ratemaking author- ity exercised over domestic carriers. The Federal Maritime Commission today may disapprove a for- eign trade rate ". . . which, after hearing, it finds to be so unreasonably high or low as to be detri- mental to the commerce of the United States." 37 However, under such circumstances, the FMC may not suspend the rate pending a determination of its reasonableness. Under this section, FMC may dis- approve a challenged rate only after the required hearing has been held. In cases where a rate is chal- lenged on the basis of discrimination under Section 17, the Commission authority is broader and a new rate may be prescribed (after hearing) to correct such an inequity. 34 Federal Maritime Board vs. Isbrandtsen Company, 356 U.S.C. 481 (1958). ss Shipping Act, 1916 (as amended), Section 14b, 39 Stat. 728, Chapter 451, September 7, 1916. Another result of the 1961 amendments was to mandate that conference tariffs be made available to shippers at a subscription fee. Previously the non- availability of some conference tariffs was hindering the shipping public. 38 U.S. Department of Justice, Antitrust Division. The Regu- lated Ocean Shipping Industry. Washington, D.C., Government Printing Office, January 1977, p. 148. 37 Shipping Act of 1916, Section 18b(5). V-21 This rate regulation authority is substantially less extensive than that exercised by the Federal Govern- ment with respect to domestic water carriage. As noted in a recently published Justice Department study, the Shipping Act of 1916 and the Intercoastal Shipping Act of 1933 provide the Federal Govern- ment with extensive ratemaking authority with re- spect to domestic waterborne common carriage. 38 It is to this domestic waterborne transportation regu- lation that attention will now be directed. Regulation of Domestic Trade Shipping Under the terms of the Shipping Act of 1916, the regulatory authority granted to the United States Shipping Board extended to ocean and Great Lakes common carriers in interstate domestic commerce as well as to common carriers in the U.S. foreign trades. But while the major trade practice prohibitions and requirements imposed on foreign trade common car- riers applied equally to domestic common carriers, the domestic carriage rate regulation authority of the Board was, from the beginning, far greater than its foreign trade rate regulation authority. For exam- ple, while it was not until 1961 that foreign trade tariffs of independent carriers were required to be filed with the Federal Government, tariffs for domes- tic ocean and Great Lakes common carriage were required under Section 18 of the Shipping Act as originally enacted. It is important to note, however, that this early authority to regulate domestic rates, while clearly greater than the authority to regulate foreign trade rates, was limited in two important respects. First, the 1916 Act required only that maximum rates be filed with the Shipping Board and left carriers free to charge rates below the maximum so long as some other provision of the Act was not violated in the process. The Board was, however, granted authority to prescribe a new maximum rate upon finding a particular rate unjust or unreasonable, and unjust or unreasonable trade practices could also be set aside. Nonetheless, the original domestic trade ratemaking authority available under this rate ceiling approach was significantly more constrained than the author- ity exercised today by the Federal Government in this area. The other major limitation on the original author- ity of the Shipping Board with respect to domestic water carriage regulation derives from the definition contained in the Act of domestic carriers subject to its provisions. Because only ocean and Great Lakes interstate common carriers were included in the domestic water carrier definition, the entire inland waterway system was excluded from the regulatory authority of the Government (except, of course, for the rail-related regulatory authority exercised by ICC). Furthermore, all contract and private carriers in the domestic ocean trades were beyond Federal jurisdiction under this definition. The first important expansion of Federal domestic :f * U.S. Department of Justice, op. cit. note 36, p. 36. trade regulatory authority came in 1933. Following World War I, intense competition developed in the carriage of intercoastal domestic commerce via the Panama Canal and demands for expanded Federal regulation to control this situation began to emerge. In 1933, the Congress responded with enactment of the Intercoastal Shipping Act, which required both common and contract carriers to file tariffs with the Shipping Board for all domestic intercoastal carriage provided via Panama. Such tariffs were required to specify the exact rate to be charged rather than a minimum, maximum, or range of rates, and the Shipping Board was given broad authority to suspend unjust or unreasonable rates and practices. Hence, in this one trade area, Federal regulatory authority was simultaneously extended to include contract carriers and substantially expanded with respect to ratemak- ing and rate regulation. In 1938 the relevance of the Intercoastal Shipping Act, with respect to the regulation of domestic ship- ping, was greatly enlarged by an amendment which extended the provisions of the 1933 law to all domestic trade common carriers as defined in the Shipping Act of 1916. 39 With this amendment, the Intercoastal Shipping Act of 1933 became the pri- mary statutory authority for Federal regulation of domestic water transportation rates. In compliance with this legislation, domestic ocean and Great Lakes common carriers were required to file new tariffs with the U.S. Maritime Commission (which by this time had assumed the responsibilities of the Shipping Board) reflecting actual, rather than maximum, rates for domestic service. In addition, all such carriers became subject to expanded Federal ratemaking authority because it was no longer a rate ceiling which had to be fair and just, but a specific rate. Under this expanded authority, rates could be sus- pended by the Maritime Commission if found to be either too high or too low, and the Commission was authorized under such circumstances to prescribe appropriate rates for the services in question. Thus, together, the Shipping Act of 1916 and the Inter- coastal Shipping Act of 1933 became the two prin- a 9 Interestingly, the 1938 amendment did not include extension of the rate provisions. of the Intercoastal Shipping Act to other domestic contract carriers. Thus, while common carriers in all domestic interstate ocean and Great Lakes trades became subject to the Intercoastal Shipping Act, the only domestic contract carriers subject to this legislation were those operated in inter- coastal services via the Panama Canal as originally specified when the Act was first passed. V-22 cipal statutes upon which Federal domestic water carrier regulatory authority rested at the end of the 1930s. Although Federal authority over domestic water carriage had been expanded substantially with enact- ment of the 1938 amendment to the Intercoastal Shipping Act, inland water carriers remained largely beyond Federal regulation. The ICC, of course, did exercise some limited jurisdiction over those trans- portation services offered jointly by rail and water carriers and water carriage provided by railroad sub- sidiaries, but this authority was directed primarily at controlling the competitive practices of the rail- roads and excluded water transportation unaffiliated with rail carriage. The ICC role in regulating rail- related water carriage also meant that Federal authority in this area was divided between two agencies. By 1940, pressures emerged for the con- solidation of this domestic regulatory authority and for the extension of general Federal regulation to the inland waterway system. In 1940, legislation was passed which accom- plished the desired consolidation of regulatory authority and extended Federal regulation to the inland system. With enactment of the Transportation Act of 1940, which added a new Part III to the Interstate Commerce Act, the bulk of Federal regu- latory authority over domestic water transportation (including the inland system) was vested in the Interstate Commerce Commission, leaving to the U.S. Maritime Commission (and its successors) pri- mary responsibility for the regulation of foreign trade carriage. The single exception to this foreign/ domestic division of responsibility was in the offshore domestic trades between the continental United States and Hawaii, Alaska, and U.S. territories. In these noncontiguous domestic trades, the Maritime Commission retained primary responsibility for water carrier regulation. All territorial trades were exempted from inclusion under ICC authority by the 1940 Act itself, and, when Hawaii and Alaska became States, the authority of the Maritime Com- mission over these trades was preserved by the state- hood legislation. Regulation of these noncontiguous domestic trades continues to be governed primarily by the terms of the Intercoastal Shipping Act of 1933, as amended, subject to the trade practice pro- hibitions of the Shipping Act of 1916. In addition to bringing the inland waterway sys- tem under Federal regulatory authority, the Trans- portation Act of 1940 also extended domestic water regulation to certain contract carriers, although regu- latory authority in this area has remained limited and is primarily designed to protect common carriers (of all modes) from unfair competition. Basically, regulated contract carriers are required to file with the ICC only the lowest rates actually charged for their services and are free to charge higher rates as they wish. The ICC may raise floor rates found to be so unreasonably low as to result in unfair compe- tition, but has no power to lower rates. Although many of the provisions of the Shipping Act and the Intercoastal Shipping Act were repealed by the Transportation Act of 1940 with respect to the water carriage made subject to ICC jurisdiction, similar trade practice prohibitions and standards were incorporated in the new legislative authority. Tariff filings were required, and rates could be over- turned by ICC if found to be unreasonably high or unreasonably low. Unjustly discriminatory rates and practices were outlawed, and agreements among common carriers relating to rates were allowed and given antitrust immunity if approved in advance and if individual participants retained the right of indi- vidual action. Thus, in general, the basic regulatory authority previously exercised by the U.S. Maritime Commission over part of the domestic water trans- portation system was simply transferred to ICC and expanded to include the inland waterway system and contract carriers. The specific ICC authority over domestic water transportation is, however, replete with exceptions and exemptions and, as a conse- quence, is highly complex. After delineating most of the major exceptions and exemptions, one author has identified three major elements of the domestic water transportation system which remain generally within the jurisdiction of ICC: ". . . common carriage of nonbulk freight; common carriage of dry bulk cargo on the high seas and Great Lakes; and intercoastal contract carriage of dry bulk cargo, when substan- tially competitive with common carriage (by water, rail, or highway)." 40 In addition to the domestic carriage line haul operations subject to ICC authority, numerous other water transportation-related services also fall within ICC jurisdiction under various provisions of Part III of the Interstate Commerce Act. Authority in this area extends to such services as delivery, elevation, transfer in transit, refrigeration, storage, and similar transportation-related services offered to the public. It is also important to note that ICC authority under the 1940 Act includes the regulation of the domestic portion of foreign trade water transporta- tion services before or after trans-shipment in the carriage to or; from a foreign location. With the growth of intermodalism in recent years, and the in- creasing use of through transportation rates, juris- dictional problems between ICC and FMC have become more and more common in this area. Since foreign trade-through rates may include in a single rate charges for both foreign trade and domestic trade services, it is often not clear which authority should govern such rates. Hence, while a major motivation for enacting the Transportation Act of 40 William L. Grossman, op. cit. note 29, p. 106. V-23 1940 was to eliminate jurisdictional overlaps in Fed- eral regulatory authority, the growing use of through rates to cover a combination of foreign and domestic transport services is blurring the regulatory boundary established by the 1940 Act between foreign and domestic commerce. Jurisdictional disputes in this area are likely to continue until authority in this area is more precisely allocated either through judi- cial interpretation of existing law or enactment of new legislation. Other Regulatory Responsibilities of ICC and FMC Beyond the activities carried out by the Interstate Commerce Commission and the Federal Maritime Commission relating to the economic regulation of water carriers, various additional regulatory duties are discharged with respect to other aspects and components of the water transportation system. As indicated in the previous section, Part III of the Interstate Commerce Act grants authority to ICC to regulate many services provided in conjunction with water transportation in addition to the line haul itself. In this same area, under the terms of the Shipping Act of 1916, the FMC exercises extensive authority in the regulation of marine terminal opera- tions carried out in conjunction with waterborne common carriage in foreign commerce and in con- junction with domestic interstate ocean and Great Lakes commerce. In this capacity FMC promulgates rules and regulations governing the activities of terminal operators and conducts surveillance, investi- gates charges, and renders decisions relating to dis- criminatory rates, practices, and other illegal activ- ities. All U.S. terminal operators serving common carriers by water must publish and file tariffs with FMC specifying rates, charges, rules, and regula- tions governing their services. Furthermore, agree- ments between and among terminal operators and common carriers which affect or limit competition must be filed with and approved by FMC before receiving antitrust immunity under Section 15 of the Shipping Act. Interestingly, it is ICC rather than FMC which has responsibility to help assure that offshore oil ports and related storage facilities are operated as common carriers. Under Section 8 of the Deep- water Port Act of 1974, authorized offshore oil facilities must be operated on a common carrier basis subject to ICC regulation in order to be eligible for a Department of Transportation license. If there is reason to believe that a licensed facility is not be- ing operated in compliance with this requirement, an appropriate investigation and proceeding before ICC may be initiated. Freight forwarders in domestic commerce (except in the noncontiguous domestic trades) are also regu- lated by ICC under the terms of Part IV of the Interstate Commerce Act, which was added to the basic legislation in 1942. Under the provisions of Part IV such forwarders are generally required to ". . . charge reasonable rates, refrain from unjust discrimination, file their rates in tariffs, etc." 41 Al- though regulated domestic forwarders may employ water carriers in the provision of line haul trans- portation services, it is much more common for domestic forwarders to use rail or truck services. In the domestic trades, freight forwarders assume the responsibilities of a common carrier and are regu- lated as common carriers. In foreign commerce and in the noncontiguous domestic trades, FMC exercises Federal regulatory authority over so-called Non- Vessel Operating Com- mon Carriers (NVOCC), which are business entities analogous to the domestic freight forwarders regu- lated by ICC. Basically, an NVOCC can be de- scribed as a person or firm which holds itself out (by the establishment and maintenance of tariffs, by advertisement solicitation, or otherwise) to pro- vide transportation for hire by water in commerce subject to the jurisdiction of FMC; which assumes responsibility or has liability imposed by law for the safe transportation of shipments; and which arranges in its own name with underlying water carriers for the performance of such transportation whether or not owning or controlling the means by which such transportation is effected. Although an NVOCC is essentially the same kind of entity as the domestic freight forwarder regulated under Part IV of the Interstate Commerce Act, FMC does not place special restrictions on NVOCC operations, as is the case with ICC regulation of domestic freight for- warders. A non-vessel operating common carrier is afforded the same status as a vessel operating com- mon carrier in terms of FMC regulation. In addition to its regulatory authority over NVOCCs, FMC also licenses and regulates inde- pendent ocean freight forwarders, which, unlike the domestic forwarders regulated by ICC, assume no common carrier responsibilities and therefore file no tariffs or transportation rates. Independent ocean freight forwarders serve merely as export agents for other persons. FMC authority in this area was pro- vided under the terms of a 1961 amendment to the Shipping Act, which authorizes the Commission to license forwarders subject to its jurisdiction and to regulate their activities to assure compliance with Federal shipping statutes. Ocean freight forwarders are required to be licensed by FMC after a finding "William L. Grossman, op. cit. note 29, p. 114. V-24 that they are "fit, willing, and able" to carry on the business of forwarding. The statute further provides that no person may be licensed who is controlled directly or indirectly by an exporter from the United States, or who has a beneficial interest in export cargoes. Freight forwarders are also subject to the general regulatory provisions of the Shipping Act of 1916, as "other persons" subject to the Act. In addition to responsibilities relating to the regu- lation of competition and trade practices, FMC is also responsible for assuring the financial capability of certain carriers to meet various legally-specified liability requirements. Basically these responsibilities relate to passenger vessels serving U.S. ports and, with respect to pollution liability, to almost all ves- sels over 300 gross tons using U.S. waters. Under the terms of Public Law 89-777, owners, operators and charterers of passenger vessels with accommodations for 50 or more persons must establish and maintain with FMC evidence of their financial responsibility to meet liability obligations to passengers or others for death, injury, or nonperformance on voyages to or from the United States. Certificates (required for operation in the U.S. commerce) are issued to car- riers that apply to the Commission and are found financially responsible to meet these liability obliga- tions. Financial responsibility obligations are also im- posed on the owners and operators of all U.S. and foreign vessels of over 300 gross tons (except public vessels and certain non-self-propelled barges) under the provisions of Section 311(p)(l) of the Federal Water Pollution Control Act. Financial responsibility in this area is designed to assure adequate resources to meet liability obligations associated with a spill or other illegal polluting discharge. Carrier obliga- tions under this law are also assured by an FMC certification program. Although this program has been in effect since April 3, 1971, with respect to oil spills, it has not yet been expanded to cover spills of other hazardous substances. Before implementa- tion of the expanded program, the Environmental Protection Agency must specifically identify the sub- stances to be included and establish various pollution standards for these materials. The development of EPA standards in this area is reportedly now nearing completion. Special liability requirements are imposed on ves- sels carrying Alaska North Slope oil under the terms of the Trans-Alaska Pipeline Authorization Act of 1973 and assuring financial responsibility up to these limits is also within FMC authority. In implementing this program, FMC has required carriers engaged in the Alaska trade to maintain evidence of financial responsibility to meet the liability requirements of both the Federal Water Pollution Control Act and the Trans-Alaska Pipeline Authorization Act. It is interesting to note that a similar requirement relating to vessel financial responsibility for oil pollu- tion liability in conjunction with deepwater offshore ports was vested with the Department of Transporta- tion under the terms of the Deepwater Port Act of 1974. Once one or more deepwater ports become operational, this provision will fragment Federal responsibility in this area unless new overriding legislation is enacted to deal comprehensively with the oil spill liability issue. Comprehensive legislation on oil spill liability is now being considered by the Congress, but it is not yet clear where overall respon- sibility for assuring financial responsibility will be vested. Major Current Issues Jurisdictional problems relating to the authority of ICC and FMC are likely to continue as prominent regulatory issues as containerization and other unitized cargo handling operations continue to ex- pand. The increasing use of through bills of lading and single rates for movements having both inter- national and domestic components will continue to tax the traditional domestic trade/foreign trade divi- sion of responsibility between these agencies. Both agencies generally support the concept of intermodal development, and both are represented, along with the Civil Aeronautics Board, on the nonstatutory Interagency Committee on Intermodal Cargo (IOC). But despite this support for the concept of intermodalism, fragmented regulatory authority re- mains an impediment. Although the IOC has suc- ceeded in improving some of the commercial aspects of intermodal carriage, progress in resolving juris- dictional disputes among the three parent agencies has been limited. In the past the FMC and various marine confer- ence carriers have supported legislation which would allow FMC to grant antitrust immunity under the Shipping Act to certain intermodal arrangements in order to facilitate intermodal development. Under such legislation, arrangements receiving immunity would be subject to FMC approval and regulatory authority. Both the Justice Department and ICC have opposed such legislation. Justice, which has been a frequent critic of the U.S. policy of granting antitrust immunity to shipping conferences, does not want to see this policy extended, and ICC feels that intermodal development has not been unduly re- tarded under existing law and, therefore, sees no need for new legislative authority. Another regulatory issue of growing importance is V-25 also closely tied to intermodal development. As indi- cated in the previous section, containerization and other unitized cargo handling techniques have placed strong pressures on the traditional Federal port pol- icy of non-discrimination. These pressures have found clearest expression in the regulatory process where Federal decisions with respect to intermodal operations can significantly affect port prospects. A number of intermodal operations are now being chal- lenged before both FMC and ICC by ports that are losing traditional cargoes to these new services. Rate absorption is a fundamental issue in many of these port-related cases. In the past FMC has gener- ally allowed ocean carriers to offer a through-single- rate service and absorb the cost of overland transpor- tation from the port of call to another port region only in cases where adequate service was not available at the second port or in certain other very limited situations, such as emergencies. However, FMC policy in this area is still evolving as the Commission attempts to balance the advantages of expanded intermodalism against the potential damage to specific ports and to the traditional concept of non-discrimination. Ports damaged by new intermodal services can be expected to continue to argue to the FMC that they are being discriminated against unfairly by the diversion of naturally tributary cargoes to other ports. The port position is also being pursued before ICC, which has authority to disallow domestic rates that are noncompensatory. Because a through rate has a domestic portion that is subject to ICC jurisdiction, damaged ports have sought ICC disallowance of through rates on the grounds that the domestic por- tion is illegally low. It seems likely that balancing port considerations against the benefits of expanded inter- modal carriage will be complicated by the involve- ment of two Federal regulatory authorities. This is another manifestation of the growing jurisdictional problem which has accompanied the growth of inter- modal transportation. In addition to the issues associated with regulatory jurisdiction and intermodalism, even more funda- mental concerns are likely to emerge in the next few years regarding the overall appropriateness and ade- quacy of the present U.S. ocean shipping regulatory system. As indicated, the Justice Department has frequently criticized the granting of antitrust immu- nity to regulated shipping conferences and has re- cently released a major study that is highly critical of the present system. Basically the study concludes that conference abuses have not been effectively controlled by either market forces or Government regulation and that major changes should be made to current ship- ping legislation with the aim of increasing competition in the shipping industry. 42 The Justice Department allegation that the U.S. U.S. Department of Justice, op. cit. note 36, p. 237. regulatory system has not been effective in controlling illegal practices gained considerable credibility with the recent agreement by Sea-Land Services, Inc., to pay a $4 million fine to FMC for extensive rebating activities between 1971 and 1975. Although investiga- tions are still continuing, there are indications that such rebating has been widespread in the U.S. trades in recent years despite its prohibition. Supporters of the existing U.S. regulatory system, seeing major problems in any attempt to extend U.S. antitrust laws to foreign-flag carriers, have urged a basic strengthening of the present regulatory system to provide FMC with expanded authority to deal more effectively with illegal rebating practices — par- ticularly with respect to foreign-flag vessels. While FMC authority over U.S. carriers is clear, its powers to investigate foreign-flag operations have proven more difficult to exercise. By simply refusing to sup- ply subpoenaed records and information (frequently in compliance with laws at home) foreign-flag car- riers have often been able to thwart FMC rebating investigations without fear of U.S. Government re- prisal. This situation has prompted the Congress to consider amendments to U.S. shipping laws which would impose new penalties on foreign carriers who refuse to comply with FMC investigations. One sug- gested approach would prohibit such uncooperative foreign lines from entering U.S. ports. Further con- sideration of how best to deal with the rebating prob- lem in the months ahead is likely to raise a variety of issues relating to the fundamental nature of the pres- ent U.S. shipping regulatory system. Interest in reassessing Federal liner regulation has also been expressed by the Maritime Administration, which recently signed a major contract with the con- sulting firm Harbridge House for a 1-year study of the outlook for the U.S. liner fleet, assuming three alternative future regulatory environments. This study will first assess the economic outlook for the U.S. fleet if the current regulated "open" con- ference system is retained. Second, the impact of a more competitive environment, such as the one urged by the Justice Department, will be analyzed. And finally, an assessment of the U.S. liner outlook will be made assuming a less competitive environment in which "closed" conferences are authorized in U.S. commerce. The Chairman of the House Merchant Marine and Fisheries Committee has recently indi- cated that his committee will soon consider legislation to authorize some form of "closed" conference sys- tem. Hearings on such a measure are also likely to spawn a fundamental and thorough-going Congres- sional reassessment of U.S. shipping regulation. As has been the case in the past, U.S. fleet promotional considerations are likely to figure prominently in these deliberations and the findings of the Harbridge House study will, no doubt, be carefully considered during such Congressional hearings. V-26 One final major regulatory issue which will con- tinue to receive close consideration relates to the problem of controlling the competitive practices of state-owned shipping companies which, in recent years, have been aggressively seeking a larger role in the carriage of U.S. foreign commerce. Such carriers, pri- marily of Soviet registry, have been charged by their competitors with cutting rates to levels which are not fully compensatory in order to achieve rapid trade penetration gains which, it is suggested, are motivated more by political objectives than by commercial con- siderations. The Soviets have, in turn, countered that their rates are not lower if the extensive illegal rebat- ing activities of their competitors are taken into ac- count. As a result of these charges and counter- charges, the rebating and rate-cutting issues have recently become increasingly intertwined. In attempting to resolve the rate-cutting issue, former FMC Chairman Karl Bakke met with Soviet maritime officials in July 1976 and successfully nego- tiated an agreement concerning the terms of Soviet liner participation in the carriage of U.S. waterborne foreign commerce. Under the provisions of the so- called Leningrad Agreement, Soviet officials basically agreed to adjust rates as quickly as possible in all U.S. liner trades to at least the level of the lowest rate offered by other competing independent carriers and to begin negotiations for entry into the Atlantic and Pacific conference systems. In the wake of the Leningrad Agreement, various legislative initiatives, which had been undertaken to provide FMC with new authority to deal with Soviet rate-cutting practices, were suspended to see how well the new agreement would work. The suspension of these efforts, however, was temporary as Congres- sional impatience grew over the slow pace of progress under the Leningrad Agreement. In May 1977, Chair- man Bakke himself suggested that progress had been inadequate and urged the Congress to pursue a legis- lative solution to the rate-cutting problem. 43 Legislative proposals which have thus far been advanced to address the rate-cutting issue would amend the Shipping Act of 1916 to require nonnational, third-flag carriers (vessels not registered under either U.S. flag or the flag of the U.S. trading partner in a particular trade) to maintain rates with the FMC which are no lower than the lowest rates filed by any national flag carrier for the same services. FMC would be allowed to authorize lower rates only upon finding such rates to be commercially compensatory. Under the terms of one legislative proposal in this area, only State-owned nonnational carriers would be subjected to these new requirements, while an alternative pro- posal would extend this authority to all third-flag vessels engaged in the carriage of U.S. liner commerce. In the face of continued Soviet expansion in the carriage of U.S. commerce and with the continued offering of liner services at what appear to be non- compensatory rates, pressure for Congressional action in this area is likely to grow. As a consequence, the third-flag rate-cutting issue promises to continue as a major regulatory concern. Promotion of U.S. Shipping and Shipbuilding Federal promotion and protection of the U.S. merchant marine date from the beginning of our his- tory as a Nation. And while the scope and nature of this support have varied from period to period, the provision of Federal maritime assistance, in one form or another, has been a consistent U.S. policy. Over the years a number of justifications have been advanced in support of Federal programs designed to foster U.S. shipping and shipbuilding. These justifica- tions, which have assumed varying positions of rela- tive importance during different periods of our his- tory, may be classified under three general headings — national security, international political considera- tions, and economic benefits. National security considerations have consistently played a predominant role in shaping and justifying Federal involvement in the promotion and protection of the U.S. merchant marine. The importance of maintaining a domestic shipping and shipbuilding capacity has been repeatedly demonstrated during periods of war and other national emergencies, and the security requirement for a U.S. maritime capacity is today probably the most widely recognized and supported justification for Federal involvement in this area. The security requirement for a national merchant marine is generally defined to include two compo- nents. The defense component consists of the ship- ping and shipbuilding capacity needed to assure rapid deployment and resupply of U.S. armed forces in time of war, while the economic security component represents a broader requirement to assure the con- tinued viability of the economy under wartime or other national emergency conditions. The growing dependence of the United States on foreign raw mate- rials has greatly increased the importance of this second component of national security in recent years. Closely related to national security are certain inter- national political considerations which have also fre- quently been cited as motivations for Federal support for the U.S. merchant marine. Merchant ships, like 43 U.S. Department of Commerce, Maritime Administration, Office of Policy and Plans, Division of Special Studies. Expan- sion of the Soviet Merchant Marine into the U.S. Maritime Trades. Washington, D.C., Government Printing Office, August 1977, p. 43. V-27 naval vessels, may serve as visible expressions of national power and prestige abroad and such vessels and citizen crews play a representational role that can help implement U.S. foreign policy. At an even more general level, it has been suggested that national prestige, national pride, and our commitment to eco- nomic competition demand participation by the United States in these internationally competitive industries. In his message proposing legislation which was to become the Merchant Marine Act of 1936, President Roosevelt included the following statement of this political imperative: 44 "In such free competition, the American people want us to be properly represented . . . Their Government owes it to them to make certain that [American] ships are in keeping with our national pride and our national needs." Over the years, a variety of economic benefits have also been cited in support of Federal assistance for the U.S. merchant marine. First, U.S. shipping and shipbuilding offer human and material resource em- ployment opportunities which, in some circumstances, might otherwise be unavailable. Such justifications have been particularly important during periods of high national unemployment and in regions of the Nation which face chronic employment problems and in which the maritime industries provide many of the available job opportunities. The regional employment argument has been par- ticularly persuasive in recent years with respect to Federal support for shipbuilding. As of December 1977, for example, nine U.S. shipyards were engaged in the construction of merchant vessels with construc- tion-differential subsidy assistance. All nine of these shipyards are in areas classified by the Department of Labor as having substantial unemployment. The ship- building employment opportunity argument is further advanced by the relatively high proportion of minority workers in this industry. Such workers consistently face greater employment difficulties than their non- minority counterparts in the labor force and, in many areas, shipbuilding has become a major source of jobs and training for minority employees. The other economic justifications most frequently advanced in support of Government aid to the mari- time industries stem primarily from international trade considerations. It has been argued, for example, that a U.S. presence in the carriage of our foreign com- merce helps assure the maintenance of a competitive environment which, in turn, assures the continuation of fair and reasonable ocean freight rates and reliable ocean transportation services. In this way, it is sug- gested, U.S. shipping makes a direct contribution to the maintenance and expansion of U.S. foreign com- merce. National flag ocean transportation has also been encouraged as a means of opening new markets for our export products. This justification was of par- ticular importance in the early period of our history when merchant ships carrying goods around the world provided the principal means of exposing potential customers to new products and to new sources of supply. Finally, balance of payment savings have been cited as an important benefit of maintaining strong U.S. shipping and shipbuilding industries, especially during periods of high or chronic deficits in the balance of payments. To the extent that U.S. -built vessels and U.S. -owned and operated shipping services obviate part of the requirement for foreign vessels and services, balance of payments savings accrue to the Nation. It is important to note that today, like many of the other benefits associated with Federal support for the merchant marine, the balance of payments benefit is not generally cited as a major justification for Fed- eral support, but rather as one of the many ancillary benefits which derive from this policy. As suggested previously, it is probably national security that today provides the primary justification for Federal support for the U.S. maritime industries. Nonetheless, while the international political and economic benefits associated with U.S. shipping and shipbuilding might not individually warrant Federal support of these industries, the collective value of these benefits is substantial and represents a major offset against the cost to the Nation of maintaining the essential mari- time resources needed for security purposes. Hence, it is no* surprising that the political and economic benefits of a viable merchant marine continue to re- ceive prominent attention in the promulgation and implementation of Federal maritime promotional policies as programs are sought which minimize the net cost to the Nation of maintaining this essential national resource. Over the years, Federal maritime assistance has been provided in many forms through programs of both direct and indirect aid. Using the Federal sub- sidy classification scheme developed by the Joint Economic Committee of the Congress, 4 "' it is possible to identify past or present maritime assistance pro- grams that fall into each of the six Government aid categories described by that Committee. Direct cash payments in the form of ship construction and ship operating subsidies have been a mainstay of Federal support since 1936. Tax assistance is pro- vided through special provisions allowing tax defer- ral on income set aside for new ship construction. Credit aid has been provided in the form of direct " Message from the President of the United States, House Doc. 118, 74th Congress, 1st Session (1935), p. 31. 45 U.S. Congress, Joint Economic Committee. Federal Subsidy Programs. A staff study prepared for the use of The Subcom- mittee on Priorities and Economy in Government. Washington, D.C., Government Printing Office, 1974, p. 1. V-28 Government loans for ship construction and through Federal loan guarantee programs. After major wars, Federally-owned vessels have been provided to pri- vate operators at bargain prices yielding a form of Federal aid identified by the Joint Economic Com- mittee as a benefit-in-kind subsidy. Discriminatory duties on foreign-built vessels during our early his- tory and the restriction of domestic waterborne com- merce to carriage only by vessels registered and built in the United States are two examples of regu- latory subsidies which have been provided. And finally, purchase subsidies, which accrue when the Government buys goods and services at higher prices than necessary, have been made available through Government mail contracts and through U.S. -flag preference requirements associated with the trans- portation of Government-sponsored cargoes. Thus, while the motivations for Federal assistance to the merchant marine have been numerous and varied, so have the programs through which such aid has been administered. In the rest of this section many of these programs and activities are described in greater detail in the context of their historical development. Maritime Aid Before 1936" For much of the first century of our history, Fed- eral aid to U.S. shipping and shipbuilding was con- fined primarily to indirect assistance provided through such devices as discriminatory duties on foreign-flag vessels and restrictions on U.S. registry and trade participation eligibility. In 1789, for exam- ple, legislation was enacted limiting U.S. registry exclusively to vessels built in U.S. shipyards. This law, which was originally designed to protect the in- fant U.S. shipbuilding industry, remained in force for well over one hundred years before it was repealed in 1912. To aid the emerging ship operating industry in the early period, discriminatory tonnage duties were im- posed on all foreign vessels engaged in the U.S. coastal trades. This form of limited domestic trade protection continued into the early 1800s, but it was soon supplanted by more restrictive legislation enacted in 1808, which, for the first time, excluded foreign vessels altogether from participation in the carriage of U.S. coastal commerce. Cabotage laws reserving U.S. domestic commerce exclusively for vessels built in the United States and operated under U.S. registry have since been a consistent feature of U.S. shipping policy, although it was not until 1920 that the noncontiguous domestic trades were included in these restrictions. Under the terms of Section 27 of the Merchant Marine Act of 1920, trade between the United States and its offshore territories and possessions (except trade with the Virgin Islands) was also reserved for vessels built in the United States and operated under U.S. flag. The 1920 Act, commonly referred to as the Jones Act, is the legislative authority for contemporary cabotage restrictions. Before the Civil War, cabotage and U.S. registry restrictions were the primary forms of Federal aid « Samuel A. Lawrence. United States Merchant Marine Pol- icies and Politics. Washington, D.C., The Brookings Institution, 1966. This source has been used extensively in developing mate- rials for this section and many of those which follow. In many respects much of the material presented here constitutes a summary of the detailed account presented by Lawrence of the history of U.S. shipping policy. provided to the U.S. merchant marine, and, under these limited protections, the U.S. shipping and ship- building industries grew and prospered. During the first half of the 19th century, the United States at- tained a position of great prominence in shipping which reached its peak with the introduction of the famous clipper ships in the 1840s. But in the after- math of the Civil War the U.S. position rapidly deteriorated with the conversion from sail to steam. During the war, many U.S. merchant vessels were lost in action and many more were transferred to foreign registry by their owners in order to avoid involvement in the hostilities. Together these occur- rences substantially diminished the U.S. merchant fleet and, after the war, inflated U.S. prices and high taxes seriously hampered U.S. fleet recovery. In this same period England attained a substantial technological lead in steamship development. The ready availability of abundant coal close to the sea and the availability of a substantial pool of skilled iron workers provided Great Britain with unique advantages as merchant shipping entered the steam age. Although it had been the U.S. vessel Savannah which had made the first steam crossing of the Atlan- tic in 1819, England attained clear superiority in steam propulsion by mid-century, building iron and steel-hulled steam-powered vessels and replacing paddlewheels with more efficient screw propellers. To counter the U.S. shipping decline following the Civil War, a new federal subsidy program was in- augurated that authorized several U.S. lines to be operated under Government contract. The program soon collapsed, however, when it was learned that one of the major Government contract holders had expended large sums in lobbying for higher contract payments. Although bribery was never proved, the distaste for direct Federal assistance to the shipping industry persisted for many years after the 1872 scandal. 47 By the turn of the century, U.S. shipping had slipped to the point where ships of American registry it Ibid., p. 35. V-29 were carrying less than 10 percent of our foreign commerce and only one U.S. trans-Atlantic line re- mained in operation. During this period, three events focused sharp public attention on the need to revive the U.S. merchant marine. 48 First, in 1898 during the Spanish-American War, the U.S. Navy found itself heavily dependent, at several critical points, on foreign merchant support vessels. This U.S. fleet deficiency imposed particular hardships on Naval operations in the Philippines and in maintenance of the Cuban blockade. Following the Spanish-American War the peace- time commercial adequacy of the U.S. fleet was also found seriously wanting when, during the Boer War from 1899 to 1902, many British vessels were with- drawn from U.S. service in order to support the British war effort. Shipping rates escalated rapidly in the U.S. trades and the quality of service plum- meted. As a consequence, U.S. exports suffered major setbacks in world markets. Finally, the voyage of the Great White Fleet in 1907 and 1908 provided a highly visible expression of both our naval strength and our maritime weak- ness. Intended as a demonstration of U.S. sea- power, the 14-month voyage of 16 first-line U.S. battleships and other naval vessels was significantly blemished when sufficient auxiliary shipping to sup- port the voyage could not be secured from the U.S. merchant fleet. As a result the Great White Fleet became dependent for its support on "... a motley array of colliers, tankers and tenders bearing the flags of the world." 49 These three events provided fresh impetus for a thorough reconsideration of the appropriate Federal role in the promotion and protection of the U.S. merchant marine, and a lively public debate ensued regarding what the Government could or should do to improve the maritime situation. The focus of this debate quickly centered on one major issue — free trade versus protectionism. Essentially "free trade" Democrats urged removal of the 1789 restriction against U.S. registry of lower cost foreign-built ships whereas "protectionist" Re- publicans wanted to retain the protection afforded to the shipbuilding industry under the 1789 law and provide the U.S. operating industry with direct Fed- eral subsidy assistance. Ultimately it was the free trade position which prevailed, and in 1912, through a provision included in the first Panana Canal Act, duty-free importation of foreign-built vessels for use in U.S. foreign commerce was authorized and duties were removed from materials imported for ship- building, outfitting, and repair. Unfortunately, this liberalization of U.S. import policies was soon found insufficient to improve appreciably the condi- tion of the U.S. merchant marine. Higher U.S. crew costs, 50 the cost of registry transfer, and the absence of any real advantage to U.S. -flag operation con- tinued as major impediments to U.S. fleet expansion. In 1913, the Congress attempted to rectify this situation by including a provision in the Underwood Tariff Act allowing a 5 percent tariff reduction on dutied goods imported aboard U.S. -flag vessels. Al- though this program proved to be a major aid to U.S. shipping, it was subsequently struck down by the Supreme Court. In its 1915 decision, the Court ruled that the program conflicted with U.S. treaty obligations, citing language in the Underwood Act itself requiring U.S. treaty compliance. By the time World War I began in Europe, the U.S. fleet had declined to the point where its pres- ence in the carriage of U.S. foreign commerce was virtually nil. As a consequence, after the war began, the withdrawal of European-registered vessels from the U.S. trades left the United States in a critical position. Two immediate steps were taken to ease this situation. First, legislation was passed author- izing the Government to issue war risk insurance covering U.S. -owned merchant vessels in order to allow such vessels to continue operating under war- time conditions. And second, legislation was enacted liberalizing the terms under which U.S. -owned, foreign-flag vessels could be transferred to U.S. regis- try. Although these two actions yielded immediate re- sults, it was soon evident that these initiatives would not produce all of the tonnage needed to meet U.S. commercial requirements. As a result, the Wilson Administration initiated a drive for additional legis- lation to authorize Government acquisition and op- eration of the merchant fleet. This initiative was delayed in the Congress, however, and it was not until 1916, with enactment of the Shipping Act, that this program was finally authorized. Although the program embodied in the Shipping Act of 1916 was designed to provide merchant shipping to meet com- mercial requirements, implementation of the new Government program had not really begun by the time the United States entered the war in April 1917. Consequently, the program was quickly converted to an emergency shipping and shipbuilding program in support of the war effort. As indicated in the previous section of this report, the Shipping Act of 1916 is today most notable for its regulatory provisions. In 1916, however, the focus of attention was clearly on its emergency au- IH Samuel A. Lawrence, op. cit. note 46, pp. 33-34. « Ibid., p. 34. ■ r >o It is interesting to note that the higher U.S. crew costs in this period were not generally traceable to U.S. citizen manning requirements on U.S. registered vessels. In this period, only watch officers on ships in the U.S. domestic trades were required to be U.S. citizens. It was not until 1915 that the Seamen's Act was passed, becoming the forerunner of subsequent citizenship requirements by requiring that 75 percent of the crew on U.S. ships speak the same language as the ship's officers. V-30 thority. The 1916 Act established a five-member independent Shipping Board with broad promotional, investigatory, regulatory, and administrative powers and authorized the Shipping Board to set up a Gov- ernment corporation (the Emergency Fleet Corpora- tion) to build and operate merchant vessels. Under this legislation more than 3,000 ships were ulti- mately authorized for construction although only about one-sixth of these vessels were completed be- fore the end of the war. 51 The United Stares emerged from World War I with a merchant fleet representing 22 percent of total world capacity in terms of gross tonnage. 52 This fleet, which had five times the lift capacity of the pre- war fleet, was, however, more than half Government- owned, and many of the vessels, hurriedly built under wartime conditions, were ill-suited to peace- time commercial requirements. Because the Shipping Act of 1916 authorized Government ownership and operation of merchant vessels for only 5 years be- yond the duration of the war, and because it con- tained no guidance for disposing of Government- owned shipping capacity, new legislative authority was clearly needed. Congress responded with enactment of the Mer- chant Marine Act of 1920. Under the provisions of this legislation, the Shipping Board was directed to determine what shipping lines and services were needed to support U.S. foreign and domestic com- merce and to sell or charter Government ships to establish and maintain such services. If necessary, the Shipping Board was also authorized to operate commercial services itself until other suitable private services could be arranged. Furthermore, inexpensive Government loans were authorized in support of new private merchant ship construction. In this period many felt that, given the size of the postwar fleet, sufficient Government promotion, some loan assist- ance, and, if required, temporary Government opera- tion of commercial vessels, private U.S. operators would have little difficulty in capturing and maintain- ing a large share of U.S. foreign trade with little additional direct Federal aid. However, almost imme- diately after enactment of the 1920 Act, the shipping industry entered a major worldwide depression and by 1922, 17 percent of the tonnage in the world fleet lay idle. 53 The inability to sell ships to private operators on satisfactory terms led the Government to undertake commercial operations itself, but large deficits in the program created growing pressure for the Government to dispose of its merchant ships on whatever terms it could get. In 1928, additional legislation was enacted pro- viding a new form of Federal assistance to U.S.-flag private commercial operators. Under the terms of the Merchant Marine Act of 1928, the Government was authorized to provide private U.S. operators with lucrative mail carriage contracts which were in- tended to offset the growing differential between U.S. and foreign operating costs. The broad intent of the new program was to encourage U.S. fleet renewal and expansion, and facilitate the disposal of remain- ing Government-owned vessels. This Act, however, proved difficult to administer and the subsidy value of the mail contracts frequently bore little relation- ship to actual U.S. /foreign shipping cost differ- entials. Because of numerous controversies among competing applicants for mail contracts, the program failed to facilitate the sale of Government ships and failed to encourage substantial private fleet expan- sion. Again, the search for a workable Government program began. In addition to the promotional programs em- bodied in the Merchant Marine Acts of 1920 and 1928, there was also a minor retreat in the early 1920s from the free import policy which had been adopted as part of the 1912 Panama Canal Act. Under the provisions of the Tariff Act of 1922, the U.S. shipbuilding industry regained a small part of the protection it had lost in 1912 through the imposi- tion of a 50 percent ad valorem duty on all repairs, parts, and equipment purchased abroad for a Un- registered vessel. Today this ad valorem duty re- mains in effect (19 U.S.C. 1466). 54 The failures of the programs undertaken under the provisions of the Merchant Marine Act of 1928 together with the onset of the depression, precipitated a great deal of criticism, in the early 1930s, of both the substance and administration of U.S. shipping policy. In response to this criticism, under authority which had been provided by the 1933 Independent Officers Appropriations, the President reduced the Shipping Board in size to three members, relieved it of its independent status, and reestablished the Board as a Bureau within the Department of Commerce. At the same time three separate investigations of the mail contract subsidy program were undertaken — one by a select Congressional committee chaired by Senator Hugo Black, a second by the Post Office Department, and a third by the Department of Com- merce assisted by an interdepartmental committee of staff experts. The Black Committee produced the strongest criti- cisms of the mail subsidy system and called for repeal of the 1928 Merchant Marine Act and complete ces- 5i Samuel A. Lawrence, op. cit. note 46, p. 40. •" Ibid., p. 40. 53 Ibid., 42. si It is important to note that the Tariff Act of 1922 did not change the duty-free status of foreign-built ships, although, over the years the value of this free import status has been diminished by the provisions of various new government programs. Today foreign-built U.S.-flag vessels are ineligible to receive operating subsidies from the government and, for a period of 3 years, are precluded from participation in the carriage of government preference cargoes. V-31 sation of further aid to U.S. operators. Essentially the position taken by the Black Committee was to urge maximum Government involvement in both the acqui- sition and operation of a merchant fleet of precisely the size and composition needed to achieve specifi- cally identified national objectives. Although this approach was not adopted in subsequent legislation, many of the specific proposals recommended by Black and his associates for protecting the Government interest were included in the new subsidy program which eventually emerged in 1936. The Post Office and Commerce reports, while critical of the mail contract subsidy system, urged far less sweeping reforms. The Post Office study basically recommended retention of the existing sys- tem with improvement of administrative procedures. The Commerce report emphasized the importance of maintaining a U.S. merchant marine through Govern- ment aid, but recommended that future Federal assist- ance be strictly tied to actual differences between U.S. and foreign construction and operating costs. Upon receiving these reports, President Roosevelt forwarded them to the Congress together with a brief statement expressing his views on the importance of maintain- ing a viable merchant marine. While the President expressed his support for the abolition of indirect sub- sidies and for the substitution of some. form of more direct construction and operating assistance based on U.S. /foreign cost differentials, he left it to Congress to decide how large and what kind of shipping and shipbuilding capacity should be maintained and how it should be owned and operated. The Merchant Marine Act of 1936 During 1935 and 1936 Congress debated the issue of Government versus private ownership of merchant shipping and focused considerable attention on tech- niques for maintaining an efficient U.S. foreign trade fleet. Extensive consideration was also given to the technical issue of whether or not it would be possible to determine accurately the parity requirements if a subsidy system based on U.S. /foreign cost differen- tials were adopted. During these deliberations, how- ever, little attention was directed to establishing pre- cise maritime objectives and, as a consequence, when the Merchant Marine Act of 1936 emerged it did not specifically identify the size and kind of merchant marine which was sought through the programs it established. At the broadest level, the 1936 Act, which remains the primary statutory authority for contemporary Federal subsidy programs, simply reaffirmed and re- fined the basic national policy of Federal support for a private merchant marine which had been embodied in the Merchant Marine Acts of 1920 and 1928. Para- phrasing Section 101 of the 1936 Act, it declared a national policy of fostering the development and en- couraging the maintenance of a merchant marine suffi- cient to carry the domestic waterborne commerce and a substantial portion of the foreign commerce of the Nation in essential trades; capable of serving as a naval and military auxiliary in time of war; owned and operated insofar as practicable by citizens of the United States; and composed of the best-equipped, safest, and most suitable types of vessels, constructed in the United States and manned by a trained and efficient citizen personnel. Beyond this broad state- ment of national policy, however, little additional guidance was provided in the law as to the size and type of merchant marine that would be needed to achieve these broad maritime objectives. Under the provisions of the 1936 Act, new direct construction and operating subsidy programs, based on U.S. /foreign cost differentials, were established to replace the mail contract subsidies that were to be phased out in compliance with Title IV of the Act. Through the operating-differential subsidy (ODS) program and the construction-differential subsidy (CDS) program, direct cash payments from the Fed- eral Government were to be provided to qualified applicants to defray the higher cost of building ships in U.S. shipyards and the higher cost of vessel opera- tion under U.S. registry. Although many "free trade" Democrats remained opposed to the provision of direct subsidies to the shipping and shipbuilding in- dustries, the Roosevelt Administration lent its sup- port to the concept, having become convinced that the best way to control maritime aid was to provide it directly, exposing the aid to regular and continuing budget scrutiny. The new law also established a new agency to administer its provisions and carry out various regu- latory responsibilities under the Shipping Act of 1916 and the Intercoastal Shipping Act of 1933. Although Federal regulatory and promotional func- tions were retained within a single agency, the estab- lishment of a new five-member, bipartisan, inde- pendent U.S. Maritime Commission reflected a thorough displeasure by almost everyone with the operation of the Shipping Board Bureau and its predecessor. Hence, the new law sought not only a change of program, but a change in administration as well. As a compromise to those who favored Govern- ment ownership and control of merchant shipping, a separate title (Title VII) was included in the 1936 Act authorizing the Government to build and sell or charter vessels if necessary to achieve the broad objectives of the Act. Furthermore, as indicated pre- viously, many of the protective provisions recom- mended by Senator Black and his supporters were also incorporated in the legislation. V-32 Under the terms of Title III of the 1936 Act, strict U.S. crewing requirements were imposed on all vessels built or operated with Federal subsidy assistance. All subsidized cargo vessels were required to be manned entirely with native-born or fully naturalized citizens. Some limited noncitizen man- ning was authorized on subsidized passenger vessels, but only in the steward's department. Citizenship requirements for non-subsidized U.S. -registered ves- sels were also strengthened in 1936 with enactment of companion legislation requiring licensed officers and pilots on all U.S. -flag vessels to be citizens and requiring 75 percent of the crew on such vessels to be U.S. citizens. Both of these pieces of legislation also included other standards relating to seagoing working conditions, and together these laws greatly expanded Federal responsibility for overseeing con- ditions of employment aboard all U.S. -registered vessels, particularly subsidized vessels. As originally drawn, the 1936 Act was primarily devoted to providing Federal aid to the liner segment of the U.S. fleet although it did authorize a study of the need for subsidy assistance for U.S. tramp ship- ping. Under the terms of the Act, subsidy was to be provided only for vessels operated on routes and in services which the Maritime Commission determined to be essential to the promotion of U.S. foreign com- merce. This essential trade route concept, which to- day remains a major factor in assessing subsidy eligibility for liner vessels, had been first elaborated in the Merchant Marine Act of 1920 in conjunction with efforts to determine where commercial services should be established after World War I. In addition to the trade route essentiality require- ment associated with the new subsidy programs, the 1936 Act also included a variety of other eligibility, monitoring, and reporting requirements which were imposed as a condition for receiving a subsidy. For example, subsidy recipients were required to file detailed reports specifying the nature of their cor- porate structure, the nature of any interests in foreign-flag shipping, information regarding domestic carriage activities, and other information. Such in- formation was required to assure compliance with restrictions and prohibitions relating to interests held in foreign-flag and domestic trade shipping opera- tions. Another provision of the 1936 Act precluded the payment of subsidy in support of any service in competition with another U.S. carrier except in cases where service inadequacy could be demonstrated. Another required that all operating subsidy recipients establish capital reserve funds to be used for vessel replacement. Annual contributions to such funds were required. And finally, the 1936 law included subsidy recapture provisions under which certain excess profits from subsidized operation or construc- tion were required to be returned to the Government. For subsidized ship operations the amount required to be recapture was one-half of any profit in excess to be recaptured was one-half of any profit in excess the subsidized operation and, for subsidized construc- tion, one-half of any profit in excess of 10 percent of the construction contract price. The recapture provisions of the construction subsidy program were subsequently supplanted by contract renegotiation procedures established to cover all Government work at a particular shipyard and the recapture provisions of the operating subsidy program were repealed by the Merchant Marine Act of 1970. In addition to direct subsidy aids provided through the operating-differential subsidy and construction- differential subsidy programs, the 1936 Act included two other indirect assistance programs designed to encourage U.S. fleet expansion. First, earnings set aside in capital reserve funds for new vessel con- struction were relieved of income tax liability. Second, the Government lending program for ship construction, which had been first authorized under the Merchant Marine Act of 1920, was retained, although new restrictions were included on the allow- able interest rates for such loans. This latter provi- sion is a direct lending authority that remains in force, but has not been used for many years. Loan assistance is, today, provided through the Title XI Federal Ship Financing program, the basic authority for which was added to the Merchant Marine Act in 1938. In recognition of the national security role of the U.S. merchant marine, a variety of defense and security provisions were also incorporated in the 1936 Act. The U.S. Maritime Commission, in ap- proving subsidized vessel designs, was required to coordinate such designs with the Navy. Any special noncommercial national defense features recom- mended by the Navy were to be included and fully funded by the Maritime Commission. Vessels con- structed with subsidy assistance were made subject to repurchase by the Government at cost-less-accu- mulated-depreciation, and power was provided to requisition other private U.S. -owned vessels under certain national emergency conditions, with provi- sions included for "just compensation." (In 1954, similar authority to requisition foreign-owned vessels was extended under the provisions of the Emergency Foreign Vessels Acquisition Act.) Finally, under the provisions of Section 503(f) of the Act, the Com- mission was required to undertake an annual survey of U.S. shipbuilding capacity in coordination with the Navy in order to assure the adequacy of the shipbuilding mobilization base in light of the Na- tion's security needs. In implementing the new Merchant Marine Act, the first order of business was to terminate existing claims associated with the mail contract program. Under the terms of Title IV of the Act, a June 30, V-33 1937, deadline had been established for the termi- nation of the mail contract program, and this dead- line was met by the new Maritime Commission. While the mail contracts were being settled, how- ever, a thorough economic assessment of the mer- chant marine was also being made by the Maritime Commission to serve as the basis for future program execution. Based on the findings of its Economic Survey of the American Merchant Marine, which was published in November 1937, the Commission announced its intention to build 50 merchant ships per year over a 10-year period. The announced pro- gram was designed simply to maintain existing U.S. fleet capacity through the replacement of obsolete tonnage and was not a fleet expansion program. Be- cause sufficient financing was not available to under- take the desired construction privately, the program was begun under the provisions of Title VII and ships were constructed for Government account. By the end of 1939, 127 dry cargo vessels had been contracted for under the new 500-ship pro- gram, but private buyers had been found for only 38 of these vessels. The success of the operating subsidy program in this period was also limited and, because of these developments, the Government continued to operate several older Government-owned services through charter arrangements with private firms. Dur- ing this period, the Maritime Commission also estab- lished a new Government-sponsored Good Neighbor service to South America. As indicated previously, a new Title XI was added to the Merchant Marine Act in 1938, which author- ized the provision of Federal insurance on eligible ship mortgages as a means of encouraging private capital investment in U.S. ship construction. Over the years this program, which is now the primary program for ship financing and refinancing assistance carried out by the Government, has been revised many times and was completely overhauled in 1972. Today, the Title XI program is a financing guaran- tee program (rather than a mortgage insurance pro- gram) under which the Government guarantees shipbuilding obligations sold to investors. Under the present program, such guarantees may be provided by the Federal Government covering up to 75 per- cent of the construction cost of vessels built with construction-differential subsidy assistance, and non- subsidized construction projects may qualify for Fed- eral guarantees of up to SIV2 percent of vessel cost. Vessels to be used in both the foreign and domestic trades are eligible for Title XI aid. Today the types of U.S. vessels specifically eligible for mortgage guarantee assistance include: cargo, passenger, and combination ships, tankers, tugs, towboats, barges, dredges, fishing vessels, floating drydocks, and oceanographic research and pollution abatement ves- sels. Coverage has also been extended by legal inter- pretation to mobile offshore drilling rigs. Under current arrangements, the National Oceanic and At- mospheric Administration administers the Title XI program with respect to fishing vessels, and the Maritime Administration administers the rest of the program. The program to build 50 ships per year had just begun to show results when, in August 1939, war began again in Europe. Because of the hostilities, the U.S. merchant ship construction program was rapidly expanded and by the time the United States entered the war about 6 million deadweight tons of shipping had been ordered from U.S. yards and a vessel of simplified design (the Liberty Ship) had been devel- oped for mass production and export to Great Britain. 55 In 1941 the United States entered the war, and within a year and a half the United States was build- ing ships faster than the enemy could sink them. From 1942 through 1945, U.S. yards produced 5,592 merchant ships and during this period expendi- tures for merchant ship construction exceeded $12 billion. A work force of 4 million workers was in- volved in this effort, with 1.7 million employed in the shipyards themselves. In February 1942 the Government took over di- rection of ship operations with the establishment of the War Shipping Administration. The Chairman of the Maritime Commission also served as head of this agency, and the two departments worked closely together. The new agency took over the fleets of both domestic and foreign trade operators, purchased foreign ships, and seized enemy shipping. New ways were devised to maximize vessel use, and thousands of merchant seamen were recruited and trained. Dur- ing the war four-fifths of the supplies for the war effort were carried on ships under the control of the War Shipping Administration. Maritime Policy After World War II At the beginning of World War II, only 14 percent of world merchant tonnage was registered under U.S.- flag. The United States emerged from the war with 60 percent of total world capacity. Postwar recon- struction programs imposed heavy demands on mer- chant shipping capacity, and efforts were begun im- mediately to restore private control of U.S. shipping. The War Shipping Administration was abolished in September 1946, and its remaining functions were transferred to the Maritime Commission. By the end of 1947 all ships taken over from private interests had been returned to their owners. The great demand for M Samuel A. Lawrence, op. cit. note 46, p. 74. V-34 shipping to carry relief supplies and the inadequacy of private shipping to meet this demand made it necessary to place large numbers of Government- owned ships under charter, but, as conditions im- proved, this chartering operation declined. By the middle of 1950 fewer than 100 Government-owned vessels remained in the chartering program. To dispose of the hundreds of Government-owned war-built ships, the Merchant Ship Sales Act was enacted in 1946. This legislation authorized ship sales not only to U.S. citizens, but to our allies as well, as part of the postwar reconstruction effort. When the Merchant Ship Sales Act expired in 1951, 1,956 ships had been sold (843 to U.S. operators and 1,113 to foreign flag operators) at a return of nearly $2 billion to the Government. Under the terms of Section 1 1 of the Merchant Ship Sales Act, the Maritime Commission was required to establish and maintain a National Defense Reserve Fleet (NDRF) of Government-owned merchant ships to be used in the event of future national emergencies. Ships for this fleet were selected after consultation with the Secretary of the Navy and were placed in eight anchorages — three each on the East and West Coasts and two on the Gulf Coast. On June 20, 1950, the reserve fleet reached its maximum size of 2,277 ships. Since establishment of the NDRF, vessels held in the fleet have been activated on several occasions to meet emergency shipping requirements. In the early 1950s, some 300 reserve fleet vessels were reactivated in support of U.N. forces in Korea. At about the same time, a critical commercial shortage of world shipping capacity also developed because of increases in Euro- pean demand for American coal and the need to transport large quantities of grain to India where a series of natural disasters had severely limited agri- cultural output. To reduce the detrimental impact of these commer- cial shortages, additional ships from the NDRF were activated and devoted to the carriage of grain to India. In January 1952, a peak of 725 NDRF vessels in active service was attained in response to the com- bination of these commercial requirements and the military support requirements associated with the hostilities in Korea. Ships from the NDRF were again activated in 1956 when the Egyptian nationalization and closing of the Suez Canal precipitated another worldwide shipping crisis. The need to ship many goods over greater distances resulted in a substantial commercial ship- ping shortage and forced freight rates rapidly upward. The shortage and higher freight rates placed a major burden on the United States, and, as a consequence, an extensive NDRF reactivation was undertaken. A total of 223 dry cargo ships and 29 tankers were eventually activated in response to this crisis. The most recent reactivation of vessels from the NDRF was undertaken in support of the war in Viet- nam, during which 172 reserve fleet vessels were with- drawn from the fleet and placed in active service under contracts with private operating companies. This operation, which ended in November 1970, was motivated more by commercial considerations, how- ever, than by emergency necessity. By using NDRF vessels instead of commercial ships for this service, U.S. -flag commercial operations were not unduly in- terrupted. Generally, it was felt that the diversion of U.S. -flag capacity from its usual trading patterns would have significantly damaged commercial opera- tions, because many regular U.S. -flag customers would have been forced to seek alternate services. Once lost, it was felt that such customers would be difficult to recapture and that the long-term cost of this commer- cial damage would greatly exceed the cost of NDRF reactivation. Increasingly, this NDRF role in protect- ing U.S. commercial shipping by providing a capacity which may be used during limited emergencies has been cited as a major justification for the continued maintenance of at least some reserve fleet capacity. During both World Wars American shipowners were provided with Government-sponsored war risk insurance, but at the end of each war this coverage was discontinued. In 1952, to meet Korean War re- quirements, a new title XII was added to the Mer- chant Marine Act of 1936 establishing what has become a more or less permanent war risk insurance authority. Under this program the Government is authorized to insure or reinsure vessels or other components of the U.S. foreign trade marine transportation system against loss or damage due to war when it is deter- mined that such coverage is not commercially avail- able on reasonable terms, and when it is determined that without such coverage, U.S. waterborne com- merce would suffer. Coverage authority extends to both U.S. and foreign flag vessels owned by U.S. citizens and, if necessary, may be extended to foreign- owned foreign-flag vessels engaged in U.S. commerce. This war risk insurance authority includes an expira- tion date which has been periodically extended by the Congress. The statutory basis of the program lapsed briefly from September 9, 1975, through October 17, 1976, but the current authority runs to September 30, 1979. The lapse of authority in 1975-76 was due prin- cipally to controversy surrounding the availability of this coverage to foreign flag vessels. Many U.S. opera- tors sought an end to this program for foreign vessels. Ultimately, foreign coverage authority was retained but stricter eligibility requirements were imposed to assure that such vessels are needed to meet national security requirements. In addition, vessel location reporting requirements were imposed on all foreign vessels included in the program. Following the Korean hostilities, there was a V-35 dramatic decline in the demand for tramp shipping and, as a consequence, pressures began to emerge for a greater reservation of Government cargoes for private U.S. -flag vessels to aid this segment of the U.S. fleet. Although prior to 1954 a number of laws had been enacted which contained U.S. preference provi- sions for various Government cargoes, legislation was now sought which would yield a more comprehensive preference program covering all Government-spon- sored cargoes. The result of this effort was enactment, in 1954, of a new preference statute as an amendment to the Merchant Marine Act of 1936. Under this pro- gram, 50 percent of virtually all Government-spon- sored shipments must now be made aboard private U.S. -flag vessels to the extent such vessels are avail- able at fair and reasonable freight rates. Two of the pre- 1954 preference programs, still retain special significance, because they impose prefer- ence requirements beyond those contained in the 1954 law. Under the Military Transportation Act of 1904 all supplies moved by sea for the U.S. armed forces must be carried by U.S. vessels if freight rates are not ". . . excessive or otherwise unreasonable." However, since this law does not specify that such carriage be performed by private vessels, compliance before 1954 could be achieved by carriage exclusively aboard government-owned vessels. The joint application today of both the 1904 and 1954 preference statutes means that 100 percent of military cargoes must be carried aboard U.S. vessels and that 50 percent of this require- ment must be met by carriage aboard vessels owned by private operators. The second pre- 1954 preference program still in effect stems from Public Resolution 17, which was passed in 1934 and expressed "the sense of Congress" that cargoes exported from the United States as a result of loans made to foreign purchasers should be shipped exclusively in U.S. vessels if available at reasonable rates. After World War II, as a part of the U.S. reconstruction program, a general policy was adopted under which a waiver of up to 50 percent of the U.S. carriage reservation would be granted in favor of vessels of the recipient nation if that nation did not discriminate against U.S. vessels in its foreign trade. This policy remains in effect, and foreign recipi- ents of Export-Import Bank credits regularly apply to the Maritime Administration for such "general waivers." In 1961 an amendment to the 1954 Cargo Prefer- ence Act was passed which raised an important bar- rier to the redocumentation of foreign vessels in the United States. Under the terms of this amendment, foreign vessels transferred to U.S. registry are excluded for a period of 3 years from participation in the pre- ference trade established by the 1954 Act. Hence, while foreign vessels may still be imported on a duty- free basis, they are precluded for 3 years from carry- ing the preference cargoes upon which many non- subsidized U.S. vessels are heavily dependent. (Such foreign-built vessels, of course, are also ineligible for operating subsidy as well as for participation in the carriage of U.S. domestic commerce.) Ultimate responsibility for compliance with U.S. cargo preference laws extends directly to each indi- vidual Government agency, although the U.S. Mari- time Commission and its successors have served as general coordinators of this program. Today, the Maritime Administration is authorized to establish administrative provisions governing cargo preference implementation with which shipper agencies must comply. Since the cargo preference statutes require only that the preference share be carried by U.S. -regis- tered vessels, it has frequently been argued that when subsidized U.S. vessels carry these cargoes they are in effect receiving a "double subsidy." In 1970, this issue was addressed by the Maritime Subsidy Board under Docket S-244. As a result of its ruling in this case, which was subsequently sustained on appeal, the Subsidy Board established a procedure for op- erating subsidy reduction in cases where subsidized liner operators become excessively dependent on preference cargoes. Under this ruling liner recipients of operating differential subsidy (ODS) are allowed to participate in the carriage of preference cargoes with no reduction of ODS so long as receipts from this preference carriage do not exceed 50 percent of total revenues. If they should exceed 50 percent of total revenues, ODS is reduced by a percentage that is tied to the amount of revenue in excess of the 50 percent ceiling. Although the 1970 ruling pertained only to liner operations, bulk carriers, which today receive ODS under the provisions of the Merchant Marine Act of 1970, are generally precluded, under the terms of their subsidy contracts, from participating in the carriage of the preference share of preference ship- ments. They are, however, free to compete with all other carriers (both U.S. and foreign) for carriage of the non-preference share of such cargoes. It should be noted that there are currently no restric- tions with respect to the carriage of preference car- goes imposed on any U.S. vessels that have been built with construction-differential subsidy. Before World War II and in the early postwar period, the Government did not hesitate to use the provisions of Title VII of the Merchant Marine Act to build and sell or charter vessels in order to accom- plish the purposes of the 1936 Act. In the postwar period, the most significant title VII construction program was the program begun in 1951 under which 35 "Mariner" class vessels were built for Government account. These 20-knot, 13,000-ton, general cargo ships were specifically designed to be highly adaptable to military use in the event of a national emergency. Ultimately, 29 of these vessels V-36 were sold to private operators, 5 were assigned to the Navy, and 1 was lost at sea. Except for the con- tract to construct the nuclear ship Savannah, no construction has been initiated under Title VII authority since 1953 when the last of the Mariner construction contracts was signed. In the years following World War II, three differ- ent Federal organizational structures have existed for carrying out U.S. shipping policy. As noted previously, upon abolition of the War Shipping Ad- ministration in 1946, administrative, promotional, and regulatory responsibilities in this area were re- turned to the U.S. Maritime Commission. Although this had been the arrangement of these functions be- fore the war, dissatisfaction with the intermingling of these responsibilities soon emerged in the postwar period, and in 1950 the President's Reorganization Plan No. 21 abolished the U.S. Maritime Com- mission. In place of the independent Maritime Commission, two new agencies were established and located in the Department of Commerce. A three-member Fed- eral Maritime Board was constituted to carry out all Federal regulatory functions and certain quasi-judi- cial functions associated with the rendering of sub- sidy determinations, and a Maritime Administration was established to carry out the administrative re- quirements associated with the implementation of various merchant marine promotional programs. Under this arrangement, the Chairman of the Fed- eral Maritime Board also served as ex-officio Ad- ministrator of the Maritime Administration and the two bodies were served by a common staff. When functioning in a regulatory capacity, the Board was to be independent of the Secretary of Commerce, but, in its quasi-judicial subsidy role, it was to be guided by promotional policies established by the Secretary. The Maritime Administration discharged its responsibilities strictly in compliance with De- partment of Commerce authority. Although this basic structure was retained throughout the 1950s, it became an increasingly con- fusing and cumbersome arrangement the longer it remained in effect. As Lawrence has noted in his dis- cussion of this period, things had become so confused by 1959 that the Chairman/Administrator of the Federal Maritime Board — Maritime Administration had adopted the practice of signing all documents in both official capacities so that his actions could not be challenged for having been taken under the wrong authority. 56 In 1961 Presidential action was again taken in an attempt to rectify these organizational difficulties. Under Presidential Reorganization Plan 7, the Fed- eral Maritime Board was abolished and its regulatory functions transferred to a new independent five- member Federal Maritime Commission. The Mari- time Administration was retained within the Depart- ment of Commerce, and to its other responsibilities were added the subsidy determination functions previously exercised by the Federal Maritime Board. Subsidy rulings under this arrangement were to be discharged by a Maritime Subsidy Board consisting of the Maritime Administrator, the Deputy Maritime Administrator, and the Maritime Administration General Counsel. The organizational structure established in 1961 for the first time completely separated the promo- tional and regulatory functions of the Federal Gov- ernment and placed them in totally separate agen- cies. This structure has been retained since 1961. The Merchant Marine Act of 1970 Because of the large number of Government- owned ships sold to private operators after World War II, few new ships were constructed in the United States in the postwar period and during the 1950s and 1960s the U.S. -flag merchant fleet declined rapidly. In 1950, U.S. -flag vessels carried more than 40 percent of the country's total foreign commerce; by 1969 this figure had declined to about 5 percent, and three quarters of the vessels in the U.S. fleet were more than 20 years old and economically obso- lete. Although a few new ships were added to the fleet each year, these were primarily breakbulk ves- sels and total construction under the subsidy pro- gram in this period was limited. In an effort to reverse the decline of the 1950s and 1960s, and to provide incentives for expansion of the U.S. bulk fleet, a comprehensive overhaul of the Merchant Marine Act of 1936 was undertaken. On October 21, 1970, the President signed into law the amendments to the 1936 Act, which are known collectively as the Merchant Marine Act of 1970. At the broadest level, enactment of the Merchant Marine Act of 1970 represented a general reaffirma- tion of the national policy of Federal support for the U.S. merchant marine. Although the 1970 act im- plemented a number of major program adjustments designed to increase the effectiveness of the Mer- chant Marine Act of 1936, the fundamental policies embodied in the 1936 Act emerged essentially unal- tered. The commitment to maintain a viable U.S. merchant marine was reiterated, and the major pro- grams of Federal aid, although modified, were re- tained. Direct construction and operating subsidies remained central to the U.S. Federal assistance pro- gram, and additional aid was continued through such programs as construction fund tax deferment 5(i Samuel A. Lawrence, op. cit. note 46, p. 257. V-37 privileges, Federal mortgage guarantees, and cargo preference for Government-sponsored cargoes. The Merchant Marine Act of 1970 did not insti- tute any truly fundamental changes in U.S. maritime policy, but it did include numerous major program changes that were intended to completely modernize Federal maritime assistance programs. These changes emerged after months of study by the Administration and after extensive hearings before the Congress. The changes were based on a synoptic review of existing Government maritime policies and pro- grams. Hence, the 1970 Act, while not a new policy initiative, constituted a comprehensive refinement of Federal maritime assistance activities. Many of the program changes adopted in 1970 remain intact, and, in the paragraphs below, the most important of the changes implemented will be briefly discussed. In seeking ways to revitalize the declining U.S. merchant marine, a common view emerged early in the process that, regardless of the specific types of Government aid used to support the revitalization effort, an essential ingredient required for success would be a firm and explicit long-term Government commitment to the task. As a consequence, when the 1970 Act was passed, it included a specific pledge of Government support for a 10-year, 300- ship construction program to be undertaken with Government-provided construction-differential sub- sidies. This commitment, which was incorporated in Section 209 of the Merchant Marine Act, included authorization to appropriate funds needed to achieve this construction objective. The basic purpose of this commitment was to encourage investment in and modernization of U.S. shipbuilding facilities in order to improve U.S. shipbuilding productivity and there- by reduce U.S. -foreign construction cost differentials and subsidy dependence. Another construction-related initiative incorpor- ated in the 1970 Act was the authorization it pro- vided to grant construction-differential subsidies (CDS) directly to shipyards rather than limiting CDS eligibility to ship purchasers only. This change was designed to encourage greater shipyard partici- pation in vessel design. It was felt that shipyards would be able to influence designs in ways that would ease construction, lower building costs, and increase shipyard productivity. Negotiated contracting between shipyard and purchaser, as an alternative to competitive bidding, was also authorized under the 1970 Act insofar as certain conditions could be met. The negotiated con- tract procedures were included to help reduce ship- building costs by eliminating expenses associated with bid preparation and as a means of encouraging shipyards to develop and market standard vessel de- signs. To take advantage of the negotiated contract- ing procedure, the purchaser and builder were re- quired to submit backup cost data to demonstrate the reasonableness of the price; the Secretary of Com- merce was required to determine that the price was fair and reasonable; and the shipyard was required to agree to be audited by the U.S. Comptroller Gen- eral. As an additional requirement, the Act specified special declining construction-differential subsidy rate ceilings which could not be exceeded in conjun- tion with any negotiated CDS contract. Declining CDS rates (which were the same as those imposed as a condition of negotiated procure- ment) were also specified as objectives for all CDS awards regardless of the type of contracting pro- cedure used. These goals called for a maximum CDS rate of 45 percent in fiscal year 1971 and a reduction of this ceiling by 2 percentage points in each subsequent fiscal year until a level of 35 per- cent was achieved for fiscal year 1976. After 1976 the 35 percent CDS ceiling objective was to be re- tained. If at any time it was determined that these specific annual objectives could not be met, the Secretary of Commerce was authorized to negotiate with bidders in an effort to come as close to the objectives for the period as possible. Hence, while the CDS rate objectives embodied in the 1970 Act constituted legal requirements for the purposes of negotiated procurement, these ceiling rates were ob- jectives with respect to CDS paid in conjunction with competitive procurement. Nonetheless, the 1970 Act made it clear that these goals were to be actively pursued for all CDS contracts. To encourage the construction and operation of badly needed bulk carriers, the Merchant Marine Act of 1970 included a number of provisions which were specifically aimed at aiding the bulk segment of the U.S. merchant fleet. Although the construction sub- sidy provisions of the Merchant Marine Act of 1936 had been revised in 1952 to authorize CDS for bulk carriers, by 1970 no bulk vessels had been built un- der these provisions. Consequently, further changes were enacted in 1970 to provide additional govern- ment encouragement for bulk fleet expansion. Among the bulk shipping provisions of the Act, the one which implemented the most fundamental change was the provision extending operating-differ- ential subsidy eligibility to U.S. -built tankers and dry bulk carriers. This was the first time such vessels had been authorized to receive operating aid. In addition, subsidy eligibility restrictions pertaining to U.S. com- panies or individuals who also owned foreign ship- ping were liberalized with respect to bulk shipping operations in order to allow such owners to sys- tematically replace foreign tonnage with new U.S. capacity. Finally, limits on foreign-to-foreign trading were liberalized for subsidized bulkers in recognition that the nature of the bulk shipping industry was dis- tinct from the liner industry. Together with the avail- ability of Title XI mortgage guarantees and a 10- year Government commitment to fleet expansion, it V-38 was felt that these changes would, for the first time, make the construction subsidy provisions of the Act responsive to the needs of bulk shipping operators as well as liner operators. In an effort to keep operating subsidies to a mini- mum and encourage effective collective bargaining by ODS recipients, the 1970 Act revised the wage subsidy provisions of the Merchant Marine Act by tying subsidizable U.S. wage expenses to a general U.S. wage index. Under this system, wage increases in excess of the amount allowed by the index were no longer authorized for subsidy, and wage levels which were kept below the index level would yield extra subsidy income for the operator. A limit was placed on the extent to which true wage costs could vary from the index-based "subsidizable wage cost," and every few years (not less than two or more than four) a new base period was to be established at which time actual wage rates would be used as a new starting point for subsequent years. Through this program ODS operators were given important incentives to keep subsidizable wage cost increases to a minimum. The 1970 Act extended eligibility to establish tax deferred Capital Construction Funds, under the terms of Section 607 of the Merchant Marine Act, to virtually all U.S. vessel operators. Before 1970, this program was available only to ODS recipients. Although all U.S. operators can now establish such funds, the use to which these funds may be put is limited. Such tax deferred funds may be used only for the construction or reconstruction of vessels for use in U.S. foreign commerce, for use on the Great Lakes or in the non-contiguous domestic trades, or for use in the fisheries of the United States. Hence, these funds may not be used for the construction of vessels for the inland and intercoastal domestic trades. Similar, although much more limited, tax deferral benefits are available, however, through the Con- struction Reserve Fund program (Section 511), which does not preclude the construction of vessels intended for inland and intercoastal domestic serv- ice. Basically, this program allows any U.S. operator to establish a fund into which gains on the sale or other disposition of a vessel may be deposited on a tax-deferred basis. However, this program does not allow other tax-deferred deposits (such as earnings) so it is generally used only for accumulating funds to construct vessels ineligible for the Capital Con- struction Fund Program. Under the Merchant Marine Act of 1970, the operating subsidy recapture provisions of the 1936 Act were repealed. As indicated previously, subsi- dized operators before 1970 were required to pay to the government one-half of profits (averaged over a 10-year period) in excess of 10 percent on capital necessarily employed in subsidized operations up to the amount of subsidy actually received. Elimination of recapture was justified principally because much the same function was now performed by higher corporate tax rates and over the years the program had become expensive and difficult to administer. In addition to the major program elements dis- cussed above, the 1970 Act also contained numerous other provisions affecting various maritime promo- tion programs and their administration. The ceiling on the amount of outstanding debt which could be guaranteed under Title XI was raised from $1 bil- lion to $3 billion. (Subsequent amendments have in- creased this ceiling to a current level of $7 billion.) The 1970 Act established a Commission on Amer- ican Shipbuilding to study the U.S. commercial ship- building industry and report within 3 years. A new position of Assistant Secretary for Maritime Affairs was established in the Department of Commerce, al- though the new position was required to be occupied by the same person who serves as Maritime Ad- ministrator. The Act included a provision requiring agencies subject to cargo preference to administer their preference responsibilities in accordance with regulations promulgated by the Secretary of Com- merce. And finally, the 1970 Act specifically identi- fied the Great Lakes as a fourth seacoast and re- quired that it be given equitable treatment under the Merchant Marine Act with respect to its foreign trade requirements. These were the major provisions of the Merchant Marine Act of 1970, which were intended to provide the legislative foundation for a 10-year program of U.S. maritime renewal. In the next section a number of other general support activities carried out by the Maritime Administration will be discussed and the following section will describe progress achieved to date under the terms of the 1970 Act and the pro- gram deficiences which have emerged. General Federal Maritime Support Activities Beyond the specific shipping and shipbuilding aid programs carried out by the Maritime Administra- tion, a number of additional general support activi- ties are conducted which are designed to further overall U.S. maritime policy objectives and provide support for other broad national goals. Included in this category are programs in such areas as research and development, maritime manpower, market de- velopment, environmental protection, and national security. Brief consideration will be given to the major developments in these areas since 1970. Over the years, programs sponsored or conducted directly by the Maritime Administration and its predecessors have spawned major technological ad- V-39 vances in marine transportation. It has been esti- mated that various provisions of the Merchant Marine Act of 1936 have been responsible in whole or in part for the production of about 9,150 vessels. 57 In the course of this massive effort, the Maritime Ad- ministration and its predecessors have consistently been in the forefront of naval architecture and marine engineering and have contributed materially to the advancement of these disciplines. In World War II these capabilities were directed to the mass pro- duction of merchant vessels of simplified standard design in support of the war effort in the largest ship construction program ever undertaken. And in peacetime these talents have been directed to the task of keeping U.S. construction and operating costs as low as possible while at the same time setting high standards for the shipping and shipbuilding industries. In recognition of the importance of U.S. technol- ogical development to the success of the 1970 mari- time program, Maritime Administration research and development activities were expanded. One of the prominent objectives of the program begun in 1970 was to increase the relative efficiency of U.S. ship- ping and shipbuilding in order to diminish the de- pendence of these industries on Federal assistance. In pursuit of this goal, the Maritime Administration research and development program was significantly enlarged and redirected to emphasize short-term de- velopment projects with early application potential. This expanded Government-sponsored R&D effort has been of particular importance to the U.S. ship- ping and shipbuilding industries, inasmuch as limited profitability has tended to minimize the resources available within the industries themselves for R&D activities. This program has made possible many re- search projects aimed at improving the competitive position of the U.S. merchant marine, which could not otherwise have been undertaken. While MarAd R&D budgets averaged $6 to $7 million per year in the late 1960s, budgets from 1971 through 1976 averaged between $20 and $25 million per year. To increase the likelihood that research and de- velopment results will be directed to meet industry needs and subsequently adopted, industry participa- tion in planning and carrying out research projects has been actively encouraged. As a consequence of this effort, the present MarAd R&D program is char- acterized by substantial industry participation and cost sharing. From the beginning of fiscal year 1971 through the end of fiscal year 1976, funds authorized by Congress for MarAd R&D totaled about $127 million. Additional industry contributions to MarAd- 57 E. Scott Dillon, Ludwig C. Hoffman, and Donald P. Roseman. "Forty Years of Ship Design Under the Merchant Marine Act, 1936-1976." Paper presented before the Annual Meeting of the Society of Naval Architects and Marine Engi- neers, New York, November 11-13, 1976, p. 2. sponsored R&D projects over this period were about $62.3 million, bringing the total program to about $189.3 million for the 6-year period. It should be noted that the industry cost-sharing percentage has grown over the past 3 years. Analyzing the 760 research and development proj- ects undertaken since the beginning of fiscal year 1971, the Maritime Administration estimates that these projects have already returned at least $84 mil- lion worth of benefits. Over the next 10 years, MarAd estimates that the net present value of eco- nomic benefits expected to accrue from these same projects could aggregate more than $2 billion. To increase U.S. -flag foreign trade carriage and increase the use and efficiency of U.S. marine trans- portation services, the Maritime Administration con- ducts a vigorous marketing program on behalf of all U.S. -flag operators. Essentially, this program con- sists of two elements. First, extensive marketing in- formation and cargo data are maintained by the agency for use by U.S. operators in support of their individual marketing efforts. And second, a major promotional program is conducted by the agency itself to familiarize shippers with the advantages of transporting their cargoes on U.S. -flag vessels. In support of this second component of the program, MarAd marketing representatives visit shippers and shipper associations around the country to promote patronage of U.S. carriers. Another marketing initiative with which the Mari- time Administration has been extensively involved is the National Maritime Council (NMC), which was established in 1971 to develop and encourage indus- try cooperation in the promotion of the U.S. mer- chant marine. Providing a forum for the exchange of ideas and information, and the presentation of opinions and problems, NMC has proven extremely successful in maintaining intra-industry harmony in pursuit of common goals. Today, NMC consists of 33 member organizations representing all aspects of the maritime industry. MarAd's Office of Market Development serves as Executive Secretariat. The cooperative spirit engendered by NMC is given a large share of credit by MarAd for the stable labor- management relations which have prevailed in the industry since 1970. Under the auspices of MarAd's market develop- ment program, a major national conference was held in 1976 at Hyannis, Mass., to consider the special problems which have impeded expansion of the U.S. fleet in the carriage of dry bulk commodities. De- spite increased Federal support available under the 1970 Act, this segment of the fleet has continued to decline, and, today, U.S. participation in this area stands at less than 2 percent of the total U.S. foreign trade in dry bulk commodities. The Hyannis Confer- ence brought together bulk shippers and leaders representing all segments of the maritime industry in V-40 an effort to identify specific impediments to U.S. -flag expansion in the bulk trades, to recommend initia- tives to improve performance in this area, and to make known to those not fully familiar with the U.S. maritime program the aids already available to bulk shipping. The conference generated 36 recommenda- tions, which have led to several administrative ac- tions to improve the MarAd bulk shipping effort. In addition, a package of legislative proposal relating to bulk shipping is being developed. To assure the availability of a well-trained work- force for the U.S. merchant marine, the Maritime Administration conducts a number of programs for manpower training and development. In addition, MarAd assists in labor-management negotiations, serving as a neutral source of information for both labor and management, in an effort to facilitate the peaceful settlement of disputes and avoid disruptive strikes. 58 Under the provisions of Section 216 of the Mer- chant Marine Act, the Maritime Administration maintains the U.S. Merchant Marine Academy at Kings Point, N.Y., which provides students with a college education and the training necessary to as- sume positions as officers in the merchant marine upon graduation. In addition, Federal assistance is also provided to support training for merchant ma- rine officers at six State maritime schools. Authority for this program is contained in the Maritime Academy Act of 1958. Beyond these officer training assistance programs, the Maritime Administration also supports several other marine training activities. Five radar training centers are operated around the country under joint MarAd-Coast Guard sponsorship and are available for use by qualified merchant seamen, inland water- way, offshore drilling, and mining vessel operators, maritime academy students, and NOAA and Coast Guard personnel. Firefighting and fire damage con- trol courses are given by MarAd and the Navy's Military SeaLift Command. And finally, the recently opened Computer-Aided Operations Research Facil- ity (CAORF) r ' 9 at Kings Point, although primarily a research facility, is expected to yield substantial auxiliary training benefits to the ship operating industry. In conjunction with the developing trade between the United States and the Soviet Union, the Mari- 68 A principal service provided by MarAd during labor-man- agement negotiations is access, by all parties, to the computer- based Maritime Contract Impact System (MCIS) which pro- vides rapid calculation and evaluation of the impact of changes in base wages and fringe benefits. 59 CAORF, developed and operated under the MarAd research and development program, provides a full-scale mockup of a vessel bridge with computer equipment designed to simulate the operating characteristics of various vessels under a wide variety of operating conditions. This facility is designed principally as a research tool to test and analyze new operating procedures, port configurations, and equipment, and to assess human re- actions under various normal and abnormal operating conditions. time Administration has played a major role in nego- tiating and implementing the shipping agreements governing these trades. On October 14, 1972, U.S. and Soviet officials signed a major 3-year maritime agreement which provided a general framework and established a set of ground rules governing mari- time relations between the two nations. Modified and extended for another 6 years in 1975, the objec- tives of both the original and extended agreement were to open the channels of maritime commerce between the two nations by opening major U.S. and Soviet commercial ports to specified kinds of U.S. and Soviet-flag vessels and to provide vessels of each country with an opportunity to participate equally and substantially in the carriage of all waterborne cargoes moving between the two nations. In defining the substantial share of cargoes to be carried by the vessels of the Soviet Union and the United States, the agreement sets forth the intention of each coun- try to provide its vessels with an opportunity to carry not less than one-third of all cargoes moving in the trade. The remainder of the trade is available to vessels of other flags. In implementing this agreement, bulk carriage freight rates for the U.S. -flag share of agricultural cargoes exported from the United States to the Soviet Union have been periodically renegotiated to assure that U.S. vessels carry the one-third share allotted to them at charter rates which provide a reasonable return to the U.S. operator (after receipt of operat- ing subsidy), but which do not impede U.S. grain sales. Essentially, U.S. negotiators have sought rates equivalent to those which would have to be obtained by foreign carriers in order to continue long-term profitable operations. When an operating differential subsidy, paid by the U.S. Government, is added to this revenue to offset the U.S. /foreign cost differ- ential, the U.S. operator is assured an opportunity for profitable participation. At the same time, the Soviet Union pays a reasonable price for the ship- ping service. During periods when grain exports to the Soviet Union are large, this trade can provide a major source of employment for U.S. -flag bulk carriers. As a primary participant in negotiations relating to the terms governing shipping services in this trade, the Maritime Administration helps assure that U.S. op- erators have a fair chance to take full advantage of this important trade opportunity. In support of its national security mission, the Maritime Administration maintains the National Defense Reserve Fleet and carries out a variety of planning and readiness functions designed to assure the adequacy and timely availability of shipping and shipbuilding resources in the event of war or other national emergency. Over the years, the number of ships maintained in the reserve fleet has declined dramatically and, as of June 20, 1977, the NDRF V-41 consisted of 344 Navy and MarAd vessels held in three reserve fleet sites. The number of retention ships in the fleet (vessels which receive conventional preservation treatment, dehumidification, and ca- thodic protection) now stands at 216, of which 149 are MarAd vessels and 67 are Navy-owned. The remaining ships in the NDRF are either scrap candi- dates or designated for special programs. As indicated previously, a major role now cited for the NDRF is to provide the United States with a surge capability in order to minimize the disrup- tion to regular U.S. commercial carriers in a limited national emergency. To improve the responsiveness of the NDRF to meet such requirements, a program was recently undertaken to place about 30 NDRF vessels in a special ready-reserve status that would permit activation in as little as 5 to 10 days. So far, seven vessels have been placed in ready reserve status and one additional vessel is now being modi- fied for the program. The Maritime Administration also coordinates with the Navy Department through the Navy Sealift Readiness Program (SRP). Under this program, car- riers in the regularly scheduled berthline trades who wish to carry Department of Defense preference cargoes in peacetime must commit half of their ship- ping capacity to military support operations in the event of a nonmobilization emergency. Because they are fully operational in peacetime, SRP vessels can be made available more quickly in an emergency than most of the vessels in the Reserve Fleet. MarAd works closely with the Navy on this program to assure that the shipping capacity to meet emergency requirements will be available when needed, while at the same time assuring that the negative com- mercial impact is minimized. Until July 1, 1977, the Sealift Readiness Program required vessel callup for a minimum of 6 months and a maximum of 12 months. Because a 6-month diversion from normal trading patterns could result in substantial commercial damage, this provision was changed, reducing the minimum call up period to 4 months and the maximum to 9 months. It is now expected that SRP ships will be used to meet initial emergency requirements and then released as quickly as possible to their normal trades before foreign flag carriers can make significant inroads. In the meantime, reserve fleet vessels can be acti- vated as necessary to provide sustained support. Other emergency preparedness activities carried out by the Maritime Administration include the de- velopment of contingency plans for emergency mobi- lization of ports, merchant shipping, and the ship- building industry. Such planning is essential because the Maritime Administration, in its capacity as the National Shipping Authority, would be responsible for port and merchant shipping operations during mobilization and would share shipbuilding responsi- bility with the Navy. Planning activities in these areas are fully coordinated with other relevant Fed- eral agencies and with the appropriate elements of NATO. Finally, a number of Maritime Administration activities are carried out in response to growing national concerns for environmental protection and energy development, transportation and conserva- tion. In the area of environmental protection, the agency participates in a wide variety of domestic and international programs designed to minimize the adverse environmental consequences of activities related to marine transportation. A primary concern of the Maritime Administration in this area is to maximize marine environmental protection while at the same time assuring that full advance considera- tion is given to the potential impact of various envi- ronmental initiatives on U.S. shipping and trade. In the area of energy production, MarAd has become a major participant in supporting capital investment in the rapidly expanding offshore drilling industry. For fiscal year 1976, about one-third of the total value of loans guaranteed under the Title XI program was accounted for by loans for drilling ships, platforms, and drilling service vessels. 60 In the area of energy transportation, a number of special analyses have been made or are underway to assess anticipated future requirements for various types of energy carriers, ranging from tankers to liquefied natural gas carriers to propane and butane carriers. One recent example was a study released in October 1976 assessing the adequacy of the U.S. tanker fleet to meet oil carriage requirements for the Alaska oil trade and to analyze expected require- ments for the Strategic Petroleum Reserve. 61 This study, and subsequent assessments, led to steps to augment the U.S. domestic fleet by allowing tempo- rary employment of some subsidized tankers in the Alaska trade upon repayment of subsidy. Steps also have been taken recently to authorize limited par- ticipation by some ODS tankers in the carriage of preference oil destined for the Strategic Petroleum Reserve. While engaged in such carriage, however, these tankers will not receive operating subsidy. With respect to energy conservation, the Maritime Administration conducts a variety of research and promotional programs aimed at improving the en- ergy efficiency of the U.S. shipping and shipbuilding industries. In conjunction with efforts in this area, close and continuous coordination is maintained with appropriate agencies of the Department of Energy. eM U.S., Department of Commerce, Maritime Administration, MARAD '76: The Annual Report of the Maritime Administra- tion for Fiscal Year 1976 and the Transition Quarter Ending September 30, 1976. Washington, D.C., Government Printing Office, April 1977, p. 83. "' U.S. Department of Commerce, Maritime Administration, Office of Policy and Plans. The U.S.-Flag Tanker Fleet and Domestic Carriage Requirements — An Assessment of Fleet Ade- quacy. October 21, 1976. V-42 Progress Under the Merchant Marine Act of 1970 Although the specific objective of initiating the construction of 300 merchant ships between 1971 and 1980 was included in the 1970 Act, it is now evident that this goal is not likely to be achieved. By mid- 1977 construction-differential subsidy (CDS) had been awarded for a total of only 66 new ships, aggregating 6 million deadweight tons and valued at $3.3 billion. In addition, CDS contracts had been let for the reconstruction or conversion of 27 exist- ing general cargo vessels to modern containerships. It is important to note that progress toward the 300-ship goal is somewhat understated by the raw CDS construction figures alone. When the 300-ship objective was established, it was predicated on the construction of vessels generally smaller than those which have actually been contracted for to date. Despite this partial distortion, however, it is none- theless clear that the level of new construction under the program has fallen short of the objective. A major factor impeding progress toward the 300- ship goal has been the worldwide shipping and ship- building recession which began after the 1973 Arab oil embargo. The tanker industry was particularly hard hit by this recession, and in April 1976 (the peak of the recession's impact on the tanker fleet) about 50 million tons of tanker capacity was idled around the world. In addition, foreign trade gen- erally was hampered by the precipitous rise in oil prices following the embargo. As a consequence of these events, commercial demand for new U.S. vessels all but evaporated despite the availability of expanded Federal assistance under the 1970 Act. Of course, since 1970, additional construction beyond that supported by construction subsidies has also been initiated under the expanded Title XI mortgage guarantee program. While such mortgage guarantees have been used extensively to secure financing in conjunction with CDS-supported proj- ects, the Title XI program also has aided in financ- ing an additional $2 billion worth of nonsubsidized construction since 1970. Considering all U.S. mer- chant ship construction from mid- 1972 through the end of 1976, U.S. shipyards delivered a total of 98 new merchant vessels representing more than 5.2 million deadweight tons of new U.S. capacity. Thus, although the success of the 10-year building program has been mixed and while U.S. shipyards will clearly require additional contracts to sustain present production levels, the current shipyard order- book in the United States is substantial. It should be emphasized, however, that because new orders have not kept pace with deliveries, this orderbook is expected to begin a serious decline by mid- 1978. Over the past few years, U.S. shipyards have been partially insulated from the full impact of the world shipbuilding recession principally because of con- struction demands associated with large new domes- tic trade requirements. Among these, the most not- able has been the U.S. -flag tanker requirement asso- ciated with the delivery of Alaska oil. As of June 1, 1977, the U.S. orderbook for new merchant ship construction consisted of 69 vessels, totaling more than 6.2 million deadweight tons and valued at $4.2 billion. Of these 69 ships, 46 are tankers. In assessing progress under the Merchant Marine Act of 1970, it is interesting to compare various 1982 trade penetration projections developed by MarAd shortly after enactment of the 1970 Act 62 with the U.S. participation rates which have actually been attained thus far. Although changes in the U.S. for- eign trade outlook and changes in the construction mix have rendered these early projections largely obsolete, the comparison provides a useful indication of how far U.S. -flag trade penetration results are likely to vary from those originally expected under the 300-ship program. Overall, MarAd projected that the new program could be expected to yield U.S. -flag foreign trade penetration of between 14 percent and 17 percent in terms of tonnage by 1982. However, by 1976, U.S. foreign trade participation was only 4.9 percent by tonnage, just slightly higher than the 4.6 percent level that had been attained in 1969 before the new program. 63 While total U.S. -flag foreign trade car- riage grew dramatically over this period, total U.S. trade grew at an equal pace. The 1982 expectation for liner trade penetration was set at 35 percent to 50 percent in terms of ton- nage and 50 percent in terms of value. In 1976, U.S. -flag vessels transported more than 30 percent of the tonnage of liner cargoes in U.S. foreign trade and these cargoes represented more than 31 percent of the total value of such cargoes. Comparable U.S. penetration figures for 1969 were 23 percent by tonnage and 27 percent by value. The favorable trend since 1969 in this area reflects a substantial upgrading and modernization of the U.S. liner fleet principally through the incorporation of intermodal technology. Today the U.S. intermodal fleet is the 62 U.S. Department of Commerce, Maritime Administration, Office of Policy and Plans. New Maritime Program Progress Analysis Report on the Objective: To Increase U.S.-FIag Par- ticipation in the U.S. Foreign Trade. Unpublished Maritime Ad- ministration Report, March 1972, p. 8. 63 The 1976 trade penetration figures presented in these para- graphs are based on preliminary Census data as reported in U.S. Department of Commerce, Maritime Administration, Office of Subsidy Administration, U.S. Oceanborne Foreign Trade Report, December 1976, No. 3 Annual Recap. Washington, DC Maritime Administration, September 1977. Prior year penetration figures are from U.S. Department of Commerce, Maritime Ad- ministration, MARAD '76: The Annual Report of the Maritime Administration for Fiscal Year 1976 and the Transition Quarter Ending September 30, 1976. Washington, DC, Government Printing Office, April 1977, p. 76. V-43 largest and most modern in the world and includes 105 containerships, 23 lighter or barge carrying ves- sels, and 14 roll-on/roll-off vanships. It now appears that the expected tonnage penetration range in this area may still be achieved. However, the value pene- tration level originally expected is not likely to be attained. Under the 1970 program, it was originally ex- pected that the tankers to be built would yield capac- ity sufficient to carry about 10 percent of the liquid bulk cargoes moving in the U.S. foreign trade. The trade forecast upon which this expectation was based, however, did not anticipate the explosive growth in U.S. dependence on foreign oil and on more distant sources of foreign oil. As a conse- quence, even though U.S. tanker construction has greatly exceeded original estimates, trade penetration gains have not been large. In 1969, U.S. -flag tanker carriage represented 3.2 percent of total tanker tonnage. In 1976, this pene- tration was 4.2 percent. Because of the currently depressed state of the world tanker market and the unanticipated need to carry large quantities of Alaska oil to U.S. Gulf Coast markets via Panama, foreign trade penetration gains in the short term will remain difficult to achieve. Some U.S. vessels that would otherwise be expected to engage in foreign commerce if rates were stronger will be drawn to the protected domestic carriage of Alaska oil until such time as a pipeline is developed to transport the West Coast surplus to other U.S. markets. As capac- ity is released from the Alaska trade (after comple- tion of one or more of the proposed West Coast pipelines), U.S. foreign trade penetration could im- prove substantially, depending on the level and source of total U.S. oil imports, the condition of the world tanker market, and the ability of U.S. carriers to compete for foreign trade cargoes. As noted previously, the dry bulk segment has been the least responsive element of the U.S. fleet to the new expansion incentives provided under the 1970 Act. Only two ore/bulk/oil carriers have been built under the program, and the U.S. dry bulk trade penetration level today is lower than the 1969 level. Originally, the construction of a substantial number of dry bulk carriers was anticipated and the expected 1982 U.S. penetration level was set at 14 percent of total tonnage. It is evident that this level of penetra- tion is not likely to be achieved, although MarAd is actively investigating new initiatives in an attempt to improve performance in this area. During the first 5 years of the new maritime pro- gram, the construction subsidy rate objectives in- corporated in the 1970 Act were met fully. All CDS contracts awarded in fiscal year 1971 were held be- low the 45 percent ceiling established for that year and, as the ceiling declined by 2 percentage points each year thereafter, these goals too were met through the end of fiscal year 1975, by which time the CDS ceiling had fallen to 37 percent. In part, this early success was aided by the two dollar de- valuations that occurred in December 1971 and Feb- ruary 1973. In addition, however, improved ship- building productivity encouraged under the 1970 Act, also contributed significantly to this success. Since enactment of the 1970 Act, the shipbuilding industry has invested more than $1 billion in mod- ernization and capital improvements. Progress in reducing CDS rates ended abruptly in fiscal year 1976, however, as the recession in the world shipbuilding industry became severe. In the wake of numerous order cancellations, the competi- tion for replacement orders became acute and for- eign construction prices plummeted. As a conse- quence of these developments, the U.S. /foreign construction cost differential widened and the CDS rate objective of 35 percent for fiscal year 1976 became unattainable. Since authority to award competitive bid contracts with CDS rates up to 50 percent was still available under the 1970 Act, a contract for the construction of two vessels was awarded in fiscal year 1976 under this provision at a CDS rate just under the 50 per- cent ceiling. Negotiated contracts, however, were not authorized at the higher rates because use of that procedure had been conditioned on meeting the spe- cific CDS objectives. Only July 31, 1976, the declining construction subsidy rate goals were completely abandoned with enactment of a new amendment to the Merchant Marine Act, which reinstated negotiated contracting authority without regard to CDS objectives. Under this authority, which extends through June 1979, the 50 percent CDS statutory maximum rate still applies as it does in the case of competitive bidding. All of the other requirements associated with negotiated contracting must still be met, but the lower CDS ceiling requirements previously imposed have been eliminated. It should be emphasized that the con- struction of LNG vessels has been possible at CDS rates well below the statutory maximum. In fact, all CDS-sponsored LNG construction to date has been at rates below the goals originally set in 1970. In looking at the total record of progress since enactment of the Merchant Marine Act of 1970, it is clear that while the pace of maritime revitalization has not been as rapid as originally hoped, and while progress has been extremely disappointing in some areas, many significant gains have been made. For example, although the number of privately owned vessels in the U.S. fleet declined from 793 in 1970 V-44 to 579 at the end of 1976, the aggregate cargo capacity of 'this fleet increased from 14.4 million to 15.6 million deadweight tons, In addition, average speed increased, average age declined, and the pro- portion of intermodal vessels expanded substantially. All of these factors have contributed to a steady in- crease in the aggregate delivery capacity of the fleet and to the reliability of U.S. commercial carriage. Major Current Issues Over the next few years several identifiable issues are likely to be of major concern in the development and execution of Federal maritime promotional pol- icies and programs. This section considers these emerging issues. First, a number of special demands for U.S. tanker capacity will be imposed on the U.S. merchant fleet as a consequence of Alaska oil trade requirements and preference requirements associated with estab- lishment of the Strategic Petroleum Reserve. These demands are likely to require continuing Federal at- tention to assure the appropriate allocation of avail- able tonnage to meet these requirements. A brief discussion of these and other potential sources of U.S. tanker demand is included in the paragraphs below. As Alaska pipeline production expands beyond the 700,000 barrel-per-day level sometime early in 1978, the quantity of Alaska oil which will be surplus to West Coast needs is expected to increase signifi- cantly. To dispose of this regional surplus, a large number of tankers will be needed to transport this oil via Panama to other U.S. markets until such time as a pipeline to accommodate the surplus can be de- veloped (probably not before 1980). Because this is a domestic movement subject to the cabotage pro- visions of the Jones Act, only U.S. -flag tankers will be eligible to participate in this trade. 64 Assessments by the Maritime Administration indicate that the Alaska trade requirements (including surplus dis- position via Panama) will be within the aggregate capacity of the U.S. fleet after full consideration of other domestic carriage requirements. However, some augmentation of the non-subsidized tanker fleet will be necessary in order to meet fully the Alaska trade requirements. As a consequence of these findings, the Maritime Administration published regulations in the Federal Register on June 29, 1977, specifying the terms and conditions under which certain large U.S. subsidized tankers may be authorized to temporarily engage in the carriage of oil from Alaska to the western en- trance of the Panama Canal. In compliance with the requirements of the Merchant Marine Act, eligibility 64 Because the Jones Act does not currently apply to trade between the U.S. and the Virgin Islands, it may be possible that some Alaska oil could be transported by foreign-flag vessel to be refined in the Virgin Islands and the product subsequently transported to the mainland via foreign-flag vessel. (See material to follow for further discussion of this issue and the general issue of Jones Act applicability to other elements of the Virgin Islands oil trade.) for such domestic carriage will be limited to 6 months in any given year and will require the repay- ment of a portion of any construction subsidy prev- iously received. Tankers in the authorized size range (100,000 dwt and over) do not receive operating subsidy. So far, several tankers have been granted Alaska trade eligibility under these special provi- sions. In administering this program, careful consid- eration will be given to meeting the Alaska trade requirements while at the same time protecting the interests of non-subsidized domestic operators. Establishment of a National Strategic Petroleum Recerve (SPR) will present U.S. tanker operators with another important trade opportunity over the next few years. Under the cargo preference pro- visions of the Merchant Marine Act, 50 percent of the oil imported for the SPR must be carried by U.S. tankers to the extent such vessels are available at fair and reasonable rates. Preliminary MarAd as- sessments of SPR fill demand indicate that full 50 percent U.S. participation may not be possible in all periods of the fill cycle because of peaks in the FEA fill schedule, rising Alaska trade requirements, and, in the near term, the nonavailability of a number of U.S. vessels still under construction. Under the terms of their operating subsidy con- tracts, some 22 U.S. ODS tankers are precluded from participating in the carriage of preference car- goes. However, in order to avoid losing part of the petroleum reserve preference opportunity, the Mari- time Subsidy Board has recently granted special eli- gibility to several ODS tankers to participate in the carriage of SPR preference oil. Owners of these ves- sels have in turn agreed to forego ODS during per- iods of such preference employment. An additional demand for U.S. tanker tonnage would have been imposed had commercial oil cargo preference legislation been enacted. Under the pro- visions of the measure, which was defeated in the House of Representatives on October 19, 1977, a portion (rising to 9.5 percent by 1982) of U.S. com- mercial oil imports would have been reserved for carriage by U.S. flag tankers to the extent such vessels were available at fair and reasonable rates. Although this is the third time that efforts to enact some form of legislation for commercial oil cargo preference have failed, proponents are not likely to abandon the issue. References have already been made to another attempt at enactment. A final source of added U.S. tanker demand would follow enactment of legislation to bring petroleum V-45 imports from the Virgin Islands under the cabotage provisions of the Jones Act. Originally excluded from the Jones Act in order to aid the island economy by keeping prices down on essential items imported from the mainland, the Virgin Islands in recent years has become a major Caribbean refining center. Be- cause of the Jones Act exclusion, oil products refined in the Virgin Islands may be conveyed to the U.S. East Coast in foreign flag vessels providing Virgin Islands refiners with a competitive advantage over Gulf Coast and Puerto Rican refiners who must use higher cost U.S. vessels to carry their products to market. If legislation is enacted extending Jones Act requirements to the Virgin Islands, an immediate de- mand for an estimated 750,000 deadweight tons of nonsubsidized U.S. tanker capacity would be imposed. Pressures to extend the Jones Act to the Virgin Islands oil trade could increase substantially if ship- ments of surplus Alaska oil are allowed to be made aboard foreign-flag tankers when processed through Virgin Islands refining facilities. The Treasury De- partment (which is responsible for administering the Jones Act) has ruled that such shipments are not subject to cabotage under current law. It is interesting to note that an incentive, which will assume greater importance in the years ahead, for using U.S. ships in the Virgin Islands oil trade already exists under the oil import fee program. Es- sentially, this provision allows importers bringing oil products in from the Virgin Islands to reduce their import fee obligations if a U.S. -flag vessel is used. To date, this provision has had little effect because most of the oil now imported from the Virgin Islands is imported without fee. The amount of oil subject to fee is expected to increase rapidly in the next few years, however, making this U.S. -flag fee incentive far more important. The effectiveness of the fee incentive in encourag- ing the use of U.S. ships will, of course, depend on the relationship between the U.S. -flag fee saving and the transportation saving available by using a foreign vessel. Furthermore, the applicability of the fee pro- gram to the Alaska oil processing scheme is cur- rently unclear. Extension of the Jones Act to the Virgin Islands oil trade would presumably eliminate the fee incentive program altogether and simply re- quire exclusive carriage by U.S. vessels. The need to expand the U.S. dry bulk fleet can be expected to be another major area of concern for the foreseeable future. Today the United States has an annual dry bulk trade (including both imports and exports) of about 275 million tons, and it has been estimated that under wartime circumstances a mini- mum of 50 million tons of imported dry bulk mate- rials would be required annually from outside North America to keep the American economy in opera- tion. Because U.S. -flag dry bulk trade participation currently stands at less than 2 percent, many have identified this component of U.S. sealift capacity as the segment in greatest need of attention. In response to this concern, the Maritime Ad- ministration is assessing a variety of administrative and legislative initiatives to encourage the develop- ment and maintenance of an expanded U.S. dry bulk capacity. The types of initiatives that have been considered in this area include: • Revision of certain regulations governing the oper- ating-differential subsidy program to assure that U.S. dry bulk vessels which are operated under ODS contract achieve full U.S. /foreign cost parity. • Provision of greater trading flexibility through an expanded allowance of foreign-to-foreign trading. • Development of prototype and standard design vessels that would be given preference over non- standard designs in terms of Federal aid. • Elimination of the ship replacement obligations for bulk operators who enter operating subsidy contracts with new vessels. • Amendment of Section 804 of the Merchant Mar- ine Act to allow owners of subsidized U.S. dry bulk vessels also to operate bulk carriers under foreign flag providing safeguards are incorporated to prevent the diversion of subsidy to support the foreign operation. • Liberalization of the Capital Construction Fund provisions of the Merchant Marine Act to allow American owners of foreign flag dry bulk shipping to deposit earnings from foreign operations into a tax-deferral CCF for the purpose of accumulating funds for building new dry bulk vessels in the United States. These and related considerations pertaining to the special problems associated with expansion of the dry bulk fleet are likely to remain important issues in the future both in administering existing programs and in considering possible new legislative initiatives. Liquefied natural gas (LNG) carriers are fast be- coming a major factor in the outlook for U.S. ship- ping and shipbuilding. This reflects the growing importance of LNG as an energy source and the prominent position attained by the U.S. shipbuilding industry in the development and construction of LNG vessels. Currently, the world LNG fleet con- sists of 37 vessels with an aggregrate capacity of more than 3 million cubic meters. An additional 34 ships, totaling about 4 million cubic meters, are now under construction or on order around the world, and half of this additional capacity is on order from U.S. yards. At the present time, eight U.S. liquefied natural gas carriers are being built with construction subsidy and Title XI mortgage guarantees to bring foreign LNG to the United States. (One additional vessel intended for the U.S. foreign trade has already been delivered.) Seven LNG ships destined for foreign-to-foreign serv- ice are also on order from U.S. yards with Title XI V-46 financing assistance. Finally, two more vessels are on order (with no request for government aid to date) for potential use in the U.S. import trade. Orders could soon be forthcoming for as many as 16 more LNG vessels to carry U.S. gas imports. The prospects for U.S. shipping and shipbuilding in the LNG area will depend on future policy re- sponses to such issues as the growing public concern for the safety of LNG transport G5 and the concern over increased U.S. reliance on foreign energy sources. One important potential source of LNG carrier employment was recently eliminated by the President's decision to support the trans-Canada pipeline option for transporting Alaska natural gas to the "lower-48." Had the trans-Alaska option been adopted, it is estimated that from 8 to 1 1 LNG car- riers would have been used in the transportation operation from the liquefaction plant in Southern Alaska to regasification facilities on the West Coast. The issue of U.S. ownership of foreign-flag ship- ping and the defense utility of such shipping has long been debated. It is likely that this issue will continue to be argued, particularly in conjunction with discus- sions of U.S. policies which tend to aid the owners of foreign tonnage. As indicated previously, the lapse in authority under the War Risk Insurance Program from Sep- tember 1975 through October 1976 can be traced to Congressional concern over the appropriateness of providing war risk insurance coverage to foreign-flag carriers. While foreign coverage authority was finally extended until September 1979, foreign-flag eligibility standards were tightened to require that specific con- sideration be given to ". . . the characteristics, the employment, and the general management . . ." of any foreign-flag vessel seeking coverage in order to determine if extension of coverage would be ". . . in the interest of the national defense or the national economy . . ." In addition, all insured vessels, both U.S. and foreign, were made subject to strict location reporting requirements. While these changes did not 65 U.S. Congress, Office of Technology Assessment. Transpor- tation of Liquefied Natural Gas. Washington, D.C., Govern- ment Printing Office, September 1977. This source provides an excellent recent summary of U.S. LNG policies and projects and is particularly useful in delineating the major safety issues asso- ciated with LNG transportation. An issue closely related to considerations of LNG vessel safety which may assume importance in the near future relates to the question of whether Government indemnification to a shipbuilder may be made available under Public Law 85-804 (or if such indemnification authority should be provided) to cover LNG vessel product liability claims. Public Law 85-804 grants the President the authority to authorize any department or agency of the Government exercising functions in connection with the national defense to execute or amend contracts whenever he deems that such action would facilitate the national defense. Although shipyard indemnification for LNG vessels constructed with CDS has not yet been decided, recent developments in product liability law coupled with limited availability of ade- quate commercial insurance may necessitate consideration of in- demnification in the near future. alter the fundamental nature of the war risk insurance authority, they did offer clear evidence that it is the intent of Congress that the War Risk Insurance Pro- gram be used to provide access to needed shipping resources in a national emergency — not simply to protect U.S. -owned foreign shipping assets. Another form of controversial foreign-flag assis- tance is provided through the current tax treatment of certain income earned by U.S. owners of foreign- flag shipping. Under the terms of Subpart F of the Internal Revenue Code, certain types of income of American-controlled foreign corporations must be included as income to the U.S. shareholder in the year it is earned by the foreign company even if it is not distributed in that year to the U.S. shareholder. One such category of income subject to current taxa- tion is foreign base company service income which consists of income derived from the performance of services by a U.S. -controlled foreign corporation for a related person or corporation outside the country in which the U.S. -controlled foreign corporation is organized. In the Internal Revenue Code, however, there is an express statutory exclusion of shipping income from these foreign base company income pro- visions. It is due to this exclusion that the income of a U.S.-controlled foreign shipping corporation is gen- erally not subject to U.S. taxation in the year in which it is earned, even though the ships may have been performing services for the U.S. parent corporation throughout the year. In 1975. with enactment of the Tax Reduction Act of 1975, the value of the foreign subsidiary shipping income exclusion under Subpart F was somewhat diminished. Effective January 1, 1976, the new law eliminated the income exclusion on foreign shipping income that is not reinvested in shipping operations. As a consequence of this change, the House of Rep- resentatives Committee on Ways and Means esti- mated that additional tax revenues of $35 million would be collected each year. Income reinvested in foreign shipping, however, remains eligible for tax deferral. Since the Subpart F shipping income exclusion still provides a significant tax benefit to foreign-flag shipping (Treasury estimates place the tax revenue loss at between $90 million and $140 million per year) , it has been argued that it encourages foreign registry and is therefore contrary to U.S. maritime policy. This issue will, no doubt, continue to be raised in conjunction with future deliberations relating to both U.S. maritime policy and U.S. tax policy. Repeated demonstrations of the utility of the Na- tional Defense Reserve Fleet (NDRF) in times of national emergency and the continuing decline of this national shipping asset have led to growing demands for NDRF renewal. Under existing law, subsidized operators have had the option, in conjunction with their vessel replacement obligations, to sell older mer- V-47 chant ships to the Federal Government at their gov- ernment-appraised value. Until recently, however, this option was generally not exercised because prices were better on the open market. As a consequence, many opportunities to improve NDRF capacity were missed. In the past few months, this situation has improved dramatically and, since the beginning of January 1977, five C-3 cargo ships have been acquired under this program and placed in the NDRF. In addition, three C-4 cargo ships have been contracted for and will be added to the reserve fleet in 1979 and 1980 when their replacements are delivered. Further- more, it is now expected that eight more vessels may soon be contracted for under this authority. Because the quality of vessels acquired to date under this program has been high, all have been identified for inclusion in the Ready Reserve Fleet program under which these vessels will be maintained in an advanced state of readiness. Despite these improvements under the subsidized vessel replacement program, it is likely that other initiatives will be required if a substantial NDRF renewal is to be attained. One recently-enacted pro- gram will allow the Secretary of Commerce to ex- change NDRF scrap candidates for Mariner class vessels and other suitable commercial ships destined to be scrapped by their owners. The basic purpose of such a program will be to exchange equally valued scrap ships in anticipation that the ships traded in will have greater emergency defense utility than the vessels traded out. Authority for a similar exchange program covering only Mariner vessels expired in January 1977 without having been used. There are two major problems with this approach to NDRF renewal. First, there are only a limited number of ships remaining in the NDRF that could be traded out under this program and, second, the quality of ves- sels traded in is likely to be quite low if their only remaining commercial value is as scrap. Hence, this exchange program cannot be viewed as a major fleet renewal effort, although it may yield some marginal improvement. In the past, various proposals for NDRF revitali- zation have been advanced which would allow the Government to continually purchase, from private interests, a small amount of shipping which has high defense utility, but which has reached the end of its commercial life. It is likely that as the NDRF continues to age, this type of program will again receive renewed attention. Without a major renewal initiative, at some point in the not too distant future, the NDRF decision is likely to be made by default. Another very important issue that is likely to assume growing importance in the near future is the U.S. shipbuilding outlook in light of the lack of new orders in recent months. Unless new orders are re- ceived soon, the U.S. shipbuilding industry faces a precipitous decline in business and an associated decline in employment. The loss of jobs in shipbuild- ing and allied industries and in other sectors of the economy could be substantial and would be concen- trated in areas which already face serious employ- ment difficulties. According to Department of Labor data, 16 of the Nation's 20 major shipyards are in areas which now have substantial unemployment. A major loss of jobs in the shipbuilding industry would also seriously affect the employment levels of minorities and women in shipbuilding. A large por- tion of the recent gains in this area would be lost be- cause of the generally lower seniority of minorities and women in a "last-in, first-out" labor environment. Productivity improvements resulting from the $1.3 billion of private capital invested in commerical ship- yards since 1970 also would be jeopardized by a declining orderbook. A stable or expanding workload is needed to maintain productivity, efficient use of facilities, and the economic capability to compete for new orders. A final area which will assume considerable im- portance over the next few years is the operating subsidy program, as a number of long-term operat- ing differential subsidy contracts for liner operations come up for renewal. As the existing 20-year con- tracts expire and operators apply for renewal, the Government will have an opportunity to reevaluate and revise a substantial portion of the current ODS program. In processing applications for ODS contract re- newal, particular attention will be directed to con- trolling rising costs while continuing to support the U.S. ship operating industry in compliance with national maritime policy objectives. Three categories of subsidizable expense have been identified which probably could be reduced or eliminated without undue hardship to the U.S. operating industry. The maintenance and repair category, which in 1975 accounted for about 6 percent of total ODS accruals, has already been eliminated from several ODS con- tracts and is likely to receive careful consideration in future contract assessments. Subsidy for hull and machinery insurance premiums (slightly less than 1 percent of 1975 ODS accruals) also has been elimi- nated from some contracts, and subsidy on premiums for protection and indemnity insurance (about 2 per- cent of 1975 accruals) is considered a likely candi- date for ODS reduction in the future. The only other category of subsidizable expense for liner cargo operations is the wage category/' 6 which, in recent years, has alone accounted for 90 percent or more of total ODS accruals. Control of this item of expense since 1970 is considered to *' It should be noted that ODS is also available in support of officer and crew subsistence, but only on passenger ships. With the decline in passenger ship operations, this subsidy item is being rapidly phased out. V-48 have been fairly rigorous, because of the use of the wage subsidy index system (which ties subsidizable U.S. wage expenses to a general U.S. wage index) and because of successful efforts to reduce total manning levels on U.S. -subsidized vessels. In addition to the cost control expected to be achieved through the elimination of certain subsi- dizable expenses a thorough reassessment of the entire ODS program has been initiated recently by the Maritime Administration in an effort to identify changes which might enhance the efficiency of the ODS fleet and thereby reduce future subsidy de- pendence. Essentially, this study will address the possible productivity benefits to be derived from allowing subsidy recipients greater operating flexibil- ity. A principal focus of this study will be an exami- nation of the appropriateness of the essential trade route concept in light of the impediments it imposes on operating flexibility. These then are some of the major specific issues which are likely to be of prominent concern over the next few years with regard to the promotion of U.S. shipping and shipbuilding. In addition, of course, many of the infrastructure and regulatory issues dis- cussed in the previous sections will also include im- portant promotional considerations. As a conse- quence, it can be expected that careful attention will also be directed to many of these issues with respect to their potential effect on the future of the U.S. merchant marine. V-49 Chapter VI: The Marine Environment The Ocean and the Marine Environment The marine environment includes the coastal zone, estuaries, shelf waters, and open ocean. These oceanic regions are environmentally related and im- pacts in one region can have profound effects on the waters of another. The coastal environment and land-based activities directly affect the health and productivity of coastal waters. Offshore waters are common property resources. Unlike land, they belong to no individual. As such, the ocean has suffered the "Tragedy of the Com- mons." x Without the vested interests of property owners, a resource can be depleted or the environ- ment can be degraded for present benefits without regard for the future. Protection of the environment and preservation of natural resources held in com- mon by the public are secondary to immediate profit since there is no assurance that other exploiters will not reap the benefits. International cooperation and government regulation and control can be effective tools for protection of common property resources. It is this feature that sets the ocean apart from land- based, privately owned property. Environmental Pressures Pollution problems did not originate with the 20th century, but the accelerated discovery of new sub- stances and consumption of energy in this century have added to both the abundance and kinds of wastes that must be disposed. With the increasing need to dispose wastes from human activities has come the realization • that not only the amount, but the nature and be- havior (fate and effects) of pollutants are cause for concern; • that the ocean does not have an infinite capacity for waste assimilation; and • that the problem of pollutants and their deriva- tives, which are brought about by technological and economic development and demographic change, is likely to worsen rather than improve. The absence of alternative methods for land-based disposal of wastes from human activities has forced man to turn to the ocean with increasing frequency. With the discovery and expanded use of derivatives of organic compounds, such as halogenated hydro- carbons and synthetic organic chemicals resistant to degradation, modern society has the potential to in- flict more lasting effects on the marine environment. The use of toxic materials in industrial processes, and their presence in consumer products, continues to expand. Many of industries' newly developed syn- thetic and organic chemicals, or their byproducts, will reach the sea. A 1975 report of the National 1 Garrett Hardin. "The Tragedy of the Commons." Science 162: 1243-1248, 1968. Academy of Sciences — Assessing Potential Ocean Pollutants — identified transuranic elements and hexa- chlorobenzene as potential problems, but did not consider substances now being developed. It is un- certain what the nature of newer compounds will be, but, based on past experience, it seems likely they will be more complex and will involve organic species not previously used in commercial products. The expanding use of nuclear power for the pro- duction of energy and the use of radioactive materials in industrial processing pose other problems. The disposal of nuclear wastes, as use of nuclear power expands, is a growing problem. Recent proposals in- clude disposal of encapsulated nuclear wastes in the sediments of the deep seabed. Oceanborne transport of petroleum in increasing quantities holds greater potential for acute pollution from discharges of oily ballast waters and tank wash- ings and from oil spills caused by vessel accidents. Added to these are the chronic cumulative effects of smaller operational and accidental discharges to the marine environment. In 1960, the United States im- ported about 1.7 million barrels of oil each day. The amount doubled by 1970, and doubled again by 1976 to 7.3 million barrels of oil per day. Projec- tions for 1985 indicate the United States will receive an average of 12 million barrels of foreign oil per day. The marine transportation industry is shifting to fewer, but larger, carriers. Recent estimates indi- cate that ship casualties account for about 5 percent of the oceans' petroleum hydrocarbons. This could VI-1 increase as greater quantities of petroleum are trans- ported; however, with fewer (although larger) ships, the probability of an accident decreases and the net results are uncertain. If there were a supertanker casualty, the potential spill could be of major pro- portions and affect both living and nonliving marine resources, as well as the recreational use of coastal areas. All pollutants are not chemical or particulate in nature. Energy conversion is exothermic, and large amounts of heat energy are transferred to the aquatic environment in the production of electrical energy and in other industrial activities. Coastal regions at- tract industries that require large quantities of cooling water. If discharged into confined estuaries, the waste heat can be considered a pollutant to the extent that it adversely affects the productivity of the marine environment. In some instances, thermal enrichment can prove beneficial by increasing marine pro- ductivity. The rate of ocean pollution has increased with population density and societal affluence, which were not accompanied by recognition of pollution as a priority issue. The increasing production of energy and conversion of materials to consumer goods are the basic causes of pollution. Thus, the industrially developed nations of the world, generally in the Northern Hemisphere, are the prime sources of en- vironmental pollution. In the past, man turned to the oceans for waste disposal because costs of land and transportation were rising and it was more economi- cal to dump wastes in the ocean, particularly the wastes of coastal cities and industrial centers; be- cause dumping in the ocean involved fewer political conflicts; and because people believed the ocean had an infinite capacity to absorb such wastes. With our better understanding of the ocean's physical, chemi- cal, and biological processes — its interactions with the atmosphere and adjoining lands, and its mechan- isms of mixing, transport, and exchange — we now know that the ocean cannot accept unlimited pollu- tants without affecting our well-being (fig. 6-1). Fertilizers Weathering • Dissolved • Particulate - Inorganic - Organic Sewer Outfalls Industrial - Dissolved - Particulate Municipal - Dissolved - Particulate Ocean Dumping • Excavation • Dredged Material • Sewage Sludge • Industrial Wastes - Solid - Liquid Figure 6—1. — Chemical enrichment of the ocean VI-2 The Ocean as a System The processes of biological production and the physical/chemical factors are so intimately coupled that perturbations in either the biotic or abiotic sub- systems can significantly affect the ocean environ- ment and living ocean resources. One of the most dramatic examples of the linkages among the various components that make up the ocean environment is the sporadic occurrence of the El Nino phenome- non. When currents of warm water of lower salinity move from the North Pacific along the west coast to South America displacing the normally cold, rich, upwelled water from the ocean depths, the produc- tivity of the ocean system is altered. In 1972, the El Nino phenomenon, in combination with overfishing, had devastating effects on the anchoveta stock and reduced the catch significantly. The economic im- pacts of the failure of this fishery were felt through- out the world. Fish meal production, a major source of chicken and livestock feed, was curtailed, and meat prices increased significantly. 2 ' 3 Secondary impacts were further felt in the soybean market as the demand for feed protein was transferred to the agricultural sector. Marine organisms can accumulate certain chemi- cals in amounts far exceeding their concentrations in seawater. Organisms may assimilate a chemical directly from seawater or by way of the food chain. Levels of bioaccumulation of certain chemicals tend to magnify in organisms at the higher trophic levels in the food web. Since we are at the highest trophic level, the potential exists for direct adverse impacts to human health in addition to the indirect effects we experience as a result of the continuous altera- tion of the ocean. Bioaccumulation, however, differs for each chemi- cal and each organism and can vary within a species from one habitat to another. The loss of one link in the food chain resulting from pollution toxicity can cause the collapse of an entire stock of fish that de- pends on a lost species as a source of food. Although environmental research has been exten- sive during the past decade, relatively little is known about the marine processes and functions of the ocean as an integral system. The marine ecosystem, however, is resilient. It can tolerate chronic levels of pollution for extended periods of time before cumulative harm results. Unfortunately, this resili- ency permits chronic pollution to continue for ex- tended periods of time without detection, and it may be decades before the environmental impact becomes apparent. Significant damage may have already oc- curred, and effective future control of the pollutant might be extremely difficult or cause serious eco- nomic dislocations. On the other hand, acute doses of toxic material can interfere with life processes sufficiently to cause a catastrophic impact on the sys- tem as a whole. One of the underlying problems of dealing effec- tively with ocean protection is the lack of understand- ing of the natural environmental processes against which the effect of civilization must be measured. If the ocean is to be managed for "use in perpetuity," more fundamental knowledge must be developed concerning the natural processes, currents, fluxes, transport phenomena, exchange rates, assimilation rates, species tolerance, and population behavior and dynamics. Similarly, the physical and chemical behavior and toxicity of the potential pollutants themselves must be evaluated. Finally, monitoring systems are re- quired to assess on a time-series basis the condition of the marine system and the levels of pollution and compare them with baseline information. 4 Warnings of pending disaster have been made by Cousteau, Heyerdahl, Piccard, and many other popu- lar lecturers. 5 ' 8 Local accounts of environmental damage have added to the concern over the health of the ocean. In some instances the concerns have arisen because of the effect of long-term environ- mental insults, as in the New York Bight. 78 In other cases, local concern is voiced over one-time, some- times spectacular, pollution events such as the breakup of the Amoco Cadiz. The limits to our use of the ocean may well be imposed by our ability to maintain the sea as a functioning system. The principles of "multiple use" and "sustained yield," which have become the basic tenets of natural resource management of terrestrial ecosystems, must also be adopted as the guiding principles for management of marine ecosystems. Management of the ocean is predicated on three fundamental requirements: (1) adequate knowledge of the natural properties; (2) an understanding of the 2 P. Hughes, "El Nino — Science Seeks to Fathom a Strange Cli- matic Problem." NO A A Magazine January 1975. 3 J. Kolhonen. "Impact of El Nino on World Fish Meal Trade," unpublished manuscript. NOAA National Marine Fish- eries Service, Economic and Marketing Division, Washington, D.C., 1974. 4 National Academy of Sciences. Assessing Potential Ocean Pollutants. A report by the Study Panel on Assessing Potential Ocean Pollutants to the Ocean Affairs Board, Commission on Natural Resources, National Research Council. 5 Jacques Cousteau. "The Perils and Potentials of a Watery Planet," in Oceans: Our Continuing Frontier. H. Menard and J. Scheiber (eds.). San Diego, Calif., Publisher's Inc., 1976. Thor Heyerdahl. "How to Kill an Ocean," in Oceans: Our Continuing Frontier. H. Menard and J. Scheiber (eds.). San Diego, Calif., Publisher's Inc., 1976. 7 U.S. Department of Commerce, NOAA. Marine Environ- mental Protection — 1976. Washington, D.C., Government Print- ing Office, 1977. 8 Pollution Wrecking Inshore Fishery, New York Times, Sep- tember 8, 1977. VI-3 behavior, fate, and effects of potential pollutants; and (3) a system of control and regulation of the uses made of the sea and the cumulative adverse impacts that may result from such uses. The first two require- ments are within the domain of the basic and applied sciences. The third is the purview of the Federal, State, and local governments within the United States, and of the international community beyond national sovereignty. Although regulation and control of activities that can harm the ocean environment is a function of public law, regulatory programs depend on science to detect and measure pollutants and their harmful effects, to determine levels of concentration, and to establish acceptable levels of release. Important parameters that must be known about a pollutant to implement an effective regulatory system include: 9 • rates of release into the environment, • lifetimes in the environment (or residence times in contact with biological systems), • concentration factors for various parts of the sys- tem (e.g., surface fills or estuaries) or in organisms (bioaccumulation), and • levels of toxicity. Therefore, a balance must be maintained between substantive knowledge and legal process in order to achieve optimal use of the resources, maintain eco- nomic growth, and protect the ocean environment. The world ocean has two major zones: the coastal ocean and the open ocean. The latter comprises the bulk of oceanic space found beyond the continental slopes. With few exceptions, such as some productive equatorial waters and recently discovered areas of high productivity near the Galapagos Islands, the open-ocean areas are characterized by much lower productivity. Based on present knowledge, there is little expectation that major developments and exten- sive use will be made of the vast portion of the open ocean. Deep-seabed mining, for instance, would oc- cupy but a small proportion of open-ocean space when fully developed. The coastal ocean, on the other hand, constitutes only 10 percent of the total oceanic area and includes estuaries, lagoons, inshore waters, many marginal seas, and waters over the continental shelves and slopes. These waters are highly productive and repre- sent the areas of greatest biological activity. Primary production of organic matter in the coastal ocean forms the basis for food chains supporting fish, birds, and marine mammals. Within the coastal ocean are isolated areas of exceptionally productive waters — areas of upwell- ing — where a combination of strong offshore winds and prevailing boundary currents bring nutrient-rich deep water to the surface and move the warm coastal waters seaward. Here, the primary productivity is exceptionally high and leads to large fish stocks. The region between the littoral zone — the area just off the coastline — and the beginning of the open ocean over the continetal slope supports the most produc- tive fisheries. The coastal ocean is affected directly by rivers, terrestrial runoff and drainage, and by domestic and industrial wastes. The coastal region contains most of the Nation's major metropolitan areas and gener- ally continues to increase in population and expand in industrial activity (see Chapter IV). These trends indicate a potential for increased impacts on the environment of the coastal ocean. In addition, devel- opment of oil and gas, mining of sand and gravel and other mineral commodities on the continental shelf, installation of shoreside and offshore power gener- ating stations, siting of other water-oriented industrial activities, an increase in tanker traffic, and the expan- sion of oceanborne trade overall will continue to affect the environment in the coastal region unless carefully controlled. The marine environment of the coastal ocean is of particular concern because: ( 1 ) it receives the great- est infusion of pollutants from the coastal and inland regions, (2) it is economically the most important oceanic region for the United States, and (3) to a large extent, the Federal Government and the States exert control over the activities and uses of the ter- ritorial seas. While pollution transport across inter- national borders with Canada and Mexico and from more distant countries may occur, it is largely domes- tic activities that affect the coastal waters. The Oceans and Climate Within the world community, as well as within the United States, there is a growing awareness that our economic and social well-being are profoundly in- fluenced by climatic variations. To some degree, energy requirements, food production, freshwater supplies, transportation, and health are all climate- sensitive, and major climate changes would affect the • National Academy of Sciences, op. cit. note 4, p. 4. biological environment and the economy. 1011 Con- cerns regarding climate do not center around the extremely long-term shifts such as the coming of an "ice age," but rather focus on persistent changes in 10 National Academy of Sciences — National Research Council, U.S. Committee for the Global Atmospheric Research Program. Understanding Climate Change — A Program for Action, Wash- ington D.C., 1975, p. 1. 11 Federal Coordinating Council for Science, Engineering, and Technology, Committee on Atmosphere and Oceans. A United States Climate Program Plan. Washington, D.C., Government Printing Office, 1977. VI-4 present-day temperatures and rainfall patterns and the resulting impacts on food production. The oceans exert a powerful influence on the Earth's climate, the productivity of the seas, and the changes that occur there, both naturally and as a result of our activities. Oceanic waters are vital to the Earth's climate systems. They absorb, store, and redistribute most of the solar radiation absorbed by the Earth's surface. This heat capacity regulates cyclical global climate shifts over time. With the significant and sometimes catastrophic effect of climate on human living conditions, the need for anticipating or predicting climatic changes becomes more critical. This capability requires a better understanding of the natural interactions among the oceans, atmosphere, and climate and of the effects on climate of both oceanic and atmos- pheric pollution. Development of a predictive capability requires time-series data on heat storage and stability of the oceans; exchange between the atmosphere and oceans; oceanic heating patterns and temporary and long-term anomalies, mixing depth, rate and space variations; poleward air movement and release of heat; wind stress and surface roughness; and circu- lating patterns. How pollution affects these factors that determine the climatic patterns is little under- stood. There has been concern recently about the pos- sible effects of the increasing level of atmospheric carbon dioxide and the corresponding capacity of the ocean to absorb greater amounts in its role as a carbon dioxide sink. Although we now understand the fundamentals of heat islands, albedo, and green- house effects, we have barely touched the surface of understanding the climatic effects of our own activ- ities. Today, atmospheric and climatic information is obtained from only 22 percent of the Earth's sur- face and only 2 percent of this is gathered over the 71 percent of the Earth's surface covered by the ocean. 12 No single nation has the resources or capa- bility to collect all the necessary information. The problem belongs to all nations and therefore the solution will hinge on organizing cooperative efforts at both national and international levels. Ocean Pollution Research and Monitoring At least 8 departments, 9 independent agencies, and 37 agencies or subagencies administer Federal ocean research programs. These activities are carried on without coordinated national objectives. Each agency pursues its own objectives and interests based upon individual legislative mandates. There is some coordination and knowledge among agencies regarding other agency programs; however, in large part this depends on the individuals managing the various programs. Indeed, in some instances, even within a single agency one office is often unaware, in a meaningful sense, of another's efforts. Informa- tion gaps, duplicative efforts, and low-level account- ability seem to characterize the Federal effort in ocean pollution research and monitoring. Environmental "research" is distinguished from environmental "monitoring." The gray area between the two, however, is broad indeed. The objective of monitoring is to trace, gage, measure, or observe phenomena over time. The detail and kind of in- formation sought determines the monitoring tech- niques and design to be used, e.g., remote sensing to track oils spills or sophisticated bioassays to trace a heavy metal through the food web. Research, on the other hand, is based on experimentation and investigation and is generally intended to gain knowl- edge about a process, form, fate, or effect of an agent in the environment. Information from carefully designed and well- executed monitoring programs can provide a basis for managing those materials that are capable of ad- versely affecting the marine environment. Monitor- ing is necessary for an effective regulatory program. 13 "Baseline studies" are a special form of monitoring that is conducted prior to an anticipated project to provide information on the natural, "unperturbed" environment. Baseline information provides a means to measure and compare the resulting impacts through a continuous monitoring program. Monitoring by the Federal agencies is generally done on a specific site for a specific purpose, yet time-series data on processes and pathways can be used as an indicator of potential problems that may appear in other sites. A national air and water moni- toring system has been established as a result of the air and water pollution control legislation that has developed since the 1960s. A comparable system does not yet exist in the case of the marine environ- ment. Large-scale monitoring is extremely costly, and there are practical limitations on the extent to which the ocean can be effectively monitored. There- fore, it is imperative that the Federal agencies with monitoring programs coordinate their activities and share facilities and information. The international community is slowly recognizing the need for a global program of monitoring selected Ibid. "E. D. Goldberg. The Health of the Oceans. New York: UNESCO Press, 1976, p. 172. VI-5 pollutants in the open ocean. 1415 Further concern is being shown for the chronic and slowly rising levels of contaminants in the open ocean and the potential irreversible damage to the marine environment if the worldwide trend continues. An effective global moni- toring program will depend upon coordinated na- tional efforts, standardization of procedures, and free information and data exchange. This goal has not yet been achieved in the U.S. environmental pro- gram. International Activities During the past two decades, the level of attention directed toward problems of international marine pollution has risen sharply. In June 1969, eight North Sea countries signed the Bonn Agreement of 1969, which required member states to promptly inform other member states when they became "aware of a casualty or the presence of oil slicks in the North Sea area likely to pose a serious threat to the coast or related interests of any other Con- tracting Party." In June 1970, Canada enacted the Arctic Waters Pollution Prevention Act, which estab- lished controls over the depositing of wastes into the zone of arctic waters that extend 100 nautical miles north of Canada's shore. The Canadians have not claimed sovereignty over this area, but only the right to regulate pollution. 10 In October 1971, 11 governments established a regional convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft, known as the Oslo Conven- tion of 1971. It pledges the contracting states "to take all possible steps to prevent pollution of the sea by substances that are liable to create hazards to human health, to harm living resources and marine life, to damage amenities or to interfere with other legitimate uses of the sea." 17 In May 1972, the United States and USSR signed a bilateral agreement that established a Soviet- American Joint Committee on Cooperation in the Field of Environmental Protection. 18 In a related move, the United States and USSR joined 30 other nations in a worldwide program related to studies of ocean pollution that have been conducted during the 1970s under the auspices of the International Decade of Ocean Exploration (IDOE). 19 The following organizations within the United Nations system have responsibilities related to vari- ous aspects of marine pollution: Engineering Committee on Oceanic Re- sources (ECOR), " U.S. Department of Commerce, National Bureau of Stand- ards. Marine Pollution Monitoring (Petroleum). Proceedings of Symposium Sponsored by IOC-UNESCO, WMO, and the De- partment of Commerce, NBS Publ. 409. Washington, D.C., Government Printing Office, 1974. u Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP). Reports and Studies No. 1. Report of the Seventh Session. London. 1975. 16 U.S. Congress, Senate, Committee on Commerce. Effects of Activities on the Marine Environment. 94th Cong. 2d sess. Washington, D.C., Government Printing Office, 1975, p. 31. "Ibid., p. 32. ls Ibid., p. 33. "Ibid., p. 35. Food and Agriculture Organization (FAO), Inter-Governmental Maritime Consultative Organization (IMCO) and its Marine Environmental Protection Committee (MEPC), Intergovernmental Oceanographic Com- mission (IOC), International Atomic Energy Agency (IAEA), International Bank for Reconstruction and Development, International Labor Organization (ILO), Organization for Economic Cooperation and Development (OECD), UN Development Program (UNDP), UN Educational, Scientific and Cultural Organization (UNESCO), UN Environmental Program (UNEP), UN General Assembly and the Economic and Social Council, UN Institute for Training and Research (UNITAR), UN Joint Group of Experts on the Sci- entific Aspects of Marine Pollution (GESAMP), UN Scientific Committee on the Effects of Atomic Radiation, World Health Organization (WHO), and World Meteorological Organization (WMO) Five regional and international agreements have been concluded that relate to marine pollution by radioactive materials. Two now in force prohibit the dumping of high-level radioactive waste at sea and establish guidelines for the disposal of other types of radioactive material. They name the International Atomic Energy Agency (IAEA) as the agency re- sponsible for defining high-level waste and develop- ing recommendations for the at-sea disposal of other radioactive material. The IAEA's recommendations are followed by the OECD's Nuclear Energy Agency, which supervises the only active at-sea disposal pro- gram for radioactive wastes. The International Convention for the Prevention of Pollution of the Sea by Oil, 1954, as amended, is the only convention now in force that is directly related to the prevention of marine pollution from shipping. Amendments to the Convention, adopted in 1969, entered into force on January 20, 1978. VI-6 They establish certain conditions for the discharge of oil and oily mixtures. They also require that pro- vision be made in ports for reception facilities for residues and oily wastes from ships and that an oil record book be kept during any transfer of oil or oil-mixture. Competent authorities of a contracting state are authorized to board a vessel for the purpose of inspecting the oil record book, but under the convention, enforcement remains with the flag state. The Torrey Canyon disaster prompted two 1969 Brussels conventions dealing entirely with oil pollu- tion from ships. First, the International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casualties (known as the Interven- tion Convention of 1969) was entered into force May 6, 1975. This convention allows signatory states to resort to self-help in emergencies to protect their own interests from oil pollution damage. This is the first international convention to apply the principle of self-help on the high seas for the purpose of pro- tecting the marine environment. The second Brussels convention dealt with civil liability. The International Convention on Civil Liability for Ocean Pollution Damage (known as the Liability Convention of 1969, entered into force on June 19, 1975) establishes rules and procedures for determining liability and providing compensation for damage caused by oil pollution from ships. This convention is primarily remedial rather than preventive, applying only to oil pollution after it causes damage to a limited area of the ocean. 20 The Convention on Marine Pollution by Dumping of Wastes and Other Matters of 1972 (entered into force on August 30, 1975) has responsibility for ad- ministration centered in the Inter-Governmental Mari- time Consultative Organization. The convention is aimed at achieving uniformity in regulations con- trolling the disposal of waste at sea among the sig- natory nations. The regulation of ocean dumping within the terms of the convention applies to about 10 percent of the pollutants entering the ocean. As small as this fraction is, it is a positive step toward the goal of protecting the global marine resource. 21 The International Convention for the Prevention of Pollution from Ships of 1973 was adopted in November 1973, and reduced further the maximum permissible quantity of oil that may be discharged by new oil tankers. The 1973 Convention (1973 MARPOV) will supercede the 1954 International Convention for the Prevention of Pollution of the Sea by Oil, as amended, 1 year after ratification by 15 countries representing half of the world's mer- chant shipping. It contains provisions aimed at elim- inating the intentional pollution of the marine environment by harmful substances and minimizing the accidental discharge of such substances. This 20 Ibid., p. 39. 21 Ibid., p. 41. Convention will require that ships be designed and equipped for pollution-free operations and that ade- quate reception facilities be provided in ports for ship-generated wastes. The flag state is required to prosecute all violations of its vessels wherever they occur. In addition, the port state is authorized to perform inspections of any vessel entering its port to ascertain that the condition of the ship corre- sponds with the particulars of the international oil pollution prevention certificate. Perhaps the most dramatic example- of interna- tional cooperation on behalf of marine environmental protection is the successful conclusion of the Inter- national Conference on Tanker Safety and Pollution Prevention (1978 TSPP) held in London in Febru- ary 1978. Precipitated by the Presidential Initiative of March 17, 1977, the international community, under the aegis of IMCO, has agreed to an Inter- national Plenipotentiary Conference for the purpose of developing acceptable international standards in response to the U.S. initiatives. This conference suc- cessfully adopted a composite package of vessel design and equipment requirements in the form of Protocols to the 1973 Marine Pollution Convention and to the 1974 Safety of Life at Sea Convention. Their positions and the results of the Conference will have worldwide impact. In addition to the international conventions and agreements that are now in force, the Third United Nations Conference on the Law of the Sea (UN- CLOS), which has been underway since 1973, is seeking to arrive at a consensus on treaty provisions to protect the marine environment. The Informal Composite Negotiating Text of 1977 contains the following provisions: 22 • establishes the unqualified general rule that "States have the obligation to protect and preserve the marine environment;" • declares a positive legal duty not to cause damage by pollution to other states and their environment; • establishes a new duty to give notice of imminent danger by pollution to other states and organi- zations and requires that states maintain surveil- lance over activities they engage in or permit; • creates a duty to monitor the marine environment generally for pollution, and establishes an environ- mental assessment procedure patterned after the environmental impact statement procedures of the United States; • recognizes land-based sources of pollution as be- ing significant sources of marine pollution and adds them to the international agenda; • establishes an "International Seabed Authority" to administer seabed mining under the treaty and 22 U.S. Department of State, Office of Law of the Sea Negotia- tions. Third United Nations Conference on the Law of the Sea, Informal Composite Negotiating Text. Washington, D.C., July 1977, Part XII. VI-7 to develop environmental standards to govern the operations, and would thus avoid the possibility of "flags of convenience"; • establishes, in effect, a new legal rule that tech- nical international rules and standards on protect- ing the marine environment will become binding on all states once they are generally accepted; • establishes the principle that port states may prosecute foreign flag ships for discharges in vio- lation of applicable international standards, re- gardless of where the discharge occurred; • expands the coastal state powers to enforce anti- pollution laws within the 200-mile zone consistent with International Conventions; and • provides legal protection of arrested vessels by requiring prompt release of vessels, reasonable bond, avoidance of danger to the vessel, nondis- crimination, a "statute of limitations on prosecu- tions," avoidance of multiple prosecutions for the same offense in different jurisdictions, "recognized rights of the accused," monetary penalties only, notice to the flag state and "any other state con- cerned" of measures being taken, and liability of the state for enforcement measures which "were unlawful or exceeded those reasonably required in the light of available information." In an attempt to address the significant global en- vironmental problems the United Nations held a Conference on the Human Environment in June 1972 in Stockholm. A product of the Stockholm Conference was the "Declaration on the Human En- vironment," which included recommendations, some of which address specifically the problems of marine pollution. These included: (1) that governments "accept and implement controls on marine pollu- tion"; (2) that governments support marine research, particularly the Global Investigation of Pollution in the Marine Environment (GIMPE) and the Inte- grated Global Ocean Station System (IGOSS); (3) that the United Nations-sponsored Joint Group of Experts on the Scientific Aspects of Marine Pollu- tion "evaluate the toxicity of potential marine pollu- tants and their sources and pathways in the marine environment"; and (4) that the governments support the 1973 Law of the Sea and the IMCO Marine Pol- lution Conferences. Among the achievements of the Stockholm conference was the creation of the UN Environmental Program (UNEP), which was estab- lished to initiate and coordinate environmental projects undertaken by the UN agencies, drawing where necessary on the "Environment Fund" (which is supported by voluntary contributions from gov- ernments) to help finance international environ- mental activities. 23 A major component of the UNEP program focuses on the marine environment, and it has initiated a number of regional conventions to protect heavily polluted marine seas. The most ad- vanced of these is the Convention for the Protection of the Mediterranean Sea Against Pollution, which was brought into force in February 1978, 2 years after it was signed at Barcelona, Spain. The solution to worldwide ocean pollution prob- lems must come from cooperative action among the maritime and coastal nations. Uniformly stringent global standards are a goal of the future. Imple- mentation of the standards, however, will remain the responsibility of the sovereign states. It is unlikely that enforcement authority will be delegated to an international organization in the foreseeable future. Some states that feel while uniformity among nations is a desirable goal, international agreements on pollu- tion control and environmental standards tend to seek the level of the lowest common denominator. The conventions administered through the Inter- Governmental Maritime Consultative Organization are cases in point. The effectiveness of the pollution convention, for example, has been criticized because the standards of the international agreement are less stringent than the U.S. standards. 21 More recently, IMCO has formed a Marine Environment Protection Committee, which has improved its effectiveness. Although international agreements are, by necessity, compromise or consensus settlements, they are often one of the most effective means of protecting the world's environment. Recent examples of effective international agreements regarding marine environ- mental protection are the 1973 International Con- vention for the Prevention of Pollution from Ships (1973 MARPOL), the 1974 International Conven- tion for the Safety of Life at Sea (1974 SOLAS), and the Protocols to both of these Conventions resulting from the 1973 International Conference on Tanker Safety and Pollution Prevention. These agreements were developed under the auspices of IMCO. Governmental Efforts to Control or Mitigate Marine Pollution The United States was among the first nations to recognize the potential danger of marine pollution. Congress acted early using the commerce clause of the Constitution to regulate and protect the public waters. Recognizing that the growth in urban areas during the 1870s and 1880s produced noticeable pollution in the harbors of many northeastern cities, the Congress enacted the first pollution statute, the Act of June 29, 1888, for the purpose of barring "Ibid., p. 40. ■'' Richard Frank. "Environmental Consequences of Deep-Sea Mining," in Law of the Sea: Conference Outcomes and Problems of Implementation, Edward Miles and John K. Gamble, Jr. (eds.). Cambridge, Mass., Bollinger Publishing Co., 1977, 452 p. VI-8 discharges in New York City's harbors. 25 An ex- tended version of the Act of 1888, the River and Harbor Act of 1899 (33 U.S.C. 401 et seq. (1964)), popularly called the Refuse Act, outlawed the dump- ing of refuse material into any navigable water or its tributary. This Refuse Act served as one of the primary water quality statutes protecting coastal waters from 1899 until 1972. It was based on the theory of "navigational servitude," which requires that waters be kept free of debris that would impede navigation. Prevention of visible pollution and im- pediments to navigation were the primary concerns of Federal law until the late 1940s when the first actual water quality statute aimed at treatment was enacted. Federal Marine Pollution Control Statutes Oil Pollution Act of 1924 (Public Law 68-238)— 33 U.S.C. 431 et seq. (Supp. 1970). This Act pro- hibited oil disposal in navigable waters except in emergencies or unavoidable accidents, or by regula- tion. Authority was vested in the Secretary of the Army. (Act replaced by Sec. II Water Quality Im- provement Act of 1970); Water Pollution Control Act of 1948 (Public Law 80-845)— 33 U.S.C. 1151 et seq. This Act was a 5-year authorization and was the precursor of the present body of laws pertaining to water pollution. It established a technical assistance program to States for the development of water quality control facil- ities; Federal Water Pollution Control Act of 1956, as amended in 1961, 1965, 1966, 1970, 1972, and 1977 (Public Law 84-660)— 33 U.S.C. 1151 et seq. This Act serves as the basis for our national water cleanup initiative. It provides State and interstate water pollution control agencies with construction and other grants, enforcement procedures, and inter- state waters and research programs. It authorizes a 5-year grant program to municipalities for construc- tion of sewage treatment plant facilities. 28 • The 1961 amendments increased funding levels; authorized seven field laboratory and research facilities; directed studies, research, and develop- ment on the quality of the Great Lakes; and ex- tended Federal enforcement authority to navigable waters. • The 1965 amendment (The Water Quality Act of 1965 (Public Law 89-234), (33 U.S.C. 1151 et seq.)) provided for Federal administrative reor- ganization and further grants for research, devel- opment, and construction of sewage treatment works. It created the Federal Water Pollution Control Administration (FWPCA) in the Depart- ment of Health, Education, and Welfare. It insti- tuted the program of mandatory water quality for interstate waters. 2,1 U.S. Congress, Senate, Committee on Commerce, Science, and Transportation and the National Ocean Policy Study. Con- gress and the Oceans: Marine Affairs in the 94th Congress. 95th Cong., 1st sess. Washington, D.C., Government Printing Office, 1977. 20 33 U.S.C. 1251(a), (P.L. 92-500, Sec. 101). • Reorganization Plan No. 2 of 1966 transferred the FWPCA to the Secretary of the Interior. The Plan provided for an Assistant Secretary of the Interior to assist the Secretary in carrying out the trans- ferred functions. • The 1966 amendments (The Clean Water Resto- ration Act of 1966), (33 U.S.C. 431-437, 466a, 466-1, to 466e, 466q, 466j, 4661-466n) extended the definition of coverage of the Act to include specifically rivers, coastal waters, sounds, estu- aries, bays, and harbors. Massive Federal support was authorized for grants for the construction of sewage treatment facilities. The 1966 amendments also authorized a 3-year study of the pollution of the Nation's estuary system. • Title I of Public Law 91-224 (33 U.S.C. 1151, 1152, 1155-1156, 1168, 1160-1175), the Water Quality Improvement Act of 1970, further amended the FWPCA Act. It repealed the Oil Pollution Act of 1924 and renamed the FWPCA The Federal Water Quality Administration. It provided for better control of oil pollution, con- trol of sludge from vessels, identification of haz- ardous substances, grants for acid mine drainage control demonstration projects, training funds, and additional funding for national estuary studies. • Reorganization Plan No. 3 of 1970 combined several agencies dealing with water pollution con- trol within the Environmental Protection Agency in the Water Quality Office. Today water pro- grams are combined with hazardous material con- trols to form the Office of Water and Hazardous Materials. • During the 92d Congress, awareness of the prob- lems of water quality continued to heighten, liti- gation increased, and the permit program insti- tuted under the Refuse Act of 1899 essentially broke down. Finally, the 92d Congress enacted the Federal Water Pollution Control Act Amend- ments of 1972 (FWPCA), which completely re- vised water pollution legislation. It based water pollution control primarily on effluent limitations instead of on water quality standards. It empha- sized comprehensive planning and addressed for the first time nonpoint source pollution. The ulti- mate goal as stated in the Act was "to restore and VI-9 maintain the chemical, physical, and biological integrity of the Nation's waters." Implementation of the Federal Water Pollution Control Act has been plagued with numerous problems for Federal, State, and local administrators, the courts, and the Congress. 27,2S Among the prob- lems encountered were restrictions on funds avail- able (50 percent of the originally authorized monies were impounded during the fiscal years 1973, 1974, and 1975), difficulties over the allocation of funds to the States, problems of individual States and munici- pal authorities in establishing charges for waste treat- ment, and debates that arose with relation to the application of FWPCA where States were discharg- ing partially treated sewage directly into ocean waters. The rationale for coastal cities to use ocean outfalls was that the bases for treatment and prac- tices were developed relative to the protection of inland waste waters and that ocean waters had dif- ferent absorption characteristics. 29 The Clean Water Act of 1977 . This Act amended FWPCA of 1972. It extended the deadlines for achieving best practical and best available treat- ment technology. The deadline for control of dis- charges of toxic substances into waterways was ex- tended to 1984. It provided for increased funding of construction grants for sewage treatment plants. The Act amended Section 404 permitting procedures and exempted Federally funded and constructed projects in navigable waters. The pollution control zone of contiguous waters was extended to 200 miles under prescribed circumstances. Oil Pollution Act of 1961—33 U.S.C. 1001- 1015. This act provided for regulation of vessel dis- charge of oil or oily mixtures. It also established construction standards for tankers and provided en- forcement authority and penalties for violations. Authority was vested with the Secretary of Trans- portation. Estuarine Areas Act — 16 U.S.C. 1221-26. This Act was intended to provide a means for considering the need to protect, conserve, and restore estuaries while maintaining a balance between protection and development. It directed the Secretary of the Interior to make an estuarine study and inventory. National Environmental Policy Act (NEPA) — 42 U.S.C. 4321-4347. NEPA is a general purpose en- vironmental statute which requires that environ- mental impacts be assessed and considered for all Federal activities that "significantly affect the quality of the human environment." It is probably the most litigated environmental statute enacted thus far. 30 With its requirements for environmental impact statements for major Federal actions significantly affecting the environment, the clear intent of NEPA is to force the involved agency to assess impacts of its actions before committing itself to them. Through the EIS process, NEPA also allows for other agency and general public input to decision making, because the EIS is one of the documents used by the decision maker. The Marine Protection, Research, and Sanctuaries Act of 1972 (Public Law 92-532)— 33 U.S.C. 1401 et seq. This statute is popularly known as the Ocean Dumping Act. Title I provides for EPA regulation of dumping activities, Title II for initiating a compre- hensive research program by the Secretary of Com- merce in coordination with the Administrator of the Environmental Protection Agency and the Secretary of the department in which the Coast Guard is op- erating, and Title III for designation of marine sanc- tuaries by the Secretary of Commerce. (For a de- tailed discussion see section on Ocean Dumping which follows.) The Coastal Zone Management Act — 16 U.S.C. 1451-1464. This Act is aimed at ensuring effective management, beneficial use, protection, and develop- ment of the coastal zone. It gives authority to the Secretary of Commerce to provide planning and ad- ministrative grants to encourage State and local gov- ernments to establish coastal management programs. (For a detailed discussion see Chapter IV.) Ports and Waterways Safety Act of 1972 (Public Law 92-340)— 33 U.S.C. 1221-1227. The Act, in order to prevent the damage or destruction of vessels or structures on or in the navigable waters of the United States or area immediately adjacent to those waters, and to protect these waters and resources therein from environmental harm resulting from vessel or structure damage, destruction, or loss, authorized the USCG to establish vessel traffic services applicable to all vessels, in order to prevent damage or destruction of vessels or structures on or in navigable waters. The emphasis is placed on ports, harbors, or other waters that are subject to con- gested vessel traffic or are determined to be espe- cially hazardous. Regarding vessels carrying certain cargoes in bulk, Title II authorizes regulations con- cerning vessel design, construction, and equipment for prevention and mitigation of damage to the marine environment. Intervention on the High Seas Act (Public Law 93^248)— 33 U.S.C. 1371-87 (Supp. IV 1974). This Act authorizes the Coast Guard (on the high seas) to prevent, mitigate, or eliminate harmful effects of an : ' U.S. Congress, op. cit. note 25. 88 U.S. Comptroller General. Implementing the National Water Pollution Control Permit Program: Progress and Problems. Washington, D.C., General Accounting Office, 1976, 187 pp. = J Ibid., p. 6. ™ Environmental Law Institute. The Evolution of National Wildlife Law. Prepared for the Council on Environmental Qual- ity. Washington, D.C., 1977, 485 pp. VI-10 oil spill when it poses a threat to the coastline or related interests of the United States. The Deepwater Port Act of 1974 (Public Law 93- 627)— 33 U.S.C. 1501-1524. One purpose of the Deepwater Port Act of 1974 is to "authorize and regulate the location, ownership, construction, and operation of deepwater ports in waters beyond the territorial limits of the United States." In many ways it is a model of the "newer" approach to the siting — particularly the licensing component — of energy fa- cilities. Some key features are: • Coordination. The law designates the Department of Transportation as the "lead agency" for licens- ing deepwater ports outside of the 3-mile zone. In addition, it clearly lists the jurisdictions and re- sponsibilities of the various Federal agencies involved and establishes specific procedures and deadlines for coordinating their actions. The stat- ute also provides for an unusual but clearcut way of coordinating State and Federal viewpoints: no Federal license shall be issued without the ap- proval of the governor of each adjacent coastal State. • Performance standards. The law sets forth the conditions that must be met before the Secretary of Transportation may issue a license (it must be in the national interest, meet environmental cri- teria, meet antitrust requirements, etc.) and also directs the Secretary to prepare environmental review criteria to be used in evaluating applica- tions. • Public participation. The Act explicitly provides for public access to information about the applica- tions, for public hearings, and for judicial review and citizen civil action. Ocean Dumping During the 1950s and 1960s, ocean dumping reached proportions that caused considerable pub- lic concern. At that time, what limited regulation existed was carried out under the authority of the New York Harbor Act of 1888, which gave the Secretary of the Army power to prohibit disposal of waste except for that flowing from streets and sewers into the harbors of New York, Hampton Roads, and Baltimore. Also in effect was the Refuse Act of 1899, which prohibited dumping in navigable waters where it would impede navigation. The increasing use of the ocean for waste disposal during the past two decades is related to increasing coastal land values, growing population, industrial growth, and the trend toward secondary and tertiary sewage treatment that result in large quantities of sludge and toxic residues. The ocean was mistakingly viewed as a panacea — a "safe" disposal site totally capable of diluting and absorbing harmful materials. In 1970, the problem of indiscriminate waste dis- posal in the marine environment was formally recog- nized as a growing problem. In that year the Council on Environmental Quality (CEQ) reported to the President on environmental problems associated with ocean dumping. 31 The report recommended a comprehensive policy on ocean disposal that would regulate dumping and prohibit disposal of certain materials harmful to the marine ecosystem. The report included an inventory of dumpsites, types of environmental effects, govern- mental jurisdictions, and related international as- pects. CEQ specifically addressed the disposal of polluted dredged materials, sewage sludge, and indus- 31 U. S. Council on Environmental Quality. Ocean Dumping: A National Policy. Washington, D.C., Government Printing Office, 1970, 45 pp. trial wastes. It recommended that dumping of pol- luted dredge material be phased out as adequate alternatives were developed. The report reempha- sized the Corps of Engineers' policy of dredging heavily polluted areas only when necessary and after weighing navigational benefits against potential envi- ronmental damages. CEQ recommended that: (1) dumping of undigested sewage sludge be stopped, (2) dumping of digested and other stabilized sludge be phased out, (3) no new sources be allowed, and (4) any necessary continued dumping in cases where substantial facilities and/or significant commitments existed be considered an interim measure until suit- able alternatives were developed and implemented. With regard to industrial wastes, CEQ recommended that dumping be stopped as soon as possible and that dumping of toxic wastes be stopped immediately unless there are no alternatives less harmful to man and the environment. CEQ and the increasing public awareness of the potential undesirable effects of waste disposal in the marine environment were largely responsible for the enactment of the Marine Protection, Research, and Sanctuaries Act of 1972 (MPRSA). Marine Protection, Research, and Sanctuaries Act of 1972 The MPRSA, Public Law 92-532 (33 U.S.C. 1401- 44, as amended, 16 U.S.C. 1431-34), contains three major titles. Title I sets out the primary regulatory framework for ocean dumping. It authorizes EPA to issue permits for ocean disposal of nondredged waste materials and the Corps of Engineers to issue permits for disposal of dredged material, and it pro- vides for penalties for violations of permit conditions. The U.S. Coast Guard is directed to enforce the provisions of MPRSA. Under this title, all ocean VI-11 dumping is prohibited except when authorized by per- mit, and disposal of certain types of wastes flatly prohibited (radiological, chemical, and biological warfare agents, and high-level radioactive wastes). Permits for other substances are granted if it can be determined that "such dumping will not unreason- ably degrade or endanger human health, welfare or amenities, or the marine environment, ecological sys- tems or economic potentialities. " The question of what constitutes unreasonable degradation is left to the judgment of EPA and the Corps. 32 Section 102 authorizes EPA to issue several classes of permits, including general, special, emergency, in- terim, research, and incineration at sea: general — small quantities having minimal adverse environ- mental effects; special — dumping materials which satisfy the criteria for a duration of 3 years; emer- gency — materials posing an unacceptable risk to human health and for which there is no disposal alternative; interim — may be issued up until April 23, 1978, for materials not in compliance with the cri- teria and only from facilities with a history of ocean dumping; research — dumping when scientific merit outweighs potential environmental hazards; sea in- cineration — such things as organic chloride wastes, wooden materials, derelict vessels. The Corps permits issued under Section 103 for dredged material disposal are subject to EPA criteria as well as an independent evaluation by the Corps. EPA and the Corps have jointly developed an imple- mentation manual for ecological evaluation of pro- posed disposal of dredged material into ocean waters. The International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter, which was adopted in November 1972, is closely alined philosophically with the intent of MPRSA. The Convention, fully effective in August 1975, aims to regulate dumping from vessels, aircraft, and manmade structures. It prohibits dumping of cer- tain persistent toxic materials, as well as high-level radioactive wastes and biological and chemical war- fare agents. Ocean dumping regulations issued by EPA are consistent with the Convention. Under Title I, Section 107(c) of MPRSA, the Sec- retary of the Department under which the U.S. Coast Guard (USCG) is operating shall provide ocean dumping surveillance and appropriate enforcement activity to prevent unlawful transportation of mate- rial for dumping or unlawful dumping. Such enforce- ment includes safe transportation, handling, storage, stowage, and carriage. Section 108 authorizes the Secretary of the Army, the Administrator of EPA, and the Secretary of the department under which the USCG is operating to issue regulations for carrying out their responsibilities under the Act. The Coast Guard's primary activities under MPRSA are di- rected at surveillance of toxic materials and spot checks of nontoxic dumps. Lowest priority exists for dumping associated with Federal dredging projects (not requiring permits), which represent more than 85 to 90 percent of all U.S. ocean dumping. 38 Sur- veillance achievements have improved significantly for each of the last 3 years. 34 Title II of the MPRSA deals with Comprehensive Research on Ocean Dumping and is largely in re- sponse to the critical data gaps identified by the 1970 CEO report. Section 201 requires the Secretary of Commerce, in coordination with the Secretary of the department under which the Coast Guard is oper- ating and the Administrator of EPA, to undertake a research and monitoring program dealing with effects of ocean dumping. An annual report to the Congress must include an evaluation of short-term ecological and socioeconomic effects. Section 202 requires the Secretary of Commerce, in consultation with other Federal agencies, to initi- ate a research program dealing with long-term effects of pollution, overfishing, and other man-induced changes in ocean ecosystems, and also requires an annual report to the Congress. Section 203 calls for research on ending or minimizing all ocean dumping by 1978, and also is the responsibility of the Secre- tary of Commerce. Title III authorizes the Secretary of Commerce, after consultation with the Secretaries of State, Defense, Interior, and Transportation and the Administrator of EPA, to designate areas of the Continental Shelf and the Great Lakes as marine sanctuaries in order to preserve or restore such areas for their recreational, conservation, ecological, or es- thetic values. Status of Ocean Dumping Dredged Material Dredge material by weight is the most significant material being disposed of in the oceans. The amount dumped annually constitutes over 90 percent of total waste disposed of in the marine environment. The amount of spoil requiring ocean dumping (about 30 to 40 percent) has increased over the years. It has been estimated that over the past years polluted dredged wastes constitute at least one-third of the total waste dumped. 35 ' 36 ' 37 M U.S. Congress, Senate, Committee on Commerce. Ocean Dumping Regulation: An Appraisal of Implementation. Wash- ington, D.C., Government Printing Office, 1976, p. 89. 83 U.S. Congress, op. cit. note 32. 31 Department of Transportation Report to Congress on Ocean Dumping Activities for 1976. 86 U.S. Department of Commerce, NOAA. Report to the Con- gress on Ocean Pollution, Overfishing, and Offshore Development — July 1975 through September 1976, Washington, D.C., Govern- ment Printing Office, November 1977. 80 United Nations, Joint Group of Experts on the Scientific Aspects of Marine Pollution (GESAMP). Scientific Criteria for the Selection of Sites for Dumping of Wastes Into the Sea. Re- ports and Studies No. 3, 1975, p. 21. : " National Academy of Sciences — National Research Council. Disposal in the Marine Environment: An Oceanographic Assess- ment. Washington, D.C., 1976, p. 76. VI-12 In calendar year 1976, there were 32 active Sec- tion 103 disposal permits and the Corps of Engineers undertook 72 authorized projects. 35 The Corps 1 dredging activities are exempted by MPRSA, al- though it is required by regulation to apply the same criteria to its projects as required for the Section 102 permit applications. In 1975, 95 permits were issued, of which 42 were holdovers from 1974. There were no denials of per- mits by the Corps during fiscal years 1974 and 1975. ■ , " In calendar year 1976, 65.5 million cubic yards (93.8 million tons) of dredge material were dumped in marine waters. While this represents a decline over previous years, it probably does not in- dicate a long-term decreasing trend in the amount of annual dredged material being deposited in the oceans. In the last 4 years, the amount appears to remain fairly constant. The Gulf of Mexico (49 per- cent of 1976 material) is the most active region over- all; the Atlantic Region (33 percent) is the second most active. The New York Bight was the most active site nationwide. Over 90 percent of 1976 material was dumped off the coasts of 10 States (Washington, Oregon, California, Texas, Louisiana, Florida, Georgia, S. Carolina, N. Carolina, New Jer- sey) and over 55 percent of the material was depos- ited beyond the 3-mile territorial sea. 40 (For a dis- cussion of dredge and fill regulations under Section 404 of the Federal Water Pollution Control Act Amendments, see Chapter IV.) Sewage Sludge and Ocean Outfalls Sewage sludge disposal presents a different pic- ture. It is now limited to the Atlantic region, where the amount disposed is increasing slightly. The in- crease is due to a rise in population as well as the requirement for secondary sewage treatment, which yields more sludge. The Atlantic area has failed to develop alternatives to ocean disposal and shows a historical usage of this method of disposal due to lack of availability of onshore dumpsites and cost factors. The New York/New Jersey metropolitan region, Philadelphia, and Camden are using three active sites. One is in the New York Bight apex (7.2 million cubic yards in 1974 n ), one is 90 miles east of Cape May, and one is about 50 miles southeast of the mouth of the Delaware Bay. 42 Philadelphia's third interim permit, issued in February 1975, con- tains a mandatory phase-out to eliminate this ocean dumping by January 1, 1981. New York City's dumping is to end December 31, 1981. Camden, N. J., was operating under an emergency permit is- sued after a buildup of sewage sludge in tanks was declared a public health hazard. This permit expired at the end of 1977. 43 Waters of the New York Bight region, already under heavy daily pressure from municipal and in- dustrial wastes as well as massive ocean dumping operations, have significantly declined in quality over the years. In addition to permitted sludge, New York City discharges some 500 million gallons of raw sewage every day through Gateway Park, and about 35 percent of sewage solids for the year are flushed out during rain and do not receive treatment. 44 Industrial Wastes Nine ocean sites are designated for industrial waste disposal. These sites receive industrial chem- icals, which include such things as hydrochloric acid byproducts; inert ore slurry from titanium dioxide pigments; residues from galvanizing and plating op- erations; liquid wastes from textile manufacturing, etching and photographic processes; water solutions of inorganic salts; and other byproducts from various manufacturing processes. 45 EPA's annual report does not normally list actual constituents of the wastes, thus making it difficult to assess potential effects. Industrial dumping occurs primarily off the Atlantic and Gulf of Mexico coasts — a reflection of population and industrial concen- tration. In 1976, 2.7 million tons were dumped, with by far the largest amount going into the Atlantic. The amount of industrial waste dumped decreased by about 1 million tons from 1975 to 1976, because five of the seven original permittees found alternative methods of disposal. 46 Since the Ocean Dumping Act was enacted, EPA has authorized dumping through interim permits where no feasible alternative existed. Most of EPA's assessments have dealt with the avail, bility of alter- native disposal methods rather than the potential adverse effects of all alternatives. One criticism has been that the agency has forced adoption of alter- natives to ocean dumping without weighing the ef- fects. The other side of the issue is the criticism that issuing interim ocean dumping permits allows discharge of wastes that may be harmful and that may contain higher levels of toxic materials than would normally be permitted. 47 3S U.S. Army Corps of Engineers. 7976 Report to Congress on Administration of Ocean Dumping Activities. Washington, D.C., Government Printing Office, 1977, p. 66. 30 U.S. Congress, op. cit. note 32, p. 89. ,0 U.S. Army Corps of Engineers, op. cit. note 38. 41 U.S. Congress, op. cit. note 32. 4 - U.S. Army Corps of Engineers, op. cit. note 38. " U.S. Congress, House, Committee on Merchant Marine and Fisheries. NACOA — Sea Grant — Ocean Dumping. Hearing be- fore Subcommittees of the House Committee on Merchant Ma- rine and Fisheries, 94th Cong., 1st sess. Washington, D.C., Gov- ernment Printing Office, 1977, p. 587. 44 U.S. Congress, op. cit. note 32. 45 U.S. Department of Commerce, NOAA. Report to the Con- gress on Ocean Dumping Research January through December 1975. Washington, D.C., Government Printing Office, 1976, p. 33. 4B U.S. Congress, op. cit. note 32, p. 49-52. 47 Ibid. VI-13 Before enactment of the Ocean Dumping Act, organochlorine wastes were disposed of on land, in the ocean, or by land incineration. The Act pro- hibited ocean dumping except in trace amounts. As a result, interest in incineration at sea has developed. Before 1974 EPA concluded that the Ocean Dump- ing Act did not apply to incineration, but in Septem- ber 1974 the agency reversed itself and asserted jurisdiction. In 1974, Shell Chemical Co. was issued research permits for ocean incineration. A subse- quent EPA report on the trials concluded that ocean incineration was an environmentally sound disposal method, compatible with the Act, and is now being permitted. +s ' 49 Research and Monitoring Under the Ocean Dumping Act The 1970 CEQ report on ocean dumping indi- cated serious information gaps. The areas of needed research were identified: • pathways of waste materials in marine ecosystems; • basic chemical and physical processes in the oceans; • identification of toxic chemicals and data on lethal, sublethal, and chronic long-term impacts on ma- rine organisms; • identification of marine pathogens; • development of alternatives to ocean dumping; • development of national and international pollu- tion monitoring systems. 50 The Ocean Dumping Act of 1972 provided au- thority for undertaking the necessary research. NOAA and EPA are authorized under this Act to conduct related research: NOAA. Section 201. — Comprehensive and con- tinuing programs of monitoring and research on short-term ecological effects of dumping waste mate- rials into the ocean and the Great Lakes, in coordi- nation with the Secretary of the Department in which the Coast Guard is operating and the Administrator of the EPA. Section 202 — Long-range effects of pol- lution, overfishing, and other man-induced changes to ocean ecosystems, in consultation with other ap- propriate Federal departments and agencies. Section 203 — Research aimed at ending or minimizing all ocean dumping within 5 years of the effective date of the Act (alternative research). EPA. Necessary research to provide for an ocean dumping permit system. The Corps of Engineers lacks legislative authority for research under the Act, however, it is engaged in related investigations under the 1970 Dredged Mate- rial Research Program, a provision of the Rivers and Harbors Act of 1970. Part of the Corps research objective is to provide definitive information on en- vironmental impacts of disposal operations and the development of disposal alternatives, including con- sideration of dredge material as a manageable re- source."' 1 The Maritime Administration is also in- volved in work related to Section 203 — development of a U.S. flag capability to incinerate toxic chemical wastes at sea. NOAA's current program of ocean dumping re- search has two major elements: (1) the National Ocean Survey (NOS) Ocean Dumping Program and (2) the related research being conducted by the Marine Ecosystems Analysis (MESA) New York Bight Project. NOS carries out NOAA's responsi- bilities under the terms of the March 1975 EPA/ NOAA Interagency Agreement Regarding Ocean Dumpsite Investigations. NOS is now involved in four major areas of in- vestigations: (1) industrial waste deepwater dump- sites in the Gulf of Mexico, (2) deepwater dumpsite 106, (3) dumping of pharmaceutical waste off Puerto Rico, and (4) dredge material dumpsites in the Mis- sissippi River Delta area. A NOAA/Corps of Engineers interagency agree- ment is in preparation and should be completed early in 1978. The agreement will ensure that NOAA's efforts under Title II will also provide in- formation needed by the Corps for dumpsite evalu- ation and management required under Title I. A third interagency agreement between NOAA and the Coast Guard will also be executed early in 1978. It will ensure that NOAA's programs of monitoring and research, while aiding in fulfillment of NOAA's Title II mandate, will also provide in- formation required by EPA for site evaluation and management, and will provide for a NOAA/USCG coordination in a program of monitoring ocean dis- posal sites. The MESA New York Bight Project began field work in 1973. Project objectives include descriptions of the New York Bight ecosystem and areas near existing and proposed dumpsites, and determination of the occurrence, fate, and effects of pollutants enter- ing the Bight. 52 ' 53 MESA long-term studies include: • chemical and mineralogical composition of pollu- tants and their interactions with seawater; • seasonally occurring low-density, carbon mud patches off Long Island — their derivation and movement; • remote surveillance and monitoring; and • usefulness of various sensing and interpretative techniques. <8 U.S. Congress, op. cit. note 32. 49 U.S. Environmental Protection Agency, Ocean Dumping in the U.S., 1970. 60 U.S. Council on Environmental Quality, op. cit. note 31. 51 U.S. Army Corps of Engineers, op. cit. note 38. r ' 2 U.S. Congress, op. cit. note 32. 53 U.S. Department of Commerce, National Oceanic and At- mospheric Administration. Report to the Congress on Ocean Pollution, Overfishing, and Offshore Development, July 1975 through September 1976. Washington, D.C., Government Print- ing Office, November 1977. VI-14 In 1975 the MESA project also assisted EPA in assessing alternative sewage sludge dumpsites in the Bight. Since 1971, NOAA's National Marine Fisheries Service laboratory at Milford, Conn., has conducted research on the behavior of heavy metals in seawater. Objectives are to determine how heavy metals affect several different organisms at various life stages, and under varying exposure times and environmental conditions. In addition, NOAA's Office of Sea Grant spon- sors a very limited amount of marine research re- lated to ocean dumping and disposal of dredge material. (See Chapter VII, Marine Science and Technology.) In support of the mandates of the Dumping Act, EPA conducts research on ecological effects and alternative methods of disposal and is a participant with NOAA in baseline and monitoring surveys of dumpsites. Research on ecological effects is focused on improving bioassay techniques and methods of predicting and assessing impacts. In fiscal year 1976, Congress allocated additional money to EPA for research in the area of ocean disposal; as a result, new studies were initiated and the level of in-house support increased. In 1976, the agency was engaged either directly or by contracts in 13 separate projects on ocean waste management research. EPA conducts research on alternative disposal methods under legislative authorities other than the Dumping Act. Information on the effects of all vari- able waste disposal alternatives is necessary to deter- mine the optimum disposal method. Research on alternative disposal methods sponsored by EPA in- cludes impact of alternative methods, resource reuse or recovery, detoxification, and ocean incineration. Some of the alternative methods being considered are sludge use, composting, and pyrolysis. Since 1974, EPA's Office of Radiation Programs has surveyed three of the four radioactive waste dumpsites used from 1946 to 1970 in the Pacific and Atlantic, although the United States no longer disposes of these wastes in the ocean. The United States is now evaluating all alternatives, including ocean disposal, for disposal of radioactive wastes. Survey data from the old sites are therefore quite valuable. 54 EPA requires baseline survey data and evaluations of existing and proposed disposal sites for assessing and predicting environmental effects of ocean dis- posal, and for preparing Environmental Impact Statements under NEPA. In response to this need, an EPA/NOAA Interagency Agreement dealing with the conduct of dumpsite evaluations is now in U.S. Environmental Protection Agency, op. cit. note 49. effect. Signed in March 1975, it delineates agency responsibilities for the necessary evaluations. 55 Surveys are currently being made in 12 municipal and industrial dumpsites; 8 in the Atlantic; 1 off Puerto Rico; and 3 in the Gulf of Mexico. 50 Aside from a few cooperative studies and one formal inter- agency agreement dealing with dumpsite surveys and monitoring, both EPA and NOAA pursue dumping research independently within their own' agencies' objectives. The management coordination for re- search under the lead agency concept put forth in Title II has not been achieved or even attempted. Progress and Issues EPA has been criticized by some as being too lenient and by others as being too stringent in admin- istering the Ocean Dumping Act. Progress has been made toward alleviating ocean dumping, but prob- lems still remain in the implementation of almost every aspect of the Act. The initial problem is with the misunderstanding about the intent of the Act. Are we to phase out and discontinue ocean dumping, or do we continue it as a viable alternative under adequate supervision and regulation? The uncertain- ties of this unanswered question are reflected throughout the program, both in regulation and re- search. There are those in the scientific community who feel that from the standpoint of eutrophication the use of ocean outfalls for sewage discharge may be preferable to secondary treatment. 57 The Officer and Ryther study concludes that the eutrophication potential may be enhanced with sec- ondary treatment, since organic nutrients will be more readily available to phytoplankton than would be the case with natural decomposition from sewage outfalls. Even so, use of outfalls would necessitate close attention to pathogens and trace contaminants. Major revisions to the Ocean Dumping Regula- tions and criteria were promulgated in 1977. Dredged materials are now governed by the same cri- teria as other substances, and an assessment of alter- native disposal methods is a part of the permit ap- plication evaluation. Environmental impact statements are now being prepared for ocean dumping with the Gulf Ocean Incineration Site as the first formally designated ocean dumping site. 58 One of the controversies surrounding the pro- gram involve EPA's use of interim permits that allow the temporary dumping of harmful wastes that ex- 55 EPA/NOAA Interagency Agreement concerning baseline surveys and evaluations of ocean disposal sites, under the MPRSA. 56 U.S. Environmental Protection Agency, op. cit. note 49. 37 C. B. Officer and J. H. Ryther. "Secondary Sewage Treat- ment Versus Ocean Outfalls: An Assessment," Science 197: 1056-1060, 1977. ss U.S. Environmental Protection Agency, op. cit. note 49. VI-15 ceed trace level requirements, e.g., dumping of sew- age sludge by New York City and Philadelphia. The criticism is that the Act provides no basis for such a permit and that its use does not conform with the intent of Congress. Time may make this controversy moot since the Final Regulations and Criteria on Ocean Dumping, issued by EPA in January 1977, state that interim permits will be phased out by December 31, 1981. It remains to be seen, however, whether New York City and Philadelphia will have a viable disposal alternative by that time, or whether the interim permit will simply be exchanged for an "emergency permit" as was the case with Camden, N. J. The Congress might also choose to step in; H. R. 4715 would authorize interim permits until December 31, 1981. This bill is expected to be con- sidered during the second session of the 95th Con- gress. A second problem involves the effectiveness of EPA's criteria for assessing material to be dumped, particularly the bioassay tests. EPA has revised its criteria and provided added opportunity for public input by way of the EIS process, but accurate and relevant knowledge from research, and correspond- ing criteria revision, will be the only means of solving this problem. 5060 Enforcement continues to be a serious concern. The Coast Guard's objective is to monitor 75 per- cent of dumping activities at mixed industrial waste sites and 10 percent of the remaining operations. In 1977, 12 percent surveillance in the first area and 22 percent in the second area were achieved. Over- all surveillance techniques still concentrate on vali- dating permits; examining logs, records, and geo- graphic position of the actual dumps; and investi- gating failures to notify the Coast Guard in advance of departure (411 of the 422 violations in 1976 were of this last type). 01 EPA surveillance includes extensive sampling of representative dump loads. Among the major problems confronting research related to the Dumping Act is the lack of resources and coordination. Section 202 of the Act gave NOAA the lead responsibility for initiating a com- prehensive coordinated research program on long- term effects of pollution in the oceans. To date, this requirement has not been met, partly because re- sources were not available and partly because the lead agency mandate and the necessary authority to execute were not explicitly stated in the Act; nor, until recently, has NOAA aggressively pursued the implementation of the intent of Section 202. An overall coordinated program has not been structured, and, as a result, data gaps and duplica- 60 U.S. Congress, op. cit. note 32. "" U.S. Congress, House, Committee on Merchant Marine and Fisheries. Hearings on Ocean Dumping Oversight. Washington, D.C., Government Printing Office, 1977. 01 U.S. Environmental Protection Agency, op. cit. note 49. tion of effort remain obvious 5 years after enactment of the Dumping Act. Research continues to be in- cohesive and without coordinated national planning. NOAA carries out some research on long-term ef- fects of modifications to ocean ecosystems; however, this research is funded under various laws for pro- grams predating MPRSA. As a result, no integrated program within NOAA addresses the concerns of Section 202. Through 1976, the Department of Commerce budget requests did not include Section 202 funding. In 1978, the Department made a minimal request, but no funds were appropriated. Fiscal year 1979 budget requests again include funding for Section 202 implementation. NOAA is currently preparing a Program Develop- ment Plan to be completed in 1978 for implementa- tion of Section 202. The plan will propose a manage- ment framework within which Federal research can be actively coordinated and oriented toward na- tional objectives on long-term effects. The program will seek to eliminate duplication of effort and to provide information in a problem solving mode. Implementation of this plan depends on aggressive leadership and the ability to justify the expenditure of the needed resources. New legislation, S. 1617, the Ocean Pollution Research and Monitoring Pro- gram Act, woutd provide for a coordinated program. It has now become law. Similar problems exist in Section 201 responsibil- ities. A Program Development Plan for implementa- tion of Section 201 was completed in August 1976. 02 It integrated all NOAA programs related to ocean dumping efforts, specifying coordination of NOAA efforts as a key element of an effective program. Owing to lack of resources, the plan has not been implemented as proposed. Instead, efforts have been concentrated on fulfilling NOAA's responsibilities under the EPA/NOAA interagency agreement. In fiscal years 1974 and 1975, Section 201 funds were not requested by either NOAA or the Depart- ment of Commerce. In fiscal year 1976, NOAA's re- quested funds were cut by the Department — funding was not requested by the Administration, and none was appropriated. Finally, funds were appropriated in 1977 and 1978. Funds to implement Section 203 were requested by NOAA, but deleted by the Department of Com- merce. In recent years, EPA and the Corps of En- gineers have carried out research on alternatives that has been responsive to requirements of the Dumping Act. At the present time, Congress is considering the transfer of Section 203's authority from NOAA to EPA as proposed in H.R. 4715. 1,2 U.S. Department "f Commerce, NOAA. Program Develop- ment Plan for Ocean Dumpsite Research and Monitoring Pro- gram, 1976. VI-16 Funding for alternative research by EPA and the Corps has not been a result of appropriations for the Dumping Act, but from other legislative author- ities. Although Section 203 specifies the Department of Commerce as the lead agency, NOAA has de- ferred this responsibility to EPA where facilities, expertise, and a history of this type of research exist. The Maritime Administration (MarAd) is also in- volved in alternative research. There is a current plan to support the development of a U.S. flag capability to incinerate toxic chemical wastes at sea. A Final Environmental Impact Statement has been prepared describing this MarAd Chemical Waste Incinerator Ship Project. This Project is in harmony with Section 203 of the 1972 Ocean Dumping Act. Recently, MarAd contracted out the preparation of "Study of the Economics and Environmental Viability of a U.S. Flag Toxic Chemical Incineration Ship." Oil and the Marine Environment Introduction Oil finds its way into the marine environment through both natural pathways and human accidents. The total annual input of petroleum hydrocarbons to the world's ocean has been estimated to be as much as 6 million metric tons.™ Of this amount, over 35 percent results from ship and tanker operations; 1.9 million metric tons (31 percent) from river and urban runoff; 0.8 million metric tons (13 percent) from coastal refineries, and industrial and municipal wastes; 0.6 million metric tons (9.8 percent) each from atmospheric fallout and natural seeps; and 0.08 million metric tons (1.3 percent) from offshore oil production. Ship and tanker operations together with river and urban runoff account for nearly two-thirds of the petroleum hydrocarbons entering the marine environ- ment. Tanker transportation will continue to play an important role in the U.S. petroleum distribution system, particularly in moving crude oil from Alaska and in moving oil products from Gulf Coast re- fineries to East Coast consumers. In the foreign trade, regardless of the outcome of the Federal government's efforts to reduce foreign energy de- pendence, U.S. waterborne petroleum imports are likely to remain substantial for some years to come. In 1975, more than 43 percent of the 749 million short tons (679.5 million metric tons) of U.S. water- borne traffic was accounted for by petroleum and petroleum products. 04 In 1975, U.S. oil import levels averaged slightly over 6.0 million barrels per day — the same level that is now the goal of the Administra- tion's energy program to reduce oil imports. By 1976, oil imports had increased to 7.3 million barrels per day. Some energy analysts are of the opinion that the 6.0 million barrels per day goal for 1985 is not likely to be attained and that 1985 oil imports, even with optimistic assumptions, will likely be between 10 and 12 million barrels per day. 65 Under these circumstances, waterborne petro- leum carriage requirements would be substantially larger. In response to the rapid expansion in both the quantity of oil moving in international commerce and the average distances involved, the world tanker fleet registered a more than eight-fold increase in aggregate capacity over the 20-year period 1955-75. From 1955 to 1965, the capacity of the fleet more than doubled, rising from 42 million deadweight tons to 93 million deadweight tons. From 1965 to 1975, aggregate capacity increased by more than three and one-half times and at the end of 1975 stood at 347 million deadweight tons. 6G Over this same period, average vessel size also increased dramatically, reflecting the substantial economies associated with large tanker operations, particularly on the longer voyages that have become far more common in recent years. Today it is esti- mated that the cost of transporting a barrel of oil from the Middle East to the United States aboard a vessel in the 250,000 deadweight ton range is about half the cost of transportation aboard a 50,000 dead- weight ton vessel. 67 In response to economic induce- ments of this magnitude, the average size tanker in the world fleet grew from 15,500 deadweight tons in 1955 to 27,100 deadweight tons in 1965 and to 58,200 deadweight tons in 1975. 6S Supertankers now in service range from 100,000 to 500,000 dead- weight tons. More than 116 tankers over 200,000 deadweight tons have been built since 1966. In 1976, supertankers of all sizes represented 55 per- cent of the world's tanker capacity. Based on a review of 1973-76 data, about 12,400 polluting incidents are detected annually in the navigable waters of the United States'. Of this total, 03 National Academy of Sciences. Petroleum in the Marine Environment. Washington, D.C., 1975, p. 6. 64 U.S. Army Corps of Engineers. Waterborne Commerce of the United States, Part 5 : National Summary. Vicksburg Miss , 1975, pp. 3-11. " 5 U.S. Congress, Senate, Committee on Energy and Natural Resources. Project Interdependence: U.S. and World Energy Outlook Through 1990 (A Summary Report). 95th Cong., 1st sess. Washington, D.C., Government Printing Office, 1977, p. 2. " ,; Sun Shipbuilding and Dry Dock Company, Bulk Ship Product Group. Analysis of World Tank Ship Fleet — December 31, 1975. Chester, Pa., November 1976, p. 1. 07 U.S. Congress, Office of Technology Assessment. Oil Trans- portation by Tankers: An Analysis of Marine Pollution and Safety Measures. Washington, D.C., Government Printing Office, 1975, pp. 23-24. 68 Sun Shipbuilding and Dry Dock Company, op. cit. note 66, p. 7. VI- 17 3,338 originate with tank vessels and barges. The quantity of spillage from vessels grew from 9,565.5 metric tons in 1973 to 27,462.7 metric tons in 1976. The major causes of these accidents are structural failures, collisions, and groundings, many due to human error. Tankers deliberately discharge 1 mil- lion tons of oil each year worldwide, and some un- known quantity of that in waters off the U.S. coast, in routine operations of ballasting and tank clean- ing, although the law now prohibits such practices within 200 miles of the coast unless specifically allowed by the 1954 IMCO Convention. 00 Tankers accidently spill 181,440 metric tons of oil each year worldwide (3.3 percent of total oil input to oceans). As the volume of oil in waterborne commerce in- creases and larger tankers are constructed to take advantage of the economies of scale, a catastrophic accident would result in a much larger spill, although supertanker casualties from collisions have not yet produced an abnormal number of major spills. Offshore oil production, which now comprises nearly 20 percent of total domestic oil production, will probably grow in importance. Some studies have indicated that total offshore production may com- prise between 25 and 30 percent of total U.S. oil production by 1985. 70 As conventional onshore pro- duction peaked and has continued to decline, addi- tional emphasis has been placed on the development of oil and gas in the Outer Continental Shelf to offset increasing domestic demands for energy. It is esti- mated that between 8 and 50 billion barrels of oil and 28 to 199 trillion cubic feet of natural gas may exist as undiscovered recoverable reserves in offshore areas. 71 Offshore oil production contributes between 72,570 and 136,080 metric tons of oil per year to the marine environment. 7 - The size of spills and an- nual frequency vary considerably. Although spills may vary from a few gallons to over 150,000, the latter being the amount in the Santa Barbara blow- out, most oil spills are small. In 1972, 96 percent were less than 2.4 barrels (100 gallons). A few very large spills accounted for most of the oil spilled. For example, in 1970 and 1972 three spills each year accounted for two-thirds of all oil spilled in the United States in those years. 73 Changes in technology and operating procedures can also affect the prob- 89 U.S. Congress, Office of Technology Assessment. Coastal Effects of Offshore Energy Systems. Washington, D.C., Govern- ment Printing Office, 1976, p. 76. 70 U.S. Congress, Joint Committee on Atomic Energy. Towards Project Interdependence: Energy in the Coming Decade. 94th Cong., 1st sess. Washington, D.C., Government Printing Office, 1975, p. 35. " U.S. Congress, House, Ad Hoc Select Committee on Outer Continental Shelf. Effects of Offshore Oil and Natural Gas Development on the Coastal Zone. 94th Cong., 2d sess. Wash- ington, D.C., Government Printing Office, 1976, p. 7. " National Academy of Sciences op. cit. note 63. " U.S. Congress, op. cit. note 71, p. 135. abilities and extent of oil spills from offshore devel- opment. One may assume, however, that expanded drilling and production activities off shore will in- crease the probability of oil spills as development in the frontier areas and in deeper waters of the Con- tinental Shelf and Continental Slope proceeds. Vessel Source Pollution Although the River and Harbor Act of 1899 was originally intended to prevent the obstruction of navigation by refuse, it was later held by the U.S. Supreme Court in 1966 to include petroleum released in navigable waters. 74 The first statutory en- actment intended to prevent oil releases into the marine environment was the Oil Pollution Control Act of 1924. This was followed by the Oil Pollution Control Act of 1961 (which implemented the 1954 International Convention for the Prevention of the Pollution of the Sea by Oil), the Water Quality Im- provement Act of 1970, Federal Water Pollution Control Act Amendments of 1972, the Ports and Waterways Safety Act of 1972, and the Clean Water Act of 1977. Before 1970, public concern and consequently political interest over oil pollution was small. The grounding and spilling of 72,576 metric tons of oil by the Torrey Canyon off the coast of England in 1967 and the Santa Barbara blowout from offshore oil wells in January 1969 dramatically pointed out the potential dangers of oil in the marine environ- ment, as well as the inadequacy of the laws to deal with cleanup and liability. Federal activity aimed at developing a U.S. capa- bility to prevent and mitigate the effect of such major oil spills accelerated following these incidents. The Federal Water Pollution Control Administration (predecessor to EPA) and the Coast Guard assumed the lead in this activity. Their earlier efforts resulted in a division of effort wherein the Coast Guard ac- cepted responsibility for developing equipment to contain and clean up spills in the offshore areas, while the FVVPCA concentrated on cleanup tech- niques in sheltered waters. In response to the legislative mandate of the Water Quality Improvement Act of 1970, the Coast Guard promulgated pollution prevention regulations with the intent of reducing the probability of an accidental discharge of oil or oily waste during nor- mal vessel operations, transfer operations, or as a result of certain vessel accidents. The vessel-related portions of the pollution prevention regulations apply to all vessels in U.S. waters (except for vessels not engaged in commerce) and prohibit discharges affecting natural resources of, pertaining to, or under 71 U.S. vs. Standard Oil Company, 384 U.S. 224, 86 S. Ct. 1427, 16 L. Ed. 2d 492, (1966). VI-18 exclusive U.S. management authority. Although many aspects of the regulations relate only to tank ships and tank barges, these regulations also apply to merchant ships, fishing boats, and recreational boats. Standards for bilge and ballast piping, oil transfer hoses, qualifications for the person-in- charge of an oil transfer, and required tests and records are also set out in the regulations. Section 3 1 1 of the Federal Water Pollution Con- trol Act of 1972 prohibits the discharge of a harmful quantity of oil and hazardous substances in any form into or upon U.S. navigable waters, shorelines, of contiguous zone (now encompassing the entire riverine system within the United States upstream to the source), and seaward as may be included in the Clean Water Act of 1977. The person in charge of the vessel or an onshore or offshore facility must notify the Coast Guard National Response Center in the event of any discharge of a harmful quantity of oil or hazardous substances. The penalty against an owner or operator for discharging a harmful quantity of oil is a civil penalty of not more than $5,000 administered by the Coast Guard. The pen- alty for failure to report a discharge is a criminal penalty of not more than $10,000 and/or 1 year imprisonment. The owner or operator is liable to the U.S. Gov- ernment for removal costs of an oil discharge. An inland oil barge owner is limited in liability to the greater of $125,000 or $125 per gross ton of the barge and, in the case of any other vessel, $150 per gross ton, or for a vessel carrying oil or hazardous substances as cargo, $250,000 or $150 per gross ton, whichever is greater. Facilities are liable up to $50 million. Where the United States can show that the discharge was the result of willful negligence or willful misconduct within the privity and knowl- edge of the owner, then there is no limit to the liability for cleanup; the owner or operator must pay all the costs. No liability exists for discharges caused solely by acts of God or war, negligence on the part of the U.S. Government, an act or omission by a third party, or any combination of these causes. Violations of the pollution prevention regulations or any other regulations governing oil pollution is- sued pursuant to the Federal Water Pollution Control Act, as amended, carry a civil penalty of not more than $5,000. A Pollution Information Response System was placed in operation in 1973. This provides spill analysts with complete pollutant discharge histories and data for analysis of spill occurrences. The system includes data relating to the time, specific location, source, primary cause, secondary cause, tertiary cause, material spilled, and volume of all polluting incidents. The weather and sea condition at the time of the spill and resources affected by the spill are described in detail for each polluting accident. Spill response, cleanup activities, and penalty actions are also described in detail for each polluting incident. In 1976, the Coast Guard identified over 12,685 discharges. Of a possible $67,600,000 in civil pen- alties, $1,491,000 was assessed against illegal dis- charges. To reduce the number of "mystery" spills, the Coast Guard had developed a series of scientific techniques to "fingerprint" oil spills by chemical analysis in order to match them to their source. To respond to major or unusual discharges, the Coast Gaurd has developed the National Strike Force con- sisting of 55 highly trained personnel on the Atlantic, Gulf, and Pacific coasts to assist the spill cleanup "On-Scene Coordinator." In addition to domestic pollution emergencies, the Strike Force has assisted foreign governments (upon diplomatic request) in several pollution incidents. The Ports and Waterways Safety Act of 1972 gives the Coast Gaurd the statutory authority to deal with the increasing safety hazards of maritime trans- portation and with pollution resulting from the op- eration of, and casualties to, vessels carrying oil or hazardous substances. The Coast Guard has promul- gated regulations that apply to the design, equip- ment, and operation of U.S. tank vessels. Addi- tionally, regulations have been published that extend those rules to U.S. tank vessels carrying oil in foreign trade and foreign tank vessels entering the navigable waters of the United States. Title I of the Ports and Waterways Safety Act of 1972 authorizes the Coast Guard to implement Ves- sel Traffic Services (VTS), which include strengthen- ing navigation regulations, establishing limited navigation areas, and providing basic traffic separa- tion schemes for both ocean and coast. Vessel Traffic Services have been established in five major port areas using advanced systems of surveillance and communications to regulate navigation. The effec- tiveness of VTS is manifest in the improved safety record of the ports operating with traffic separation schemes. 75 Oil Spill Liability and Compensation In recent years, with increasing public concern over marine oil pollution, Federal and State govern- ments began enacting laws pertaining to liability for vessels and handling facilities. In each instance, they have attempted to clarify and expand liability stand- ards, impose preventive requirements, and ensure some type of compensation. 75 U.S. Congress, Senate, Committee on Commerce. Ports and Waterways Safety. 94th Cong., 2d sess. Washington, D.C., Government Printing Office 1976, p. 60. VI-19 The Federal Water Pollution Control Act of 1970, as amended (33 U.S.C. 1321), was the first to pro- vide specifically for recovery from damages resulting from unintentional spills. The owner or operator is liable for the costs of spill cleanup and removal operations involving navigable waters or contigu- ous zone waters unless the spill results from an act of God, war, U.S. Government negligence, or an act of omission of a third party. The Act established liability limits. It also established a $35 million con- tingency fund to cover spill cleanup by governments (Federal, State, and local) in cases where the source of the spill cannot be ascertained or where cleanup is not being made by the responsible party. The Trans-Alaska Pipeline Act (43 U.S.C. 1653) and the Deepwater Port Act of 1974 (33 U.S.C. 1502 et seq.) both impose liability for all discharges by the vessels and facilities covered in the Acts. Both Acts establish liability funds that may vary with the source of the spill and whether or not it resulted from negligence or willful misconduct. The OCS Lands Act of 1953 (43 U.S.C. 1331 et seq.) also covers oil pollution liability. It does not specifically establish liability for damages, but does authorize the Secretary of the Interior to promulgate regulations for items referred to in the Act, including conservation and protection of natural resources. Current regulations hold the lessees liable to the Federal Government for cleanup and removal costs resulting from spills relating to exploration and development activities. The Federal statutes, though pertaining to differ- ent sources of oil, are still somewhat overlapping, i.e., vessels covered by the Alaska Pipeline Act and the Deepwater Port Act could also fall within the scope of the Water Pollution Control Act, for instance. Differences in standards and liability limits among the Acts could then result in controversies. 76 A further complication arises with regard to the relationship between State and Federal laws. States' efforts have ranged from codifying the remedies in common law to legislatively imposing strict liability. Some State statutes list defenses for relieving strict liability with proof of acts of war or God, third party negligence, intentional acts, and State or Federal Government negligence. Other State statutes estab- lish the no-fault liability. Sources of oil pollution covered, liability limits, financing of funds, etc., vary among States. All of these factors contribute to the ™ U.S. Congress, Senate, Committee on Commerce and the National Ocean Policy Study. Methods and Procedures for Im- plementing a Uniform Law Providing Liability for Cleanup and Damages Caused by Oil Spills from Ocean Related Sources: A Study by the Department of Justice. 94th Congress, 1st sess. Washington, D.C., Government Printing Office, 1975. difficulty of resolving the issue of liability and com- pensation. Today, in response to the need for resolution of this issue, various bills have been introduced in both the House and the Senate which provide for a com- prehensive system of liability and compensation for oil pollution. There are three "Superfund" bills now before the Senate (S. 1187, S. 2083, and H.R. 6803). These bills provide for liability for several different types of damages, recognize claims from nongovernment entities, and provide for a more comprehensive and effective system of compensation. H.R. 6803, which has passed the House (September 12, 1977), is closely alined with the Administration bill, S. 1187; the major difference being that it lacks the provision for fund payment of the cost of oil spill damage assessment. It establishes a $200 million revolving Treasury fund for payment of liability resulting from oil pollution damage. Claims may be made for: • removal, • loss or injury to or destruction of real or personal property, • loss of use of natural resources, • loss of profits or impairment Of earning capacity due to injury or destruction of real or personal property or natural resources, and • loss of tax revenue for 1 year resulting from injury to real or personal property. The President is the trustee for U.S. natural re- sources. The fund is to be coadministered by the Department of Treasury and the Department of Transportation. Liability limits are established for different class vessels and facilities and require the owner or operator to prove financial responsibility. S. 2083 was developed by the Senate Commerce Committee. It differs in its specific approach to several issues regarding the liability and compensa- tion proposals, and it directs the Secretary of Com- merce and the Secretary of the Treasury to jointly administer the fund. In summary, the bills create a system of strict liability of damage and cleanup costs, set liability limits for owners and operators, and establish a compensation fund for damages above owner/ operator liability limits. They also preempt State laws, thereby establishing one uniform compensation program. Authority rests with the Secretary of Trans- portation. If such legislation passes, it would super- cede the liability and compensation provisions of other legislation, including the proposed OCS Lands Act Amendments, which provide procedures for compensation for cleanup costs and damages occur- ring as a result of OCS activities. VI-20 Oil and Gas Operations on the Outer Continental Shelf (OCS) Legislative Authorities In 1953, in response to the increasing agitation among coastal States, the Congress enacted two pieces of legislation establishing jurisdiction over offshore resources. These were: • The OCS Lands Act of 1953. The U.S. Depart- ment of the Interior was designated by this legis- lation as the responsible agency for the majority of the Act's provisions regarding mineral leasing and development of offshore resources beyond States' jurisdictions. The Bureau of Land Man- agement and the U.S. Geological Survey have been assigned responsibility for resource develop- ment, safety, resource evaluation, and environ- mental protection. Other Federal agencies have responsibilities under the Act. The U.S. Coast Guard is responsible for enforcing regulations on warning devices, safety equipment, and safety of life and property. U.S. Army Corps of Engi- neers issues one of the permits required for con- struction (including pipelines) on the OCS and in other navigable waters. The Corps' jurisdiction was extended to artificial islands and fixed struc- tures on the OCS. • The Submerged Lands Act of 1953. This Act granted coastal States responsibility over sub- merged lands seaward to 3 miles. A greater area was granted Florida and Texas. It reaffirmed Federal jurisdiction beyond the State seaward boundaries. Additional Federal responsibilities and authorities related to OCS oil and gas activities are vested in a number of agencies: • Environmental Protection Agency (EPA). Is re- sponsible for pollution control and waste disposal. • Federal Power Commission (now FERC). Grants certificates for public convenience and necessity and determines amounts of OCS gas purchased and transported; • Interstate Commerce Commision. Grants approval of tariff rates for common carrier pipeline oil transport; • Department of Transportation, Materials Trans- portation Bureau. Establishes standards for pipe- line construction, operation, and maintenance; and • Department of Commerce, NOAA. Protects ma- rine fisheries resources through consultation with the Corps in its issuance of permits in navigable water. Evolution of the Offshore Leasing Program In the early years of the program, OCS leasing aroused concern only in some local areas of the Gulf of Mexico and the program was subject to little national scrutiny. This changed with the major blow- out in the Santa Barbara Channel in 1969. As a result of this oil spill, the OCS leasing program moved into the national limelight and as a result of the 1973 energy situation has remained there ever since. Lawsuits against the Federal Government became more frequent, as the Arab oil embargo brought the OCS to previously undeveloped areas. In December 1974, suit was brought against the Interior Department in an attempt to forestall a pro- posed lease sale off Alabama, Florida, and Missis- sippi. The plaintiffs maintained among other things that there was insufficient environmental information. The court, however, ruled that an adequate assess- ment based on available information had been made. Even so, as a result of this case the Department of the Interior made a commitment to begin environ- mental studies in the area, and out of this has grown the present Bureau of Land Management studies program. In January 1974, the President announced that 10 million acres were to be leased in 1975 — equiva- lent to the amount leased since 1953. The decision to accelerate leasing in combination with Interior's previous history of little or no substantive consulta- tion and coordination with affected coastal States brought increased pressure on the agency. 77 The Department of the Interior took steps toward involv- ing components outside the Federal Government in the following ways: • Requests for comments on the 17 potential OCS leasing areas. • Establishment of the OCS Research Manage- ment Advisory Board (now the OCS Environ- mental Studies Advisory Committee). 78 This Com- mittee is composed of both Federal and State representatives. • Issuance of the draft and final programmatic EIS for the accelerated program. • Participation of States in the tract selection proc- ess, including attendance at BLM-GS briefings and deliberations. This participation was initiated in 1975. • Participation by States in developing lease stipu- lations involving special environmental protection requirements and other mitigating measures. 77 U.S. Congress, Committee on Commerce. Outer Continental Shelf Oil and Gas Leasing Off Southern California: Analysis of Issues. Committee Print. S. Res. 222 National Ocean Policy Study. 93rd Congress. 2d Sess. 1974, 100 pp. 7S As of December 1977, it was reorganized Co be the Na- tional OCS Scientific Advisory Council, separate from the OCS Advisory Board (policy). VI-21 • Commitment by the Secretary to the preparation of environmental statements on development plans in frontier areas. • Establishment by the Bureau of Land Manage- ment of the Intergovernmental Planning Program for Leasing and Transportation of OCS Oil and Gas. This program, in addition to formalizing existing pre-leasing coordination, sets up a Federal- State-industry partnership for planning for trans- portation of oil and gas from the OCS to shore. • Endorsement by the Secretary of proposed amend- ments to the OCS Lands Act, designed to increase State and public participation in the leasing deci- sionmaking process, to alter the bidding system, and otherwise improve the management of the program. Administrative procedures to implement many of the proposed changes have already been put into effect. Following the decision to accelerate leasing numer- ous bills that would amend the OCS Lands Act were introduced in the 94th Congress. None were enacted. Largely because of strong State objections and DOFs efforts to provide more meaningful public and State involvement, the OCS leasing timetable has been slowed down since 1975. In May 1977, Interior announced a revised leasing schedule for sales through 1978. The 1977-78 leasing plan included sales in the less sensitive areas and did not include areas in Alaska, California, and the South Atlantic. In late summer 1977, Interior published its new 5-year leas- ing schedule. Several factors in the past have contributed to the conflicts surrounding the OCS program. Among the most significant are: • The Santa Barbara oil spill, • Growing knowledge of the importance of OCS oil to offset our dependence on foreign supplies, • President Nixon's accelerated leasing decision and Interiors attempts to implement it, • Increasing public concern over the impacts of expanded OCS production, • Increasing State and local government concern over their past lack of participation in leasing decisions, • Growing awareness of the potential for oil in the frontier areas, and • Increasing use of OCS oil as a short-term solu- tion to the Nation's energy problem. OCS Environmental Studies Since the OCS studies program began, the Bureau of Land Management (BLM) has contracted for over $125 million in baseline and special marine studies. In 1974, BLM and NOAA entered into an arrange- ment for BLM funding of work performed by NOAA for the Alaska OCS Environmental Assessment Pro- gram. The Bureau's OCS studies program has been controversial almost since its beginning. One criti- cism has been that the information from the studies has not been effectively tied to leasing decisions. Critics charge that the purpose of the studies has not been defined fully, and that there has been no program development plan for the complete program and no overall policy statement. According to the Office of Technology Assessment, the nature of the relationship between the studies and the leasing decision process is the primary issue. These and other concerns have been voiced by both the OCS Advisory Board and the OCS Environmental Studies Advisory Committee. In the past 2 years, dissatisfaction with the pro- gram has increased, even within the Department of the Interior itself. 79 During the June 1977 meeting of the OCS Advisory Board, Guy Martin, Assistant Secretary for Land and Water Resources, stated that there was a need to reexamine the OCS environmental studies program to determine if the proper type of information existed for the different decision points in the leasing program. He further suggested that the Advisory Board determine the policy for the OCS Environmental Studies Advisory Committee to implement. 80 Recent indications from the Assistant Secretary's office reflect the view that the baseline program has been misdirected and that the information collected has not been as useful as it could be to the leasing decision-maker. The suggestion is that specially designed mission-oriented studies would be of more value. At the request of BLM, the National Academy of Sciences made a detailed assessment of the overall OCS environmental studies program. The conclu- sion was that the program had not been based on research appropriate to answer environmental con- cerns for offshore oil and gas leasing and that the program "does not now effectively contribute to leasing decisions or to the accrual of sound scientific information adequate for OCS management, both offshore and onshore." sl Recommendations were made concerning program design, implementation, and utility. It should be noted that there are those in the scientific community who feel that the import- ance of long-term baseline measurements of living resources should not be minimized and that these, coupled with process-oriented studies, should provide the principal thrust of the BLM-OCS studies. The following activities have been undertaken recently by the Interior Department in an attempt to alleviate some past public concerns: 70 U.S. Department of the Interior. Record, Meeting of the OCS Environmental Studies Advisory Committee. July 19, 1977. 80 Ibid. 81 National Academy of Sciences — National Research Council. OCS Oil and Gas: An Assessment of the Department of the In- terior Environmental Studies Program. A report to the Depart- ment of the Interior, 1977, p. 107. VI-22 • The Bureau of Land Management has proposed a planning program for the acquisition and evaluation of management information and for coordinated intergovernmental management plan- ning regarding leasing and transportation of OCS oil and gas. The proposal would establish Regional Working Groups in each leasing area composed of representatives from the affected States, BLM, NOAA, Fish and Wildlife Service, Geological Survey, the U.S. Coast Guard, industry, and other interests as appropriate. • In July 1977, BLM published proposed regula- tions for OCS Leasing Environmental Studies. 82 These regulations formalize the current program which began in 1972. The regulations govern the timing and nature of the BLM studies as needed for assessment and management of impacts on marine and coastal environments of the OCS resulting from oil and gas leasing. NOAA will be used to the extent practicable. • On October 4, 1977, U.S. Geological Survey regulations were established for OCS oil and gas operations — suspension procedures. The regula- tions detail the procedures for suspension of oper- ations due to threat of significant irreparable damage to life, property, or natural resources. • On the same day, October 4, 1977, BLM pro- posed regulations for OCS oil and gas lease- suspension and the 5-year term, were also com- pleted. The proposed rule clarifies the way in which the term of an OCS oil and gas lease runs when it is subject to a suspension. The purpose of this rule-making was for consistency with the Geological Survey suspension regulations. In September 1977, the U.S. Geological Survey published in the Federal Register proposed regu- lations for the Outer Continental Shelf Oil and Gas Information Program. Si The proposed regu- lations describe policies, procedures, and require- ments for specifying relevant oil and gas data and information resulting from OCS activities that may be made available to affected States and local governments. On the same date, the Bureau of Land Manage- ment published its proposed rules for an OCS leas- ing oil and gas information program. 84 These rules also deal with the release of information to the States for their use in determining impacts and planning accordingly. In the same month, Geological Survey published proposed regulations for oil and gas and sulphur operations on the Outer Continental Shelf (a revision of existing operating regulations for ex- ploration, development, and production on the OCS). 85 The proposed regulations provide policies, procedures, and requirements for affording States timely access to information related to onshore and offshore activities. They also prescribe mech- anisms for review and comments on OCS deci- sions. They deal in specific terms with exploration and development plans and environmental reports to be submitted by the lessee. The regulations pro- vide items to be assessed for determining whether or not an environmental impact statement is re- quired for a development and production plan. They further list criteria for determining when a general area statement will be required. Deep Seabed Mining Introduction The deep seabed areas of the oceans, beyond the continental margins, contain mineral deposits known as manganese nodules. These mineral resources, some of which are found in water depths greater than 15,000 feet, contain cobalt, copper, manganese, nickel, and other metals. Commercial interest in manganese nodules has been increasing since the 1960s in the United States, as well as in a number of other industrialized countries. Millions of research and development dollars have been committed by private industry to the discovery of prime-quality deposits, the design and testing of mining recovery systems, and the development of metallurgical proc- essing techniques for extracting the key metal com- ponents from the nodule ores. The technological lead- ers in this new industry have established commercial operating plans requiring several years of additional detailed exploration and prototype equipment testing leading toward full-scale production. Today, ocean mining stands on the threshold of becoming a reality. But the continuing absence of a stable legal and political framework in which these activities may occur results in serious questions as to whether this transformation will take place in a timely manner or be indefinitely delayed. The un- certainty arises from the location of proposed ocean mining operations — beyond the national jurisdiction of any country. While the international community has been attempting for many years to create a new legal framework for minerals exploitation in the deep seabed, no agreement has yet been reached. Recent developments have increased the uncertainty that the negotiations can be successfully concluded. ! Federal Register, Vol. 42, No. 133, Tuesday, July 12, 1977. S3 Federal Register, Vol. 42, No. 186, Monday, September 26, 1977. M Ibid. 85 Federal Register, Vol. 42, No. 187, Tuesday, September 27, 1977. VI-23 The United States, therefore, has recognized the need for interim domestic legislation so that ocean mining may proceed. The recovery of nodules from the deep seabed presents a unique natural resource problem. The con- servation principles of protecting the environment and providing for the orderly development of the resource must be met. In addition, there is another principle of recognizing the international nature of these resources and creating a mining environment consistent with international obligations. This prin- ciple adds a unique complexity to this natural re- source problem and makes achievement of the other principles more difficult. Nature and Extent of the Resource The origin of the deep-sea deposits of hydrous ferromanganese oxides or manganese nodules has been under debate for some time. Several theories have been cited, including introduction of manganese from land drainage and subsequent precipitation on the seafloor, introduction from submarine volcanism with subsequent precipitation in an oxidizing envir- onment, and dissolution from hemipelagic sediments under reducing conditions and reprecipitation near the oxidizing sediment/ water interfaces. 86 It is likely that any one of these mechanisms may dominate, depending on the local environment. A somewhat more controversial theory is that nodule growth and dissolution is controlled by bacterial action. Both theoretical and experimental evidence for this have been presented. 87 The nodules are widespread, but unevenly dis- tributed. In some large areas they may cover 100 percent of the seafloor and in other areas be entirely absent. The reported range of concentration varies widely, growth rates also vary, and nodule size may not be a direct function of age. Mineral content apparently correlates with other nodule parameters and environmental factors. For example, depth cor- relates directly with cobalt and copper content in the Pacific. 88 Data available on worldwide distribution of manganese nodules and other subsea resources were consolidated into a set of maps and published by the U.S. Geological Survey in 1970 as map 1-632. Subsequently, considerable work has been done in the northeast equatorial Pacific Ocean under the manganese nodule project of the National Science Foundation and under various academic investiga- tions under Sea Grant programs. Scripps & Lamont " E. Bonatti, "Authigenesis of Minerals — Marine," in En- cyclopedia of Geochemical and Environmental Sciences, S. V. Hill (ed.). Volume IV A, 1972, pp. 45-56. 87 H. L. Ehrlich, The Microbiology of Manganese Nodu'es. Final Technical Report, Task No. NR 137-655, Office of Naval Research, U.S. Department of Defense, 1970, pp. 1-17. m A. M. Ehrlich. Rare Earth Abundances in Manganese Nodules. Ph.D. Thesis: Massachusetts Institute of Technology, 1968, pp. 3-216. Doherty laboratories have already participated in this research. Detailed prospecting and exploration have been made by industrial concerns, both U.S. and foreign, but this information is generally not in the public domain. From a resource standpoint, the depth zones be- tween 3,000 and 6,000 meters have the most poten- tial. Estimates of resources for the Pacific Ocean have been reported by Mero (1965) s9 at 1,700 billion metric tons, later revised (1967) to 1,500 billion, and by Zenkevitch and Skornyakova (1961) 90 at 90 billion metric tons. Mero's figures are based on meas- urement from 101 photographs and cores and grab samples; most of the calculations concerning manga- nese nodule tonnages are admittedly speculative and have little meaning in an economic sense. More data are available now, and compilations of resources have been published by others. These reports sug- gest that the extent of nodules in the Pacific Ocean is about 1,500 billion metric tons. Less is known about nodules in other oceans. For the purpose of world resource estimates, a total of 1,700 billion metric tons, as reported by Mero (1965) 01 and cited by MeKelvey et al. (1969) 92 may be assumed. This estimate includes 1,500 billion metric tons in the Pacific, 150 billion metric tons in the Indian Ocean, and 50 billion metric tons in the Atlantic. Estimates for the Arctic or small ocean basins have not been made. Data available on the worldwide distribution of potential mine sites were summarized in a 1976 staff study by the Department of Interior's Ocean Mining Administration. 93 The richest concentrations apparently are in the Pacific north of the Equator, extending from the Hawaiian Islands to the west coast of Mexico, a region about 2,600 miles long and 500 miles wide. The Bureau of Mines is developing a comprehen- sive computerized data base on nodule location, analyses, and sample information; data have been entered for more than 5,000 samples from more than 2,700 stations in the Pacific and Indian Oceans. The information is compiled under contracts and grants with universities and other oceanographic institu- tions, including company data where available. These data are being incorporated into a series of mineral resource and bathymetric maps to be published. Based on these data, nodule units are being identified 89 J. L. Mero. The Mineral Resources of the Sea. New York: Elsevier Publishing Company, 1965, p. 312. °°N. Zenkevitch and N. S. Skornyakova. "Iron and Manga- nese on the Ocean Bottom" Natura (U.S.S.R.), 1961, p. 47-50. m J. L. Mero, op. cit. note 89. 02 U.S. Department of the Interior, Geological Survey, Sub- sea Mineral Resources and Problems Related to Their Develop- ment, by V. E. MeKelvey, J. I. Tracy, G. E. Stoertz, and J. G. Vedder, USGS Circular 619. Washington, D.C., Government Printing Office, 1969. m U.S. Department of the Interior, Ocean Mining Administra- tion. Ma/iganese Nodule Resources and Mine Site Availability, by A. Holser, Professional Staff Study, August 1976. VI-24 in specific localities for tonnage, grade, and opera- tional costs. In support of the NOAA DOMES Program, the U.S. Geological Survey is continuing basic scientific studies on details of nodule characteristics, sedi- ments, sedimentary water, plume dispersions, and settling rates and associated geologic investigations. State of Technological Development The state of technology in the developing deep- seabed mining industry is quite well advanced. Pros- pecting and exploration activities have been carried out by a number of companies since the early 1960s. The basic methods of exploration have advanced from random tracking and sampling with wire line buckets and drop corers or grabs to well designed exploration using precision depth recorders, deep towed instrument platforms with subbottom profilers, side scan sonar, T.V., stereo-color photography, and free fall boomerang box corers and grabs. Real-time data reduction using computers is becoming standard procedure. Bulk sampling for metallurgical purposes has continued to rely on primitive, but adequate, bucket dredges. Major gaps in exploration technol- ogy are found in the very slow rate of exploration coverage (2 to 3 knots with towed platforms) and in the testing of large areas of engineering properties, a slow and unreliable process with results that are difficult to confirm. Navigational and positioning capabilities are fully in line with the accuracies needed for exploration and, probably, for commer- cial production needs. The mining process involves gathering the nodules from the seabed in depths up to 6,000 meters and lifting them to a surface platform. Two basic meth- ods for collection and lift have been tested at sea. One is a continuous bucket line which involves an endless rope looped to surface platforms and ro- tating slowly so that buckets attached to the line will drag across the bottom at predetermined inter- vals as the platforms move across the nodule field. All the mechanical problems for this system, which involves some 9 kilometers of line and hundreds of buckets, have yet to be resolved fully, and it may take several years to perfect the system. Unverified cost advantages are claimed for the bucket line over the hydraulic system, which has also undergone at- sea tests using a gathering device which is towed at the end of the hydraulic pipe. Pump suction or air lift methods have both been tested, but not at full scale. Four major consortia now plan tests under actual mining conditions, though at less than pro- duction capacity. One of these will introduce a con- trolled gathering device which will traverse the bot- tom under its own power instead of under tow by the surface platform. The testing and evaluation of these systems may take 2 to 3 years. At that time, investment decisions for full-scale commercial pro- duction systems would be made. Major shortcomings in the technology of deep- seabed mining can only be resolved by actual opera- tion. They include the ability to match the seabed equipment to the physical characteristics of the seabed and the ability to forecast environmental dis- turbances caused by the operations. It is likely that any major technical problems would involve equip- ment reliability under the stress of continuous opera- tion. Transportation and unloading requirements should present few technological surprises, and standard procedures can be adapted to these tasks. The technology of processing the ore to extract the metals has been well developed. Public state- ments by U.S. -connected companies and develop- ment work by the U.S. Bureau of Mines indicate that there are several potentially economic options in this regard. Unquestionably, improvements in processing technology will be sought as full-scale plants come on stream, but it does not seem at this time that there are any major technological deficien- cies to be overcome. In summary, the technological development of ocean mining systems is well advanced for first generation systems, although the reliability of ma- terials and design has yet to be tested under con- tinuous operational stress. The next 2 to 3 years should be significant in the confirmation or rejection of the present, partially developed, concepts. Potential and Importance to the United States Importance of the Minerals The four metals of principal interest contained in manganese nodules are copper, cobalt, manganese, and nickel. Of these four metals, the United States imports about 98 to 99 percent of annual cobalt and manganese consumption, over 70 percent of nickel consumption in an average year, and 25 per- cent or less of annual copper production. Table 6-1 compares annual consumption, mine output, reserves, Table 6-1. — Statistics for value metals obtainable from manganese nodules 1 In thousands of short tons. Annual consumption Annual (primary and mine secondary) output Reserves as years of Reserves consumption Copper Cobalt Manganese Nickel 2,350.0 10.3 1,307.0 227.6 1,610 17 93,000 200 39.6 0.9 1 U.S. Department of the Interior, Bureau of Mines. Com- modity Data Summaries — 1977. pp. 42, 46-7, 98, 112-13. VI-25 nd reserves indicated in years of consumption for 1976. Although these data oversimplify the U.S. posi- tion in the short term, as stockpiles, increased re- cycling, or demand reductions are not considered, the long-term position is more clear. The United States has little, if any, potential for significant pro- duction of cobalt or manganese. U.S. copper re- serves are large, and the United States is the largest copper producer in the world. However, imports as a percentage of consumption have increased over recent years. Domestic nickel production is not sig- nificant, and is unlikely to become so until techno- logical advances make deposits economic. 94 The four metals most likely to be recovered from nodules are important to the U.S. economy. About two-thirds of nickel consumption goes into the manu- facture of capital goods. Consumer durables are the largest end use of the remaining one-third, with automobiles being the largest single element. Nickel is often used as the principal alloying ingredient in high-performance steels. An example is jet engine turbine blades. 05 Manganese is also an important ingredient in steel- making. There is no acceptable substitute for man- ganese as a toughening agent and as a sulphur- removing or fixing agent. 96 About 95 percent of world manganese output is used in steel production. Cobalt metal is used principally in alloys, perma- nent magnets, and cemented carbides. Superalloys containing from 36 to 65 percent cobalt can with- stand severe stress at temperatures up to 1,600 de- grees F. Although for some uses, cobalt and nickel are nearly interchangeable, and other alloying metals are substitutes in other uses, cobalt is clearly superior for many specialized uses such as carbides and some tool steels. 97 Over one-half of copper consumption is for elec- trical uses. In 1976, copper consumption was esti- mated by use as: electrical, 58 percent; construction, 14 percent; transportation, 9 percent; ordnance, 2 percent; and miscellaneous, 5 percent. 98 Although many other metals and materials may be substituted for copper in specific uses, such as aluminum for electrical purposes, or plastic for plumbing, copper often provides superior performance. Of the four principal metals of interest in manga- nese nodules, the United States is not likely to be a 94 U.S. Department of the Interior, Bureau of Mines. Mineral Facts and Problems, 1975 Edition. Washington, D.C., Govern- ment Printing Office, 1976, p. 747. m Arthur D. Little, Inc. "Technological and Economic Assess- ment of Manganese Nodule Mining and Processing," contract report for U.S. Department of the Interior, Office of Minerals Policy and Research Analysis, Cambridge, Mass., November 1977, pp. 62-64. M Ibid., pp. 74-76. 07 U.S. Department of the Interior, op. cit. note 94, p. 276. 08 U.S. Department of the Interior, Bureau of Mines. Com- modity Data Summaries — 7977. pp. 46-47. producer of manganese and cobalt and not likely to have significantly increased production of nickel in the foreseeable future. Our copper reserves are large, but imports constitute an important share of con- sumption. The interest in developing a new source for these metals is not because of threats of shortages, cartel actions, or embargoes. Rather, the interest is in diversifying the sources of these important metals so that the United States will not depend on only one or a few sources for any of them. Economic Potential of the Resource Manganese nodules are a marginal resource now. The best estimates of cost and return on investment publicly available 90 indicate that, with current tech- nology, deep sea deposits can compete with land- based mineral deposits in the foreseeable future. A manganese nodule mine will produce at least three metals: cobalt, copper, and nickel. As mining and processing techniques become perfected and their costs are better estimated, some potential pro- ducers are indicating that manganese will be pro- duced to assure profitability. Given that all four metals may be produced, the potential importance of nodules as a source of metals is shown in table 6—2 for various levels of production. One deep-sea mining operation is likely to process about 3 million short tons of dry nodules per year. Clearly, an ocean mining industry will not be able to operate profitably unless it can produce manganese, nickel, and cobalt at prices low enough to capture a large share of future growth. As low- cost nickel deposits are exhausted and production becomes concentrated in higher cost lateritic deposits, deep-sea output can gain a place in the market. Inasmuch as lateritic deposits are energy intensive, steadily rising energy prices will improve the com- petitive position of deep-sea deposits. However, if several operations produce simultaneously, it is pos- sible that world prices of manganese, nickel, and cobalt may be reduced. With neither operating history nor firm cost esti- mates, the economic importance of manganese nod- ules is necessarily speculative. Recent reports 100 ' 101 do indicate that investments in ocean mining are likely to be at least as attractive as investments in lateritic nickel deposits in the short term with higher risks offset by a higher potential rate of return. The long-term outlook is even more optimistic as long as world prices hold at predicated levels. 00 Arthur D. Little, Inc., op. cit. note 95. 100 Arthur D. Little, Inc., op. cit. note 95. 101 U.S. Department of the Interior, Ocean Mining Administra- tion. Ocean Mining — An Economic Evaluation, by Rebecca L. Wright, Professional Staff Study, March 1976. VI-26 Table 6-2. — Potential importance of manganese nodules as a source of metals United States Free World Nickel Copper Manga- nese Cobalt Nickel Copper Manga- nese Cobalt 1975 consumption in thousand short tons 2 Production from nodules as a percentage of 1975 consumption 3 for: Million short tons of dry nodules per year 145 1,540 1,130 6.4 470 6,000 6,000 20 2 20 1.6 38 59 6.1 0.4 7.2 19 4 40 3.3 77 118 12.0 0.8 14.0 38 6 60 4.9 115 177 18.0 1.3 22.0 58 8 79 6.5 154 236 25.0 1.7 29.0 76 1 U.S. Department of the Interior, Ocean Mining Administration. Ocean Mining — An Economic Evaluation, by Rebecca L. Wright, Professional Staff Study, March 1976. - Commodity Data Summaries, U.S. Bureau of Mines; Metallgesellschaft AG; and ADL estimates. :i 90 percent recovery of metals; grades: Ni = 1.6%, Cu =1.4%, Mn = 24%, Co = 0.21%. United Nations Law of the Sea Conference The manganese nodules on the deep seabed lie outside the jurisdiction of any country and are con- sidered the "common heritage of mankind." For this reason, they have been the object of extensive nego- tiations under the auspices of the Third United Na- tions Law of the Sea Conference. To date the Con- ference has been unable to reach agreement on who has the right to mine the nodules and what interna- tional controls should be placed on those miners. The uncertainty of international legal and political developments bears directly on investments in ocean mining. Private companies are unwilling to advance ocean mining operations until the legal situation is clarified. It is generally recognized that a long-term, stable climate for investment can best be accomp- lished through an international regulatory regime under a new law of the sea treaty. In 1975, after two substantive sessions of the Third United Nations Conference on Law of the Sea, a single negotiating text was drafted as the basis for future negotiations. This text was unacceptable to the United States because it contained no assur- ance that U.S. interests in maintaining access to these resources would be protected. A revised text devel- oped in spring 1976 contained a number of improve- ments from the U.S. point of view. A two-part parallel system of development of deep seabed re- sources was devised. The first provided for mining by States and their nationals, which would be author- ized through contracts with the International Seabed Authority under reasonable terms and conditions; the second provided for developments directly by the Authority through its operational arm, the Enter- prise. This revised text attempted to balance and separate the powers and functions of the plenary organ, the Assembly, and the executive organ, the Council of the Authority. The major issues left unresolved were the composition and voting mech- anism of the Council of the Authority and the sta- tutes of the Enterprise and the Seabed Tribunal. 102 At a later session in 1976, the developing coun- tries insisted on returning to basic issues and nothing more was resolved. In the 1977 session, a new nego- tiating text was introduced that was described by the U.S. Ambassador to the Conference, Elliot Richard- son, as "fundamentally unacceptable to the United States." 103 In his testimony to the Senate in October 1977, Ambassador Richardson enumerated the prob- lems of the latest deep seabed text: 104 • It does not give the reasonable assurance of access that is necessary if the United States and others are expected to help finance the Enterprise and to accept a "parallel system" as a basis of compro- mise. • It could be read to make technology transfer by contractors a condition of access to the deep seabed, subject, at least in part, to negotiation in the pursuit of a contract. • It could be read to give the Seabed Authority the power to effectively mandate the Authority as a condition for access. • It fails to set clear and reasonable limits on the financial responsibility of contractors, possibly creating an obstacle to seabed development. • It sets an artificial limit on seabed production of minerals from nodules, which is not only objec- 102 U.S. Department of the Interior. Mining and Minerals Policy — 1977 Annual Report under the Mining and Minerals Pol- icy Act of 1970. Washington, D.C., Government Printing Office, 1977, pp. 135-6. 103 E. Richardson, Ambassador to the U.N. Law of the Sea Conference, Testimony before the Senate Committees on Com- merce and Energy and Natural Resources, October 4, 1977. 104 Ibid. VI-27 tionable in principle, but also far more stringent than necessary to protect land-based producers from possible adverse effects. • It gives the Seabed Authority extremely broad, open-ended power to regulate all other mineral production from the seabed "as appropriate." • It could be read as giving the Authority unaccept- able new power to regulate scientific research in the area. • It fails to adequately protect minority interests and would, accordingly, allow the abuse of power by an anomalous "majority." • It allows the distribution of benefits from seabed exploitation to peoples and countries not parties to the Convention. • It seriously prejudices the long-term character of the international regime by requiring that, if agree- ment to the contrary is not reached within 25 years, the regime automatically be converted into a "unitary" system, ruling out direct access by contractors, except to the extent that the Author- ity might seek their participation in joint ventures with it. For a system that would manage half of the Earth's surface, these are serious deficiencies. They would unnecessarily inhibit, and perhaps even pre- vent, deep seabed development. The next session of the Law of the Sea Conference is scheduled for spring 1978. Ambassador Richardson feels that the next session will reveal finally whether a compre- hensive treaty is possible in the near future. The Federal Role and Congressional Initiatives While the United States continues to pursue a satisfactory international resolution in the Law of the Sea Conference, the Administration also supports the enactment of interim legislation that would au- thorize U.S. seabed miners to move forward. U.S. legislation establishing a domestic regime for seabed mining will be needed, whether there is an inter- national treaty or not, to regulate U.S. seabed mining in accordance with sound conservation p nciples. Additionally, in the absence of a treaty, the United States will need assurance that existing international rights in the areas beyond national jurisdiction are protected. If there is to be any meaning to the concept of a "common heritage of mankind," those with the technology and resources to make seabed mining a reality must be allowed to move forward. In the Administration's view, legislation should meet the following criteria: 105 • Be interim in nature, providing for its own suc- cession by a treaty; • Contain provisions for harmonizing U.S. regula- Op. cit. note 103. tions with those of reciprocating states so as to avoid conflict; • Provide for resource conservation, including envi- ronmental protection; • Provide that seabed mining by U.S. companies produce financial benefits for the international community. • Not require that processing plants be located in the United States; • Not offer U.S. mining companies financial protec- tion against adverse effects of a treaty concluded subsequent to the passage of legislation and ex- penditures by those companies; and • Assure that all provisions of the legislation leave undisturbed the concept of freedom of the high seas. In 1977, the Congress considered several bills that would establish a domestic authority for deep seabed mining. Two of these bills, H.R. 3350 and S. 2053, are likely to be considered further in 1978. The Administration is proposing amendments to H.R. 3350 which, if adopted, would bring the bill into alinement with the criteria listed above. Under the terms of the proposed deep seabed mining acts, the United States would issue licenses for exploration and permits for mining manganese nodules on the deep seabed. The acts would provide for development of deep seabed mining technology and regulation of operations of U.S. citizens con- sistent with sound resource conservation principles. These operations would be conducted in accordance with the doctrine of Freedom of the High Seas. Licenses and permits would be issued to qualified U.S. citizens under regulations to be promulgated by an administering agency. All provisions of the National Environmental Policy Act of 1969 would be adhered to in the licensing and permitting oper- ation. Licensed operators and permit holders would be required to follow resource conservation regulations, including environmental controls, established by the administering agency after suitable public hearings. These operations would be subject to continuing in- spections and monitoring. Environmental Aspects of Seabed Mining Today, the broader major potential problems cen- ter around the following: • The Law of the Sea (LOS) negotiations and in- dustry and the U.S. Government concerns; • U.S. seabed mining legislation vs. Law of the Sea negotiations; • The lack of information on environmental effects in areas with new technology; and • Environmental regulation in an international arena. This discussion will focus on those problems specific- ally involving environmental concerns. VI-28 Environmental Regulation in an International Arena The United States will not be alone in deepsea de- velopment; therefore, our domestic controls will not ensure environmental protection. Other nations' en- vironmental values are often not as advanced as our own. This is no new problem, and history illustrates the problems for environmental regulation in this type of situation; e.g., the International Whaling Commission, the Intergovernmental Maritime Con- sultative Organization (IMCO), and so on. The list of factors signalling problems for environmental regula- tion is lengthy indeed. Until the international community demonstrates an intention for strict environmental regulation, one pro- cedure for the United States is through our own legis- lation, thereby extending the reach of our control in the environmental area. As previously mentioned, U.S. national controls would not ensure environ- mental protection, but they could be effective. Proper U.S. controls could result in tighter environmental standards for U.S. industry techniques and tech- nology. Established, successful U.S. standards could possibly strengthen our position in international negotiations for environmental regulations. 106,107 In international negotiations, the United States should place emphasis on the right of participating countries to establish their own standards; higher, if desirable, than those of the Authority. A closely related question and one of concern deals with enforcement authority for international standards. Traditionally, international agencies have not been vested with enforcement powers. Mecha- nisms and procedures should be clearly spelled out. Lack of Environmental Effects Information Deep-sea mining has loomed over the horizon long enough for environmental assessment to have been well underway. A unique opportunity was offered for assessment and environmental guidelines to precede technological development and operational activities. The entire environmental effort, prior to 1976, however, was largely unsatisfactory. The Deep Ocean Mining Environmental Study (DOMES) by NOAA (officially begun in fiscal year 1976) has involved close coordination with industry and should provide sound information for future decisions. DOMES is a component project of NOAA's Ma- rine Ecosystems Analysis (MESA) Program. 108109 It was designed to identify potential marine environ- mental impacts to be expected from, commercial mining of deep ocean manganese nodules. Phase I of DOMES officially began in 1976 with some related research conducted in 1974 and 1975. In addition to providing a quantitative baseline, the first phase was to identify major processes controlling the distribution and abundance of marine organisms and to provide information for development of pre- dictive models on the environmental effects of ocean mining. The guidelines resulting from this study, now in preparation, will suggest means of minimizing ad- verse mining impacts. Phase I field operations ended in November 1976, and the final interpretation of the studies was completed in January 1978. In the meantime, an analysis of potential mining impacts, using information available through mid-July of 1976, was published in April 1977. Baseline studies of Phase I have been carried out at three sites within an area of the Pacific currently considered a primary industry target. Phase II is designed to monitor the prototype mining equipment tests and to refine the guidelines resulting from Phase I. It will also provide data for refinement of our predictive capability. Phase II began in 1978; the mining industry began its proto- type testing early in 1978. In 1975, the Congress directed NOAA to include assessment of processing facility impacts on land or at sea. Contract reports have been prepared for NOAA. 110 The reports, based on existing available information, identify and describe production facil- ities that will likely be required by the first-generation nodule mining industry and possible transportation and waste disposal alternatives. Information in these reports will help in assessments of impacts on land and at sea and will be used for followup impact assess- ments. The possibility exists for some processing at sea, at least in the second-generation efforts. This is another opportunity to assess first and thereby guide development of techniques and sites; the result re- mains to be seen. Research on environmental effects will no doubt continue to be less than maximally effective until agency jurisdiction is established and a cohesive program adequately funded and imple- mented. State of Knowledge Concerning Possible Impacts There are three broad areas of impact to be dealt with: • Benthic environment — the seafloor and the life dwelling on it, • Pelagic environment- — the water column and the organisms associated with it, and • Site processing — at sea or on land. 106 E. Richardson, op. cit. note 103. 107 Richard Frank, op. cit. note 24. 10S Richard Frank, op. cit. note 24. 100 U.S. Department of Commerce, NOAA. Management Plan for Marine Ecosystems Analysis (MESA) Program. Environ- mental Research Laboratories' MESA Program Office, Boulder, Colo., 1977. 110 Dames and Moore and EIC Corp. Description of Manganese Nodule Processing Activities for Environmental Studies, Vol- ume I, Processing Systems Summary; Volume II, Transportation and Waste Disposal Systems; a contract report prepared for the U.S. Department of Commerce, NOAA Office of Marine Min- erals, August 1977. VI-29 IMPACTS ON THE BENTHIC ENVIRONMENT Mining will have both direct and indirect effects on the sea bottom and associated organisms. With the hydraulic system, assuming a unit production of 5,000 metric tons of dry nodules per day, 1.9 square kilometers per day of the seafloor will be mined. A much larger area (25 percent larger) will be required, however, because of unminable topography and areas of low nodule concentration. The mechanical system (continuous line bucket) will directly affect the sea- floor along a narrow swath parallel to the ship's track. 111 Dredging • An obvious direct impact on marine organisms will be the destruction of a large percentage of those in the path of the nodule retrieval mecha- nism. The significance of this impact will be de- termined by the extent of the ocean floor that is mined. If a large enough area is affected, it is pos- sible that species with slow reproductive cycles could be lost (some are thought to require 200 years to reach maturity) from the community in the mined area or even become extinct. This im- pact could be partially mitigated if mining is strictly regulated so that intermediary patches are left intact between dredge tracts. 112,113 The value of protection of these deep-sea orga- nisms is not measured in economic terms or even in terms of their importance in the food web. Their value lies in the fact that they represent a unique assemblage of relict and seldom seen fauna important to the understanding of evolutionary biology. Negligent extinction of these faunal com- ponents through our mining efforts would be inex- cusable, and careful preventive measures must be taken. Benthic Discharge Plume In addition to the effect of the actual dredging, the benthic fauna will be affected by the release of particulates in the near-bottom water column as a result of washing. The hydraulic system will create a specific benthic discharge in the form of a plume con- taining resuspended bottom sediments, nodule frag- ments, interstitial water, and benthic biota. Impacts are as follows: • The principal direct effects of this discharge will result from the resuspension of particulates in the lower water column and their subsequent settle- ment. Unfortunately, the physical processes con- trolling the redistribution are not well understood. At least a portion of the particulate matter will likely remain in the lower column and may settle out many kilometers from the disturbance site. The extent of this redistribution is unknown. Localized sedimentation rate will certainly be one to several orders of magnitude higher than normal. We may, therefore, assume that many additional benthic organisms will die as a result. Some will be suffocated as a result of clogging of the respira- tory system, others will starve as a result of in- crease in sediment cover and their inability to bur- row to the surface. Many of the smaller fragile forms will be destroyed by even a thin layer of sediment (1 to 2 mm); 114 • Resuspension and resettling of bottom sediments could increase trace metal content of the sediment surface and adjacent water column. Direct effects will probably be negligible. Indirect effects, how- ever, could be significant. There is evidence in the literature to indicate that heavy metals accumulate in organisms at the various trophic levels. The long biological half-life and the high concentration factors found in many marine species suggest that food web magnification can occur. If this is the case, toxic effects on consumers could then result from feeding on organisms further down in the food web. • An additional potential effect is the transportation of spores or other dormant life forms by means of sediment resuspension. There is initial information on the possible occurrence of dormant photosyn- thetic organisms in deep-sea sediments 115 116 and some evidence for activation of these organisms with surface exposure. 117 The implication of this impact is little understood, but it is likely to be relatively insignificant. The survival success of these previously dormant species will depend largely upon their ability to compete with the already well-established species. It has been specu- lated that they could indeed outcompete the local populations to the detriment of the community and even that they may possess some harmful char- acteristics. Again, this seems unlikely; however, data should be generated concerning the behavioral nature of these long dormant forms both to in- crease our understanding of food web stability and to ensure that we avoid speculations characteristic 111 U.S. Department of Commerce, NOAA. Progress Report — Deep Ocean Mining Environmental Study — Phase I, NOAA Tech- nical Memorandum ERL MESA-15, August 1976, 178 pp. " : Richard Frank. Deep Sea Mining and the Environment. American Society of International Law, Studies in Transnational Legal Policy No. 10, 1976, 54 pp. Iu National Academy of Sciences. Mining in the Outer Con- tinental Shelf and in the Deep Sea. Panel on Occupational Safety in Marine Mining. Marine Board, National Research Council. Washington, D.C., 1975, 119 pp. 114 U.S. Department of Commerce, op. cit. note 111. m T. C. Malone, et al. "The Possible Occurrence of Photo Synthetic Microorganisms in Deep Sea Sediments of the North Atlantic," Journal of Phycology 9: 482-483, 1973. ""Op. cit., NAS. note 113. 117 U.S. Department of the Interior, Draft EIS — Proposed Involvement in Law of the Sea Negotiations Governing the Mining of Deep Seabed Hard Mineral Resources Seaward of the Limits of National Jurisdiction, 1974. VI-30 of the andromeda syndrome. Assuming no harmful competition, a new phytoplankton bloom could contribute to reoxygenation of surface waters where oxygen will be used in oxidation of discharged sediment. 118 Benthic organisms may also be indirectly affected by events taking place within the midwater column and in the surface layers. Necessary nutrient accumu- lation in the deep-sea environment originates from the surface layers. In summary, there will be gross mortality of benthic fauna near the disturbance area. The signifi- cance of this impact will depend upon the extent and duration of the disturbance and the thickness and rate of resedimentation. Deep-sea faunal succession and recovery rates need further study to enable pre- dictions of long-term effects on the system as a whole. IMPACTS ON THE PELAGIC ENVIRONMENT When the sediment and near-bottom water is dis- charged, either at intermediate depths or at the sur- face, it will form a discharge plume. Characteristics of this plume have been cited as potential cause for concern. 119 ' 120 ' 121 - 122 Productivity Surface plume models for assessing "worst case" situations have been developed by DOMES. The "worst case" evaluation includes situations where all discharged sediment remains in the surface mixed layer as well as those cases where particles settle through the layer. In this situation: • Maximum initial direct effects on temperature and disolved solids would be so insignificant that they would be difficult to measure and any resulting biological impacts inconsequential. • Increases in the concentration of plant nutrients (P04, SI04, and N03) would be almost too slight to even measure, therefore, will likely be insig- nificant in the long term. 123 - 124 • The increased particulate concentration may be of more concern. In the "worst case," without sedi- ment sinking, light penetration will be greatly re- duced in the area of the discharge plume and this in turn will reduce productivity by as much as one- half in 24 hours. If one takes sediment settling into account, the above effect is diminished. In any case, there will likely be a decrease in standing stock, the extent of which is unknown, but is ex- pected to be a localized effect not extending 118 Ibid. ""National Academy of Sciences, op. cit. note 113. 120 U.S. Department of Commerce, op. cit. note 111. 121 Richard Frank, op. cit. note 112, p. 54. 122 U.S. Department of the Interior, op. cit. note 117. 123 U.S. Department of Commerce, op. cit. note 111. 124 W. H. Thomas. "Phytoplankton Nutrient Enrichment Ex- periments Off Baja, California and in the Eastern Equatorial Pacific Ocean," Journal of the Fisheries Resource Board of Canada 26:1133-1145, 1968. further than a few tens of kilometers from the drill ship. The significance of this impact will depend upon dispersion and settling rates, the extent of the mining operation, and its duration. Any large- scale reduction in productivity could obviously have ramifications throughout the ecosystem. • Depending upon the above occurrences, there could be a reduction in zooplankton standing stock since changes in the phytoplankton community will have corresponding effects on higher trophic levels. The magnitude and significance of this effect are un- known at the present time. Baseline data in the DOMES area indicate a near steady condition for relatively long periods of time between phyto- plankton production and zooplankton feeding. Be- cause of this, it is possible that a reduction in productivity will result in a reduction in zoo- plankton numbers, possibly affecting higher trophic levels. 125 Bathypelagic and deeper living fish could also be affected since they probably depend, at least in part, upon the organic matter generated in the upper layers. 126 Behavior and Toxicity Behavior of organisms in response to environ- mental signals is always of concern in areas where interference may occur as a result of man's activities. It is a well-established fact that many marine species respond to changes in light intensity. For example, many adjust their position in the water column in response to ambient light changes. Little information exists regarding behavior in terms of deep-sea mining impacts. Current information indicates the following: • Little zooplankton vertical migration occurs in the upper zone of the study area so that decreases in light as a result of surface discharge will not sig- nificantly affect migration patterns. Behavioral impacts are in need of further study. 127 • Increased sediment concentration can affect respi- ration and feeding of zooplankton by increasing energy expended by filter feeders to capture and assimilate food, by increasing sinking rates of or- ganisms, and by increasing likelihood of trace metal accumulation. Quantitative evaluation of these impacts is not possible with available in- formation. • Preliminary results from work done by Southwest Fisheries Center (NMFS) Honolulu Laboratory indicates tuna aversion to traversing areas of algal blooms, possibly to avoid turbidity which again raises the question of changes in behavior result- ing from alteration of the environment. Down- 125 U. S. Department of Commerce, op. cit. note 111. 120 M. Blackburn. Review of Existing Information of Fishes in the DOMES Area of the Tropical Pacific. Final Report NOAA Contract No. 03-6-022-35125. Institute of Marine Resources. University of California, La Jolla, Calif., 1976. 127 U.S. Department of Commerce, op. cit. note 111. VI-31 current plumes could therefore interfere with migrating fish. The degree of impact will depend on the size of the plume and its duration. It should be noted that tuna are characteristic of clear water and are seldom found under turbid condi- tions. 128,129,13 ° This could, therefore, indicate a possible effect on the efficiency of longline fishing, although the likely extent is not known at this time. • Highly mobile fish should, for the most part, be able to avoid high turbidity areas unless they are extremely widespread. The result would be indi- vidual deaths from respiratory clogging and inter- ference with feeding behavior. The significance of this impact is unknown, but the effects will likely be short term and localized. • There will also be possible effects from subsurface turbidity plumes, which may form in association with the pyncocline. The impacts in this instance would involve deeper epipelagic fish including the tuna taken by longlining down to 200 meters. Mobile epipelagic fish would move away from the layers with little mortality. Vertically migrating mesopelagic fish will encounter these turbidity layers and may not pass through them in which case they would tend to move out of the area of their occurrence. The presence of these turbid layers will result in some mortality, but the overall effect on populations and community structure is unknown. • Both benthic and pelagic filter feeding organisms will ingest sediment particles and incorporate them into fecal pellets. It is not known to what extent this will be beneficial in clearing the water and in- creasing settling rates minimizing impacts on other organisms, nor is it known what effects, if any, this will have on the food web. It is, however, another avenue into the system for toxic substances. • Increased sediment will provide additional sub- strata for bacterial growth that could then use the dissolved organic matter in seawater. Studies are underway (DOMES) to investigate bacterial growth on the particles using dissolved organic matter. If bacterial growth resulted in greater use of the dissolved organic matter, this, in combina- tion with discharge of bottom water in the lower dissolved organic matter concentrations, could be- come limiting. Whether or not this is a potential problem is little understood, and opinion is divided. The studies should provide some insight. The above has been a description of the qualita- 12s H. Yabe, Y. Yabuta, and S. Ueganagi. "Comparative Dis- tribution of Eggs, Larva, and Adults in Relation to Biotic and Abiotic Environmental Factors, FAO Fish Report 6(3):979-1009, 1963. 13,1 G. W. Bane. The Distribution of Abundance of Tunas and Tuna Bait Fishes in the Gulf of Guines. Thesis: Cornell Univer- sity, Ithaca, N.Y., 1961, 119 pp. "°G. 1. Murphy. "Effect of Water Clarity on Albacore Catches," Limnology and Oceanography 4:86-93, 1959. tive effects on benthic and pelgaic biota as a result of deep-sea mining. Our ability to assess impacts will improve as additional data from the DOMES effort become available. It should be emphasized that the value of biological information does not lie in the ability to say "some organisms will die as a result of these activities." The value to the decision maker lies in the ability to provide an assessment of the signifi- cance of this destruction to the long-term health of the ecosystem. It is likely that the most significant unanswered questions center around the effects of the resus- pended sediment in the surface plumes at the pyc- nocline and in the benthic plume. IMPACTS OF PROCESSING Little or no information is available on the poten- tial environmental effects associated with transpor- tation and processing of manganese nodules. In view of this, and to complement the DOMES at-sea re- search, NOAA has contracted for studies to char- acterize possible onshore and offshore processing methods and likely transportation and waste disposal activities. These descriptive works were published in August 1977. 131 Followup phases of the NOAA program will use data from these reports to analyze potential environmental impacts. Impacts from land transportation will depend upon the method used. Potential modes include the haul system, conveyor, slurry pipeline, and trucking. Resulting impacts will likely be slight, barring acci- dents. The major environmental problems will cen- ter around waste treatment and disposal. The largest portion of mineral process wastes consist of finely ground rock slurried with liquid waste (tailings). Six alternative disposal methods have been described. 132 Of these, three are felt to be the most likely for first-generation activities. These are disposal in a landfill, disposal in a conventional slurry tailings dis- posal system, and disposal by deep-ocean dumping. Careful impact evaluation will have to be done on all viable alternatives in order to ensure selection of an environmentally sound method and strict environ- mental and safety regulation. At-Sea Processing Though indications are that first-generation opera- tions will use onshore processing, the possibility still exists for these activities to take place at sea. There are three general options for processing at sea: • Physical benefication. • Partial processing to produce an intermediate product, and • Full at-sea treatment to finished products. :l1 U.S. Department of Commerce, op. cit. note 111. M U.S. Department of Commerce, op. cit. note 111. VI-32 Incentives that may stimulate mine site processing are: • Savings in transportation costs, that is, shipping a more concentrated product. • Cost and siting of waste disposal for land-based processing facilities. The first of these alternatives, physical benefica- tion, would be economically attractive. Tailing wastes would be disposed of at sea, and the upgraded nodule material further processed on land. Tests have demonstrated, however, that manganese nodules do not lend themselves to this method without additional chemical treatment. The third alternative would like- wise require the development of new technology. Partial processing, therefore, seems to be the only option likely in the near future. There are several possible methods of partial proc- essing at sea. They would involve production of an impure metal precipitate at sea with the following purification and final production on land. At-sea dis- posal of wastes would likely be necessary for eco- nomic viability. This will require careful environ- mental regulation. Impact assessment should focus on waste disposal, discharge or accidental spillage of caustic reagents, and the energy source, whether it be fossile fuel or nuclear. 133 ' 134 - 135 Onshore Processing Impacts from onshore processing will differ con- siderably. Potential impacts will be associated with transportation from the mining site to seaports, in- cluding transfer from mining ships to transport vessel, and return of fuels and supplies from shore to mining ship. There will be impacts in the area of the port facilities for receipt of nodules, storage, and the start of inland transportation. This could involve onshore and/or offshore terminals with their attendent effects. The type of terminal will depend upon whether the nodules are in slurry, whole, or dried and ground. 1 U.S. Department of Commerce, op. cit. note 109. Richard Frank, op. cit. note 24. Richard Frank, op. cit. note 112. VI-33 Chapter VII: Marine Science and Technology Often referred to in tandem, marine science and technology are separate but closely-coupled proc- esses. Science provides the key to understanding the oceans and contributes, with engineering, to the development of technology. Technology is the key to expanded marine operations, and its elements are used in scientific investigations as well as in eco- nomic and other activities unrelated to science. Before World War II, U.S. marine science was largely the province of the universities. Through the 1920s, the bulk of the marine research effort was carried out at a few small coastal laboratories used by university biologists and their students. Then, in the late 1920s, the National Academy of Sciences began calling attention to a research deficiency in ocean- ography. In 1930, the Rockefeller Foundation re- sponded with $6 million in grants for the construc- tion of oceanographic laboratory facilities. As a result, three major centers of ocean science were developed: the Scripps Institution of Oceanography, the Oceanographic Laboratories of the University of Washington, and Woods Hole Oceanographic Insti- tution. Until World War II, endowments, funds from foundations, and other private sources, as well as allocations from State university budgets, sustained the research of these three laboratories plus the oceanographic work of a few small biological sta- tions. The oceanographic activities of the Federal Government were, at that time, limited almost en- tirely to fisheries investigations and to surveys for mapping and charting. The character of U.S. science was drastically altered during World War II by the infusion of Fed- eral funds into scientific projects having military applications. When the wartime organization of sci- ence was disbanded, marine science and technology might have returned to the comparatively small-scale privately funded efforts of the prewar era had it not been for the initiation of a Navy program to pro- vide support for research and development in areas of Navy interest. The availability of this funding was responsible for continued rapid growth of the marine sciences in the postwar period. In the 1950s, Navy support of science, including the marine sciences, leveled off. From 1947 to 1957, the Navy increased its funding of basic research by 50 percent, about the same percentage that the cost of support per scientist increased. Although additional support became available from the Atomic Energy Commission, the Department of the Interior's Bureau of Commercial Fisheries, and the National Science Foundation, the growth rate of the marine sciences declined in the 1950s. In 1957, the International Geophysical Year and the launching of Sputnik I by the Soviet Union pro- vided a new impetus for U.S. science efforts, includ- ing those directed to understanding and making use of the oceans. In the decade that followed, Federal support of oceanography expanded rapidly. The major emphasis of these efforts, however, continued to be on research, both basic and applied, and on such supporting elements as instrument development and the construction and maintenance of ships and shore facilities. Surveys and other use-oriented serv- ices accounted for only 15 to 25 percent of the en- tire Federal ocean program at that time. 1 After 1966, a number of services and engineering and technology activities, as well, were added to the Federal ocean agenda. Since 1970, additional ocean functions that emphasize management and conservation of ocean resources have been undertaken by the Federal Government. Trends in the National Scientific Effort The development of marine science and tech- nology must be considered in the context of the trends in U.S. science policy in general. Expenditures and obligations for the funding of science and engi- neering activities have commonly been used as indi- cators of national scientific commitment. It should be remembered, however, that they are measures of input rather than output, and as such are imperfect estimates of achievement. The National Science Foundation (NSF), how- ever, uses a series of useful indices that track the 1 Interagency Committee on Oceanography of the Federal Council for Science and Technology. National Oceanographic Program for Fiscal Year 1962, and fiscal years through 1967. ICO Pamphlet numbers 2, 3, 11, 15, 17, and 24. Washington, D.C., U.S. Navy, annually 1961-66. VII-1 general course of science and technology develop- ment and reflect the changing character and com- parative stature of U.S. research and development (R&D) in the context of worldwide trends. 2 Unfor- tunately, the level of integration of the data used by NSF in Science Indicators prohibits the identification of marine science and engineering as a functional entity. National and International Trends in R&D Funding Historically, total national R&D expenditures grew at a steady linear rate of approximately one-half billion dollars annually from World War II through 1956. 3 In 1957, the annual rate of expenditure in- creased significantly (fig. 7-1). Since that time, a 35 — 30 — 25 — 20 — Total current M dollars m Total constant g 1972 dollars g /yL. i *^ / / / / — f Federal constant ♦* f 1972 dollars ** / ^^""V / - * % — r + A* i' y* M f Federal current M .»* dollars S] I I I I I I I I I 10 — 1951 '56 '58 '60 66 70 Figure 7-1.— National R&D expenditures 1954-76 (billion dollars). Source: Science Indicators 1976, National Science Board, 1977, p. 206, p. 208. strong commitment to the national science effort has continued, with a steady increase in R&D funds. Inflation, however, has eroded the purchasing power of the research dollar so that in terms of constant dollars, i.e., current dollars adjusted by GNP implicit price deflators, R&D has been level-funded since 1967 or has slightly declined. 2 National Science Foundation, Science Indicators, 1967: Re- port by the National Science Board. Washington, D.C., Govern- ment Printing Office, 1977. :1 "Research and Development" as used herein means basic and applied research and development activities. Federal funds for R&D increased in current dollars in all but two of the years between 1960 and 1976, reaching their highest level, over $20 billion, in 1976; funding in constant dollars, however, peaked in 1967, had declined 20 percent by 1974, and then rose 3 percent to the 1976 level (fig. 7-1). In the meantime, 1960-76 R&D funds provided by industry rose more rapidly than those of the Fed- eral Government, reaching $16.5 billion in current dollars in 1976; these funds in constant dollars were at their highest level in 1976, although there had been a rise of only 1.5 percent since 1973. The proportion of the Gross National Product (GNP) expended for research is regarded as a uni- versal index of the national commitment to science and technology. According to this indicator, the 35 1 U.S.S.R. FRANCE I960 '62 74 Figure 7-2. — R&D expenditures as a percentage of gross national product 1961-76 (percent). Source: Science In- dicators 1976. National Science Board, 1977, p. 184. VII-2 fraction of the U.S. GNP devoted to R&D has diminished steadily over the last decade, falling nearly 25 percent from its peak in 1964, although the United States still leads all of the major R&D- performing countries with the exception of the Soviet Union. The U.S. decline is largely due to the reduced growth of expenditures by the Federal Government for R&D in defense and space exploration. 4 While the proportion of the GNP spent for R&D by the United States has declined significantly during the past 14 years, the percentage increased substantially in the USSR, West Germany, and Japan (Fig. 7-2). In 1974, the proportion of GNP directed to R&D was 2.3 percent in the United States, compared with 3.1 percent in the Soviet Union, 2.2 percent in West Germany, and 2.0 percent in Japan. France is the only other industrial country evaluated that has shown a long-term decline in percent of GNP de- voted to research. The implications of R&D funding based on the NSF indicators suggest continued strong general support for R&D activities. However, if general ex- penditures for R&D continue to decline in terms of constant dollars, it may be necessary to make some difficult decisions respecting research priorities. Dis- regarding the massive commitments to "glamour" programs, such as space exploration and nuclear energy, Federal R&D funding has been more or less proportionately distributed among competing research activities. 5 Significant commitments of Federal funds to energy R&D in an all-out effort to develop alter- native energy sources could again result in an ex- panded R&D budget skewed toward energy applica- tion. Nonscience priorities, on the other hand, could co-opt potential Federal growth funds, thus either maintaining the status quo or heightening the com- petition for an even smaller piece of the constant- dollar Federal budget. Trends in Marine Science and Technology Funding For data on ocean-related R&D expenditures, one must rely on the data included in the National Oceanographic Program, which was compiled by the Interagency Committee on Oceanography (ICO) through 1966; the data subsequently provided in Marine Science Affairs, which was published by the Marine Science Council until its termination in 1971; and the data now included annually in the Federal Ocean Program. Unfortunately, inconsistencies in the definition of marine science and engineering pro- grams in the Federal budget and changes in the ac- counting procedures of Federal agencies prevent exact comparability among the time series data. During the period 1968-77 national R&D expen- ditures in terms of constant dollars continued their general decline (fig. 7-1); ocean-related R&D, on the other hand, remained steady over the same period (fig. 7-3). The activities identified in the "ocean research" and the "ocean engineering" cate- gories of the budget tabulations in the Marine Science Affairs and Federal Ocean Program reports (fig. 7-3) are assumed to approximate, but not wholly reflect, Federal expenditures for marine science and technology. Because ocean-related R&D is but a small subset of the total Government-wide R&D program, oscil- lations in year-to-year funding are more pronounced. The surge of funding which spanned the 2-year period between 1970 and 1972 coincided with in- creased expenditures by NSF for the International Decade of Ocean Exploration (IDOE) and additional obligations for expanded research facilities and cap- ital equipment. The inclusion of capital outlays in 4 NSF, op. cit. note 2, p. 4. 5 NSF, op. cit. note 2, p. 41. Figure 7-3. — Federal expenditures for marine-related R&D 1967-77 (million dollars). VII-3 the aggregate expenditures for marine science and technology tend to mask the trends in long-term R&D hnancing. Similarly, the logistical costs of re- search, e.g.. expenditures for the maintenance and operation of ships and facilities, while they contribute to the research effort, are fixed costs that tend to in- crease over time, but which cannot be considered legitimately as increases in research effort. For practical purposes, funding for ocean-related R&D in terms of constant 1967 dollars has been nearly level since 1968 if the short-term increase in funding in 1971-72 is discounted (fig. 7-3). Ex- penditures for all activities included in the Federal Ocean Program followed a similar trend, with fund- ing in terms of constant 1967 dollars increasing slowly over the past decade (fig. 7—4). Structure of Marine Science and Technology— Perspectives of the Field Science is often categorized in quasi-independent elements: "basic" and "applied"; "mission-oriented" and "nonmission-oriented"; "big" and "little." Sci- ence is also categorized by performer. Each cate- gory has a constituency, each has its patronage, and each plays an important role in the R&D continuum. 0.8 — c d rrent Dllars 0.6 — 0.4 1967 dollars 0? — n _L 1 1 1 '69 Figure 7-4. — Expenditures for the total Federal Ocean Program 1967-77 (billion dollars). The high cost of equipment, ships, and laboratory facilities have created a situation where only the Fed- eral Government and industry can afford to support marine science and technology. But industry re- sources are directed toward profit-making activities, and there are limits to Federal funds available for R&D. Thus, the issues in Federal support of ocean- related R&D often hinge on the allocation of the Federal ocean R&D budget among competing but complementary scientific activities. There are few benchmarks to determine how much basic or applied science is enough. Similarly, there are no precise performance standards to determine whether the cost effectiveness of university-based research is greater or smaller than Federal laboratory-based re- search. Equally difficult to decide is: what kind and how much research and development should be un- derwritten by the private sector vis-a-vis the Federal Government? Much of the controversy over the distribution of support between basic and applied science arises from the persistent concern by the general academic community that basic science is not receiving a fair share of the total R&D budget. If indeed there is a mismatch between the basic science budget and the total science budget, it may be partly because poten- tial applications often underlie the private and public support of basic science, yet the value of any given piece of work often does not become fully apparent until years after it is published. A comparison of total R&D expenditures (fig. 7-1) with basic research expeditures (fig.7-5) reveals that both rose continually during the 1960-76 period as measured in current dollars; in constant dollars, funds for both in 1975 were at about the 1965 level. This level for basic research was 12 percent lower than the peak year of 1968; for all R&D, the 1975 level was 7.5 percent below 1968. In 1976, basic research expenditures rose 1.6 percent in constant dollars, while total constant dollar R&D expenditures rose 2.9 percent (fig. 7-1). The Federal component of R&D expenditures follows a pattern similar to the national. The Federal pattern, however, is somewhat more favor- able to basic research. In constant dollars, total Federal expenditures for R&D peaked in 1967, dropped 20 percent to a 1975 low, and then rose 3 percent in 1976. Federal constant dollar support for basic research peaked in 1968, dropped 16 per- cent to the 1975 low, but rose only 1 percent in 1976. The difference between the trends for all R&D and for basic research reflects the fact that industry, which provides over 40 percent of total R&D sup- port, continued to expand its activities in the applied sciences and engineering. Meanwhile, the share of the R&D dollar allocated to basic research by the Federal Government, which contributed over two- VII-4 bUUU Total Current M 4500 Total conslanl 1972 dollars dollars M 4000 /' ^ 3500 •^w i f 4 I / / 3000 — IS Federal current J* dollars J^ I /r % """">:,. / 1 // -X 2500 - * /s — ■>• *•** — % •< t /" . ' *•* / / y Federal conslanl / / / 1972 dollars 2000 1500 /i * V / iooo a- / J ■;nn i i i i i 1 1 19B0 '66 76 Figure 7-5. — Basic research expenditures 1960-76 (million dollars). Source: Science Indicators 1976, National Science Board, 1977, p. 211. thirds of all basic research funding, has remained about the same. Industry, like the academic community, has ex- pressed concern about the role of the Federal Government in R&D. Industry's concern is that Federally sponsored projects may transcend the imaginary line that separates nonmarket-oriented technological innovation from market-oriented com- mercial development. On the other hand, industry is also concerned that Federal regulatory actions may be based on limited technological expertise. As in marine science, which includes both applied and basic research, ocean technology includes both short-term development for application to immediate problems and general purpose engineering and tech- nology to lay the basis for long-range development. The need for a broad base of ocean technology, not directed to specific applications but useful to a wide spectrum of ocean development activities, has been recognized by a number of Government advisory groups representing industrial and academic interests. While the responses of Government, academe, and industry are to some extent self-serving, it is funda- mental to the development of consensus on the optimal apportionment of resources and responsi- bility within the U.S. research establishment. The relative roles of each sector in the support and con- duct of marine science and technology are not mutually exclusive, they tend to overlap throughout the R&D process (table 7-1). The Stratton Commission cautioned that "it is essential that the distinction be clearly made between what private industry should do for itself under profit motivation and what the Government should do to assist." 6 The distinction between governmental function and private function is unfortunately not that clear. A fuzzy line of demarcation separates their respective roles. If the process of innovation is short-circuited too soon by terminating Government involvement before industry is capable of nurturing the innovation, the economic return on the Govern- ment's R&D investment may not be realized. There are three instances where the Federal Government has extended its role into the techno- logical development process beyond the frontier that normally divides governmental activities from private activities: (1) in the case of disaggregated industries, e.g., agriculture, fisheries, and medicine, where the structure of the private sector sometimes discourages applied R&D because of lack of capital and exper- tise, or where industry has no incentive to develop new information that would be available equally to competitors as well as sponsors of the research; (2) where the Government is the consumer of the technology, e.g., defense systems, space technology, and undersea technology; and (3) in instances where support of long-range, high-risk, high-priority tech- nology is clearly in the national interest, e.g., nuclear technology and ocean thermal energy conversion. u Report of the Commission on Marine Science, Engineering, and Resources to the President of the United States and the U.S. Congress, by Julius A. Stratton, Chairman. Our Nation and the Sea — A Plan for National Action. Washington, D.C., Gov- ernment Printing Office, 1969, p. 39. Federal Marine Science and Technology Establishment Marine science and technology efforts are sup- ported by 21 organizations in 6 departments and 5 independent agencies. The unstated policy of the U.S. Government has been to couple specific R&D activities to the management and regulatory respon- sibilities of individual agencies. This tendency reflects the recognition that marine science and technology is important in meeting agency operational require- ments. VII-5 Table 7—1. — Current roles of the Federal, academic, and industrial sectors in marine science and technology 1 Activity Federal Government Academic institutions Industry Research: Lead and support the Nation's overall marine science and technology program. Fund basic and applied research at aca- demic institutions. Provide "big science" facilities, including support of the oceanographic fleet and national laboratory facilities. Conduct problem-oriented applied and basic research within the mission agencies. Promote interdisciplinary research with problem-focus and provide managerial leadership for major problems of national interest. Innovation of technology: Develop scientific, exploratory, and sur- vey information. Undertake appropriate engineering devel- opment in certain high-risk, high-priority areas that are in the national interest and where private sector probably would not invest. Disseminate information, including map- ping and charting products and data, and transfer technology to appropriate users. Provide limited technological and advisory services, including mapping and charting, to promote innovation and development in the private sector. Education: Provide support to academic institutions for ocean-related R&D that serves a dual function for graduate and undergradute training. Fund programs for developing academic capabilities in marine R&D. Commercialization: Provide an academic atmosphere, scholarly competence, and infrastruc- ture for research and education. Initiate and perform basic research funded with Federal and nongovern- mental funds. Undertake a balanced proportion of appropriate applied, problem-oriented R&D. Support and conduct sufficient basic research to achieve en- trepreneurial goals. Perform applied research necessary for commercial purposes. Address appropriate multidisciplinary, regional R&D problems that are less than national in scope. Develop technology through processes of innovation to produce a commercially mar- ketable commodity or service. Provide graduate and undergraduate training in the ocean-related sciences and engineering. Supply entrepreneurial factors to implement the commercial use of the product. i NOTE: This table outlines the more important roles of the Federal Government, academic institutions, and industry. The natural roles of the three sectors are neither as limited nor compartmentalized as shown. The States are minimally involved in R&D, but omitted from the table. They use research findings and technological developments in management and regulatory decisions. VI 1-6 National Research Facilities The agencies of the Federal Government are orga- nized to provide services and regulate activities that achieve national goals. In agencies whose missions require a high degree of science and technology, research and development is a major component of many programs. Many of the agencies having ocean- related missions are in this category. While no clear distinction can be made between the research objectives of the Federal mission agen- cies and the university research enterprise, their respective roles have been described in terms of the dichotomy between applied research — the role of the Federal laboratories — and basic research — the primary role of the universities and academic re- search institutions. Actually, the basic and applied functions tend to be commingled in Federal, univer- sity, and industrial laboratories, and each contributes to the "whole" of science and technology, notwith- standing their traditionally described roles. Thus, it is neither useful nor accurate to attempt to define the respective roles of the Federal, university, and private sectors on the basis of either basic or applied research. Federal Research Laboratories Established to support the mission research of the Federal agencies, Federal research laboratories are the focal point for the in-house research programs of the ocean agencies (table 7-2). Federal laboratories range from small, single-purpose research facilities associated with academic institutions, to regional field facilities focusing on local problems. Some, such as the national laboratories operated by the Department of Energy and the NASA laboratories, are vast research complexes with broad research missions that require sophisticated equipment and high capital cost. The number of Federal laboratories increased dramatically during World War II, and in the post- war period as the Nation undertook a massive R&D program and sought to solve its environmental prob- lems. Although some Federal laboratories conduct basic investigations in areas of agency interest, most of their work is problem-oriented to meet mission requirements. In 1974, the investigating staff of the House Com- mittee on Appropriations cited a number of ex- amples of laboratory management that "clearly depict the underutilization, overbuilding, and dupli- cation of facilities and programs plaguing the Government's research efforts." 7 The staff singled out the Department of Defense as the only agency centrally identifying in-house research and develop- ment resources and activities. Since 1966, the annual management analysis of the Director of Defense Research and Engineering has included compre- hensive data on funding, manpower, and facilities, as well as brief descriptions of each activity's mis- sion, current problems, functions and equipment capabilities/ In contrast, the Appropriations Com- mittee staff found that neither the Department of Commerce nor the National Oceanic and Atmos- pheric Administration (NOAA) had long-range facility planning mechanisms. 9 In response to the findings of the House Appro- priations Committee investigation, NOAA formu- lated a long-range plan for its laboratory facilities. The Facilities Master Plan, completed in January 1975, describes the condition of the physical plant and equipment of each facility and assesses the need to update or otherwise improve the operation, in- cluding time and cost factors involved. Problems similar to those raised by the Appropri- ations Committee investigation were identified by the Stratton Commission, which concluded that many in-house laboratories were "too small to mount effective programs" and recommended "strengthen- ing them by adequate funding and staffing." The Commission suggested that there be a "selective consolidation of marginal laboratories." 10 Since that time, NOAA's National Marine Fisheries Serv- ice (NMFS) and the Navy, the two organizations operating the greatest number of laboratories, have consolidated several laboratories and closed others. NOAA Laboratories The most extensive agency network of marine science laboratories is that of NOAA, whose NMFS has 26 laboratories distributed along all the Nation's coasts. Four of these laboratories are engaged in the improvement of fishery products technology, and one is involved in developing techniques for aqua- culture. The remaining laboratories, coupled with the NOAA fisheries research fleet, perform basic biological and environmental research as well as applied fisheries investigations. In addition to the NMFS laboratories, 14 labora- tories are managed by six other NOAA mission elements: The Environmental Research Laboratories (ERL), the National Ocean Survey (NOS), the National Environmental Satellite Service (NESS), the Office of Ocean Engineering (OOE), the National Weather Service, and the Environmental Data Service. Seven of the fourteen are ERL laboratories. ERL facilities are, in most instances, located at 7 U.S. Congress, House Committee on Appropriations. Utili- zation of Federal Laboratories. Hearings before the Subcom- mittee on Agriculture-Environmental and Consumer Protection 93d Congress, 2d Session, Pt. 6 p. V. III. * Ibid., p. 6. 9 Ibid., p'. 28. i" Our Nation and The Sea, op.cit. note 6, p. 29. VII-7 Table 7-2. — Federal laboratories conducting research related to marine science and engineering Department or agency facility and location Function DEPARTMENT OF COMMERCE (DOC) National Oceanic and Atmospheric Administration (NOAA) National Marine Fisheries Service (NMFS) Northwest and Alaska Fisheries Center Seattle, Wash. Northwest and Alaska Fisheries Center, Marine Mammal Division, Seattle, Wash. Auke Bay Fisheries Laboratory Auke Bay, Alaska Kodiak Laboratory, Kodiak, Alaska Seattle Laboratory, Seattle, Wash. Southeast Fisheries Center, Miami, Fla. Pascagoula Laboratory, Pascaguola, Miss. National Fisheries Engineering Laboratory, Bay St. Louis, Miss. Galveston Laboratory, Galveston, Tex. Panama City Laboratory, Panama City, Fla. Research on living marine sources in temperate and subarctic North- east Pacific Ocean. Research on northern fur seal of Pribilof Islands. Research directed toward establishing limits and biological productiv- ity of living marine resources in waters adjacent to Alaska. Studies on problems related to fish and shellfish processing and qual- ity and studies of parameters affecting mortalities during live holding of crab. Research and development on improved use of marine resources. Conducts fishery, biological, oceanographic, and chemical research. Conducts resource surveys and biological fisheries research to assess underutilized fisheries resources. Advance fishery technology. Shrimp aquaculture research and technology. Research on biology and ecology of coastal marine fishes. Port Aransas Laboratory Port Aransas, Tex. Beaufort Laboratory, Beaufort, N.C. College Park Laboratory, College Park, Md. (relocating to Charleston, S.C. 3/78) Northeast Fisheries Center Woods Hole, Mass. Narragansett Laboratory, Narragansett, R.I. Milford Laboratory, Milford, Conn. Oxford Laboratory, Oxford, Md. Sandy Hook Laboratory, Highlands, N.J. Gloucester Laboratory, Gloucester, Mass. National Systematics Laboratory Washington, B.C. Atlantic Environmental Group Narragansett, R.I. Biology and ecology of coastal marine fishes. Resource evaluation of Atlantic and Gulf menhaden and marine fishes of natural and artificial reefs. Research in fishery technology. Research and development relating to stocks of fish supporting sport and commercial fisheries in Northwest Atlantic. Basic research in larval fish and invertebrate physiology and taxonomv and gamefish ecology. Determine effects of environmental factors on marine resources of New England waters. Fishery biology and management; diseases, pathology, ecology and life history. Research in marine fisheries, biological oceanography and estuarine ecology. To improve quality, quantity and variety of marine products reaching the consumer. Research on taxonomy of selected kinds of marine and aquatic or- ganisms. Conduct marine environmental studies, provide oceanographic and meteorological data, and interpret data and interrelationships for use in fisheries and environmental forecasting. VII-8 Table 7-2. — Federal laboratories conducting research related to marine science and engineering (continued) Department or agency facility and location Function DEPARTMENT OF COMMERCE (DOC) National Oceanic and Atmospheric Administration (NOAA) Southwest Fisheries Center, La Jolla, Calif. Research and management studies for commercial and sport fisheries. Honolulu Laboratory, Honolulu, Hawaii Tiburon Laboratory, Tiburon, Calif. Pacific Environmental Group Monterery, Calif. National Seafood Quality and Inspection Laboratory, Pascagoula, Miss. Study of high-seas tropical pelagic fishery resources. Conducting studies on living resources and their environment of coastal waters of Southwest Region of NMFS. Conduct marine environmental studies, provide oceanographic and meteorological data, and interpret data and interrelationships for use in fisheries and environmental forecasting. Conduct and coordinate chemical, physical, microbiological, public health, nutritional, engineering, and food-processing research studies to provide measurements and standards of seafood quality and sanitary handling. Environmental Research Laboratories (ERL) Boulder Environmental Research Laboratories, Boulder, Colo. Pacific Marine Environmental Laboratory Seattle, Wash. Joint Tsunami Research Effort Honolul, Hawaii Atlantic Oceanographic and Meteorological Laboratories, Miami, Fla. Geophysical Fluid Dynamics Laboratory Princeton, N.J. National Hurricane and Experimental Mete- orology Laboratory, Miami, Fla. Great Lakes Environmental Research Laboratory, Detroit, Mich. National Ocean Survey (NOS) Geodetic Research and Development Laboratory, Rockville, Md. Enginering Development Laboratory — Ocean Engineering Branch, Miami, Fla. Engineering Development Laboratory Rockville, Md. Office of Ocean Engineering (OOE) NOAA Data Buoy Office Bay St. Louis, Miss. National Environmental Satellite Service (NESS) Spacecraft Oceanography Project Suitland, Md. Research related to lower and upper atmosphere, space environment, and solid earth. Research toward a fuller understanding of ocean basins and borders. Research on transfer of earthquake energy to tsunami energy and propagation. Research on ocean basins and borders, oceanic processes and ocean- atmospheric interactions. Investigations of dynamics and physics of geophysical fluid systems. Develops experimental methods to change atmospheric processes arti- ficially and in a reproducible manner. Define present condition of Great Lakes. Carries out research and development in geodesy in support of opera- tions directed towards improving accurate determination of earth's configuration and distributing of mass. Development of ocean structures and platforms in support of data acquisition of NOAA. Provides design, development, and test of data acquisition and process- ing systems for use in ocean environment. Research, development, test and evaluation of a spectrum of data buoys with sensors, power supplies, hull sizes, and data processing and communications systems. Research and development in application of aerospace remote sensing techniques to oceanography. VII-9 Table 7-2. — Federal laboratories conducting research related to marine science and engineering (continued) Department or agency facility and location Function DEPARTMENT OF COMMERCE (DOC) National Oceanic and Atmospheric Administration (NOAA) National Weather Service (NWS) Hurricane ocean surge research and development. Techniques Development Laboratory Silver Spring, Md. Environmental Data Service (EDS) Center for Experiment Design and Data Analysis (CEDDA), Washington, D.C. Maritime Administration (Mar Ad) National Maritime Research Center Kings Point, N.Y. Provides data management, interpretation, and analysis to meet na- tional and international needs for atmospheric and marine environ- mental assessment. Support of Maritime Administration through test and evaluation of systems and components. DEPARTMENT OF DEFENSE (DOD) U.S. Army Coastal Engineering Research Center Washington, D.C. Waterways Experiment Station Vicksburg, Miss. Chesapeake Bay Hydrolic Model Kent Island, Md. Provides research and development assistance in accomplishment of civil works programs of Corps of Engineers. Conduct models of estuaries and other seashore areas for the study of local water processes. Study Chesapeake Bay water processes. U.S. Navy Civil Engineering Laboratory Port Hueneme, Calif. Naval Research Laboratory Washington, D.C. Naval Ship Research and Development Center, Bethesda, Md. Naval Coastal Systems Laboratory Panama City, Fla. Naval Submarine Medical Research Laboratory, Groton, Conn. Naval Underwater Systems Center Newport, R.I. Naval Arctic Research Laboratory University of Alaska Barrow, Alaska U.S. Naval Oceanographic Office Bay St. Louis, Miss. Naval Ocean Research and Development Activity, Bay St. Louis, Miss. The principal Navy research, development, test, and evaluation center for shore and sea floor facilities and support of Navy and Marine Corps construction forces. Conduct scientific research and development in physical sciences and related fields directed toward new and improved materials, equipment and techniques, and systems for the Navy. The principal research, development, test, and evaluation center for Naval vehicles; also provides support for the Maritime Administration and the maritime industry. Application of science and technology associated with military opera- tions carried out primarily in coastal regions. Conducts medical research and development a: it relates to sub- marine, shipboard, and diving environments. Principal Navy research, development, test, and evaluation center for underwater weapons systems. Provide facilities and services for accomplishing those programs of basic and applied research which contribute to successful Navy opera- tions in arctic regions. Collect, analyze and display oceanographic data in support of fleet operations and shore establishments; improve methods of ocean- ographic prediction, data collection, and data analysis; perform other related research, development, testing, and evaluation. Provide a full spectrum of ocean science support for Navy research and development programs; provide ocean science program manage- ment in oceanographic research and development; develop and recom- mend an annual Navy plan in ocean science; conduct related research and development programs. VII- 10 Table 7-2. — Federal laboratories conducting research related to marine science and engineering (continued) Department or agency facility and location Function DEPARTMENT OF DEFENSE (DOD) U.S. Navy Naval Environmental Prediction Research Facility, Monterey, Calif. Navy Medical Research Institute Bethesda, Md. Naval Air Development Center Warminster, Pa. Naval Ocean Systems Center San Diego, Calif. Naval Ordinance Laboratory, White Oak, Md. Applied Research Laboratory Pennsylvania State University University Park, Pa. (not Navy-owned; under continuing Navy contract) Applied Physics Laboratory University of Washington, Seattle (not Navy-owned; under continuing Navy contract) Ocean environmental prediction modeling research. Environmental health effects studies and analyses; contributes to Navy underwater operations. Engineering research, development, and testing in support of weapons systems. Conducts research, development, testing, and evaluation of systems and techniques to improve the effectiveness of Navy ocean operations. Studies hardware responses to environmental factors in support of weapons systems. Research and development in underwater systems for torpedos, hydro- dynamics, and acoustics. Research, development, test, and evaluation in areas of acoustics, targets and training devices, acoustic lenses, ocean physics and ocean engineering. ENVIRONMENTAL PROTECTION AGENCY (EPA) Western Fish Toxicology Field Station Corvallis, Ore. National Marine Water Quality Laboratory Narragansett and West Kingston, R.I. Gulf Breeze Environmental Research Laboratory, Gulf Breeze, Fla. To develop toxicology data for anadromous fishes and their food organisms indigenous to Pacific Northwest Region, with major em- phasis placed on measuring safe levels for salmon. To determine water quality requirements for use of marine waters and to recommend water quality criteria. To conduct and manage research on ecological effects of pesticides and other hazardous organisms. DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE (HEW) Food and Drug Administration (FDA) Gulf Coast Technical Services Unit Dauphin Island, Ala. Provide technical assistance to States and regional offices and conduct research on public health aspects of shellfish sanitation. DEPARTMENT OF THE INTERIOR (DOI) Fish and Wildlife Service (FWS) Fish Pesticide Research Laboratory Columbia, Mo. Ashland Biological Station, Ashland, Wis. Sandusky Biological Station, Sandusky, Ohio Tunison Laboratory of Fish Nutrition Cortland, N.Y. Western Fish Disease Laboratory Seattle, Wash. Research on effects of pesticides on fishes. Lake trout assessment, lake trout-sea lamprey relationships, life his- tory studies on brown trout, and limnology studies. Research on heavy metals in Lake Erie fishes, age and growth studies on walleye. Fish population assessment in Lake Ontario. Research on Atlantic salmon and lake trout toward development of improved diets for production of better fish. Research on nature and prevention of communicable diseases in west- ern salmon and trout. vn-ii Table 7-2. — Federal laboratories conducting research related to marine science and engineering (continued) Department or agency facility and location Function DEPARTMENT OF THE INTERIOR (DOI) Fish and Wildlife Service (FWS) Great Lakes Fishery Laboratory Ann Arbor, Mich. Southeastern Fish Control Laboratory Warm Springs, Ga. Hammond Bay Biological Station. Millersburg, Mich. Western Fish Nutrition Laboratory Cook, Wash. Abernathy Salmon Culture Development Center. Longview, Wash. Research to delineate physical and biological parameters of Great Lakes, including fish population dynamics. Develop analytical methods for determining residues of fish control agents in fish. Toxicity studies on lamprey larvicide TFM. Research on sea lamprey control, utilizing both chemical and bio- logical methods. Research on nutritional needs of western salmon and trout. Develop improved method of culturing fish (primary emphasis on Pacific salmon). U.S. Geological Survey (USGS) National Center, Reston, Va. Geologic Division, Office of Marine Geology, Reston, Va. Branch of Atlantic - Gulf of Mexico Marine Geology, Quissett Campus, Woods Hole Oceanographic Institution, Woods Hole, Mass. Field Office, Corpus Christi, Tex. Branch of Pacific - Arctic Marine Geology, Menlo Park, Calif. Conservation Division, Reston, Va. Eastern Region, Washington, D.C. Gulf of Mexico Region, Metarie, La. Western Region, Menlo Park, Calif. Performs surveys, investigations, and research covering topography, geology, and mineral and water resources of the United States. Investigations of marine geological resources and environment. Investigations of the geological resources and environments of the Atlantic continental shelf. Investigations of the geological resources and environments of the Gulf of Mexico continental shelf. Investigations of the geological resources anad environments of the Pacific and Arctic continental shelf. Classification and evaluation of mineral resource potentials of offshore Federal lands. Supervision of offshore mineral development and ex- traction operations on leased Federal lands. Classification and evaluation of mineral resource potentials of Atlantic offshore Federal lands. Supervision of Atlantic offshore mineral de- velopment and extraction operations on leased Federal lands. Classification and evaluation of mineral resource potentials of Gulf of Mexico offshore Federal lands. Supervision of Gulf of Mexico off- shore mineral development and extraction operations on leased Fed- eral lands. Classification and evaluation of mineral resource potentials of Pacific offshore Federal lands. Supervision of Pacific offshore mineral de- velopment and extraction operations on leased Federal lands. DEPARTMENT OF TRANSPORTATION (DOT) U.S. Coast Guard (USCG) Research and Development Center Groton, Conn. Fire Test Facility, Mobile, Ala. Research and development, test and evaluation of techniques, equips ment, systems and materials in support of Coast Guard operational missions. Test and evaluate commercial and recreational boating safety equip- ment and methodology. VII-12 Table 7-2. — Federal laboratories conducting research related to marine science and engineering (continued) Department or agency facility and location Function DEPARTMENT OF ENERGY (DOE) Knolls Atomic Power Laboratory Schenectady, N.Y. Brookhaven National Laboratory Upton, N.Y. Lawrence Livermore Laboratory Livermore, Calif. Hollifield National Laboratory Oak Ridge, Tenn. Pacific Northwest Laboratory Richland, Wash. Savannah River Laboratory Aiken, S.C. Argonne National Laboratory Argonne, 111. Performs engineering, research and development work relate i to de- sign, improvement and operation of nuclear power plants suitable for naval vessels. Research in the physical and biological sciences and engineerir ;. Fundamental and applied research and development related to ni> lear sciences and use of atomic energy. Conducts an interrelated program in nuclear medical research. Energy technology, materials research and development, ph\ ;ical sciences, life sciences, environmental research and nuclear wea ions development. Research and development in support of present and future Savannah River products. Applied and basic aspects of nuclear research. NATIONAL AERONAUTICS AND SPACE ADMINISTRATION (NASA) Goddard Space Flight Center Greenbelt, Md. Jet Propulsion Laboratory Pasadena, Calif. Langley Research Center, Hampton, Va. Lewis Research Center, Cleveland, Ohio National Space Technology Laboratories Earth Resources Laboratory, Bay St. Louis, Miss. Wallops Flight Center, Wallops Island, Va. Development and demonstration of applications of visible, infrared, and passive microwave aerospace remote sensing technology to sea ice, living marine resources, and coastal zone processes monitoring. Development and demonstration of applications of active microwave aerospace remote sensing technology to measurements of sea state conditions and sea ice. Research and development of multispectral visible aerospace remote sensing technology for applications to surveys of living marine re- sources and the quality of the coastal water environment. Demonstration of, and transfer of active microwave aerospace ice cover remote sensing technology to Federal agencies for operational use in obtaining ice conditions in the Great Lakes and Alaska coastal waters. Demonstrate to, and train other agency personnel in the use of multispectral visible and infrared aerospace remote sensing technology for coastal zone land utilization and wetlands mapping. Development and demonstration of applications of aerospace radar altimeter technology to mapping of ocean surface topography and measurements of sea state conditions. leading universities and perform research in oceanog- raphy, limnology, meteorology, upper atmosphere and space physics, and remote sensing of the atmos- phere and ocean. In-house activities are supple- mented by research sponsored through contracts and grants. At the request of the NOAA Administrator, the Ocean Sciences Board of the National Academy of Sciences reviewed NOAA's R&D program. From May 1975 to May 1976, review teams were sent to a number of NOAA laboratories. These teams eval- uated the quality of research done by NOAA labora- tories and assessed the effectiveness of the labora- tories in terms of equipment, facilities, personnel, management, and quality of research. The academy report, released in late 1977, included analyses of the strengths and weaknesses of each laboratory visited and recommendations to improve their effec- tiveness. 11 11 National Academy of Sciences. The Ocean Research and Development Progi Washington, D.C., 1977. Quality of NOAA's o «t — © oo -* u-C 2 < u ~- >/-> — r- — r*i — O ^- — HI ' E m n-> — ■ _ — »/-, *o — -tf — == «J • = E E # U H S co W £ U S VIII-2 o ac o. 3 U 3 ■O c E >. _c a E I ao s a, g §•8 1 CI m \D in t^ O t^ <-■ c- — i ^ rj — :> — ■* i/-, — — o — r«l — _ vO — r*i — « ~ w v ^ ,v * Figure 8-1. — Marine employment by industry in 1975 and projected for 1980. Employ- ment in thousands. Source: Edward F. Mackin and Roger D. Anderson. "Marine Manpower: An Initial Assessment." Marine Technology Society Journal 10(4): 26-37, May 1976. VIII-4 tional defense and economic development. Trained manpower — marine and otherwise — has seemed par- ticularly important both because of the rapid growth of the country, with the accompanying labor short- ages, and because of continuing changes in both military and civilian technology. This belief also reflects the idea, voiced most forcefully by Thomas Jefferson, that widely available education is vital to the development of a free society. Education is seen as the main vehicle for ensuring equal oppor- tunity, as well as one way to produce the informed and "enlightened" citizenry that is seen as vital for a healthy democracy. This idea of an informed and active citizenry is still very much with us, as seen in the recent public participation movement, which is affecting the marine field as well as elsewhere. Americans thus have long supported the concept of public education. 2 In addition, education policies also have reflected a second strong belief — the prin- ciple that public education primarily should be the responsibility of State and local governments and not the Federal. This has been partly for pragmatic reasons, particularly that State and local efforts can meet local needs better than the central Government in Washington, and partly for philosophical reasons based on the idea of federalism — a belief that edu- cation should be controlled at the lowest govern- mental level practical. Yet, there have long been important qualifications to this principle of State and local control, and over the years they have led to a strong Federal role in several parts of this Nation's educational system. One important early theme was the role of the Federal Government as an employer and often fur- ther trainer of the professionals needed to staff the Federal agencies. The new Nation was large, un- developed, and in many places even unexplored, and from the earliest days of the republic the Federal Government was involved in surveys, public works, and other activities related to national development. 3 The Coast and Geodetic Survey (now the Na- tional Ocean Survey within NOAA) was the first important such agency in the marine field. As early as 1795, the Third Congress found that large sec- tions of the Atlantic Coast were inadequately sur- veyed. After further debate, the Coast and Geodetic Survey was created by the Ninth Congress in 1807. The National Ocean Survey continues to hire and help train marine scientists and other professionals. 4 2 Encyclopedia Britannica, 1914 edition. "Education, History of," by Adolphe E. Meyer and others. Macropedia 6: 365-367 381-383. 3 See chapter V, Marine Transportation, for a discussion of early Federal involvement in the development of the Nation's marine transportation infrastructure. 4 U.S. Department of Commerce. Annual Report of the Secre- tary of Commerce. Washington, D.C., Government Printing Office, 1976, p. 102. Then, in 1871, President Grant signed a bill es- tablishing an Office of Commissioner of Fish and Fisheries, creating an important source of employ- ment and further training for early fisheries special- ists. In 1885, the Commissioner established his headquarters at Woods Hole, Mass., creating the nucleus for a center of marine research and edu- cation. •' A second aspect of the Federal role in education goes back to the beginning of the 19th century and the need for trained military officers. Since national defense was a Federal responsibility under the Con- stitution, President Jefferson was able to persuade Congress, in 1802, to establish a United States Mili- tary Academy at West Point. This was the first time that Federal funds were used in direct support of higher education. The Naval Academy was estab- lished in 1845, and the Coast Guard Academy in 1876, confirming a national policy for training a sea-going officer Corps. Later naval reserve officer training programs were started at civilian colleges and universities. The research and training done by armed forces and their academies helped meet civilian as well as military needs. Among other things, West Point was the Nation's first engineering school, and in 1824 the Army Civil Works Program was established for river and harbor projects. In the 1830s a young naval officer, Matthew Maury, made pioneering studies of winds, currents, and hydrology while on ocean voyages. In 1842, he was placed in charge of the Depot of Charts and Instruments, out of which grew two important centers of marine study and training, the U.S. Naval Observatory and the Hy- drology Office. Today the Navy continues to train marine specialists; many of the people now in the civilian ocean agencies, universities, and private companies at one time or another received training or experience while working with the Navy. A third major theme of the Federal role in edu- cation also developed around 1 800 — the principle that limited Federal assistance to States and localities is appropriate in certain cases where State resources are lacking. First, the Ordinance of 1787 reserved a plot of land in every prospective township west of the Alleghenies for the support of education, a step that became a precedent for national educational aid. Then, in 1862 the Morrill Act granted public land to every State establishing a public agricultural college. While the aim was to support agriculture and mechanics, the Act not only set a precedent for Federal support of civilian higher education, but also provided the model for the Sea Grant Program of a century later. 6 s Ibid., pp. 108-109. 6 Adolphe E. Meyer and others, op cit. note 2, p. 365. VIII-5 Federal assistance to State maritime academies began in 1874, initially in the form of Federally supplied ships. The idea of limited Federal assistance to voca- tional education was incorporated in the Smith-Lever Act of 1914 and subsequent acts leading up to to- day's Vocational Education Act of 1963, as amended in 1967 and 1976. While most of the themes of Federal involvement in education were in place by the early years oi the 20th century, it was the First and Second World Wars that modified and extended these ideas and led directly to today's Federal programs. Maritime officer education was the first area af- fected. The importance of a strong merchant marine to national defense had long been a major theme of American policy. 7 and the shortage of trained merchant marine officers during and after World War I was considered serious. The result was a 1938 decision to extend the service academy concept and create a national merchant marine academy at Kings Point, N.Y. Later, in 1958, the Federal role was expanded still further with the decision to provide financial assistance to State maritime academies. Then during World War II the theme of general aid to higher education was expanded dramatically- Rapid changes in military technology and the in- creasing importance of scientific research on weap- onry made military research an important part of the national defense effort. The Nation's civilian universities became a major focus for this research, as well as the main training grounds for the scientists and engineers who performed such work. Large amounts of Federal money began going to universi- ties, though as before, the Federal Government's role was one of financial assistance, not direct opera- tion of the schools. Marine education, like other fields, became highly science oriented, with a heavy orientation toward research for military applications. Today Federal funding of research — and the research assistantships which help support and train many graduate students — is a central feature of American higher education. In the 1950s and 1960s new programs were added as the Federal Government took on further respon- sibilities. The creation of the National Science Foun- dation (NSF) in 1950 reflected a new emphasis on basic research and the training of researchers, both seen as important not only to military innovation, but also to the general advancement of knowledge and economic growth. Today NSF is the Nation's largest single source of funding for basic oceano- graphic research and associated graduate student education. Then in the 1960s, the space program and health research programs reflected a new emphasis on the value of mission-oriented civilian research. Enacted in 1966, the National Sea Grant College and Program Act established a similar system of support for applied research and education in ocean fields, based on what the Morrill Act did for agri- cluture. (See chapter VII, Marine Science and Tech- nology.) By the late 1950s, NSF had expanded its pro- grams to improve science education to the elemen- tary and secondary levels, starting a precedent for Federal assistance in improving precollege curricu- lum and teaching. Today, the Sea Grant Program and others engage in similar activities to improve precollege marine education. Finally, the marine area has been affected by the new theme of public participation in Government decisionmaking, a theme which has grown to prominence largely as a result of the environmental movement. Ocean agency programs have gone be- yond providing information to seeking new ways to involve the public in policy formulation. Organization of the Chapter The following sections will examine these Federal marine and maritime policies for education and em- ployment. U.S. policy on these subjects is divided into four broad categories of Government activity: (1) Federal policies toward higher education and the training of marine professionals; (2) maritime officer education; (3) marine and maritime vocational training; and See chapter V, Marine Transportation. (4) Federal activities for educating the public, in- cluding precollege marine education as well as public information and public participation programs. Each section includes a consideration of the back- ground and major justifications for Government involvement, an assessment of current policy, and a description of the present policymaking system. In addition, a brief discussion of some of the major contemporary policy issues in each area is included. VI 1 1-6 Education and Training of Marine Professionals Present Federal Policy Today Federal policy on the training of marine professionals seems guided by three general ideas. * First, Federal programs are intended to help ensure that the Nation has the professionals it needs, par- ticularly scientists and engineers to perform research important to national defense and general economic development. Second, the Federal effort has been tailored to fit within the existing, largely decentralized framework of American higher education. It has not been Federal policy to take over the operation of State and private schools or to establish alternative, nonuniversity centers for the training, though some advanced training of professionals is still provided within the Navy, the Coast Guard, and the civilian ocean agenies. Third, a more recent development in the marine fields, as elsewhere, is the new emphasis on training public policy specialists, including marine lawyers, economists, analysts, and planners. It is important to note that the Federal Govern- ment is only one of several groups which determine the Nation's marine education policies. Others in- clude the professional societies of scientists and engi- neers, State governments, and the universities them- selves. However, the Federal role is central, because of the importance of its financial support. Federal Support The importance of ensuring adequate numbers of scientific and technical personnel first was articu- lated in the creation of the Office of Naval Research and later in the National Science Foundation (NSF) Act of 1950. The 1950 Act, among other things, authorized NSF to provide fellowships and training grants to graduate students. A key assumption behind this policy is the presumed connection between trained scientific manpower and the national R&D capability. One of NSF's major responsibilities "is to assure an adequate supply of highly trained young scientists to maintain the strength of the Nation's scientific research capabilities . . ." 9 Research, in turn, has been supported because of the role applied research can play in meeting civilian and defense needs and because of the role basic research plays in laying the groundwork for applied efforts. 10 Most, though not all, Federal assistance to graduate stu- dents comes indirectly, in the form of research assist- antships rather than direct fellowships or loans. The Sea Grant College and Program Act of 1966 also mentioned the importance of trained profession- als. Section 1121(b) of the Act stated "that it is the national interest of the United States to develop the skilled manpower, including scientists, engineers, and technicians, and the facilities and equipment neces- sary for the exploitation of these [marine] re- sources. . . ." Historically, this emphasis on linking education to research has resulted in young science and engineer- ing professors being trained more as researchers than as teachers, though since 1952 NSF has operated some summer institutes for the advanced training of college teachers. 11 Today the program is known as the NSF Chautauqua-Type Short Courses for College Teachers, conducted by the American Association for the Advancement of Science with support from NSF. In the 1960s, there was concern about the perceived lack of good marine science teachers. For example, in 1969 the staff of the Stratton Commission's Panel on Education, Manpower, and Training observed: 12 "In the past, most funds in marine science and technology went into research; not enough have gone into teaching, with the result that the Nation is now short of com- petent teaching personnel." But in recent years there has been little discussion of teacher shortages, perhaps because graduate school programs expanded in the late 1960s, producing addi- tional teachers as well as more researchers. Also, over the years the Sea Grant program has improved college-level marine education through its curriculum development efforts. Role of the Universities Until the Second World War, almost all Govern- ment-sponsored research — and much advanced train- ing associated with it — went on in Government labo- ratories; to this day large laboratory systems are maintained by the National Oceanic and Atmospheric Administration (NOAA), the Navy, and other Fed- eral agencies ranging from the Department of Agri- culture and NASA to the Veterans Administration. Yet, for many years the Government has relied on outside institutions to provide the basic training for 8 This section discusses scientists, engineers, and policy special- ists. Maritime officers, another important group of marine pro- fessionals, are discussed in the next section. 9 U.S. National Science Foundation. National Science Founda- tion Annual Report 1975. Washington, D.C., Government Print- ing Office, 1975, p. 83. 10 See chapter VII, Marine Science and Technology. 11 U.S. Congress, House Committee on Science and Technology. The National Science Foundation and Pre-College Science Edu- cation: 1950-1975. 94th Congress, 2nd Session, Serial T, Wash- ington, D.C., Government Printing Office, 1976. 13 Panel Reports of the Commission on Marine Science, Engi- neering, and Resources, Volume 1, Science jnd Environment, Part IV, Report of the Panel on Education, Manpower, and Training. Washington, D.C., Government Printing Office, 1969, p. IV-8. VIII-7 its scientific and technical professionals, a policy reinforced by this century's emphasis on formal higher education and degrees and by the post-World War II use of the universities as large-scale centers for both research and the training of researchers. The American concept of the university played a major role in this development. American higher edu- cation has long been flexible and willing to start new programs. During and after World War II the uni- versities were able to expand their graduate programs to meet the Nation's personnel needs. Furthermore. American universities were well prepared to produce what the Government needed most: researchers. Un- like some other countries, for example France, Ameri- can universities have long combined research and graduate education in the same institution. This goes back to 1867 and the creation of Johns Hopkins University. Inspired by the scholarly accomplishments of German universities, Hopkins put its emphasis on research, a precedent which greatly influenced the early graduate school programs that were created in the late 19th century. 13 This emphasis on combining research and educa- tion in the same institution has certain implications. One is that many of the Nation's best scientists — the university professors — are not involved in full-time research, because they spend some time teaching. Yet, it is an advantage from the Government's point of view that this also means that young scientists are well trained and active in research while still in school. The number and types of assistantships supported by the Government's research programs have impor- tant implications for professional education. One is that students are trained in those specific areas where funding is available during their graduate years. This is beneficial in the sense that they are prepared for research in areas of interest to the Government and where there may be jobs in the future. Problems re- sult, however, if Government priorities exclude some important area, or if the agencies shift funding pri- orities rapidly, thus training people in fields where subsequently they may not be employable. There is concern that some marine areas are being neglected. For instance, in ocean engineering some feel that Federal research programs have funded re- search and education adequately in certain areas (ship hydrodynamics) and not in others (ship structures and marine propulsion and control systems) . Be- cause post-masters degree studies usually can be sup- ported in an academic institution only if the related research is externally funded, these research policies affect education significantly. " Federal research poli- cies and priorities continue to influence greatly what kinds of marine professionals are trained in this country. There is also some concern that an overemphasis on research exists, at the expense of undergraduate teaching. 15 Some other observers are concerned about the present health of the university-based educational system. Professor Alyn Duxbury of the University of Washington has voiced concern about the lack of standardization in the marine science programs which now exist around the country, especially the fact that there are two kinds of programs. One is essentially based on traditional disciplines, e.g., physics, chem- istry, and biology, the other is marine science- oriented, and students from one sometimes have difficulty in applying to the other. He suggests, "that an inter-institution academic group rise to the chal- lenge of bringing order and guidance to those pro- grams of marine science and to establish rules for standardizing course work programs in this field." 16 In addition, some professors in the marine field share the concern of their colleagues in other fields about the general problems now facing American universities. In particular, they feel that financial support is eroding and beginning to affect build- ing maintenance and laboratories, problems that do not show up immediately but can do harm in the long run. There also is concern that applied research is being overemphasized at the expense of basic work (See Chapter VII, Marine Science and Technology.) These are not strictly issues of Federal policy, because university funding comes from a variety of Federal, State, and private sources. But because Federal re- search policies play such an important role in uni- versity life and education, this concern does raise questions about the adequacy and course of present Federal policy. The marine scientific community is likely to raise this matter in the future. 17 There are also other implications of relying on universities to provide both research and personnel. One is that while academic departments are often isolated from each other, universities nonetheless offer opportunities both for interdisciplinary research (and the training that goes with it) and for inter- disciplinary courses. This point is especially relevant in light of the third, and still developing, policy objective in the field of marine professional training. Marine Affairs Growing concern about environmental damage to the oceans and increasing use of the ocean's food, energy, and mineral resources has affected both ocean " Adolphe E. Meyer and others, op. cit. note 2, pp. 366-367. " T. Francis Ogilvie. "Education for the Marine Industry," Marine Technology Society Journal 14: 225, July 1977. 13 Ibid., pp. 225-226. 10 Alyn C. Duxbury. "Marine Science Education — Some In- equities," in Marine Technology Society and Institute of Elec- trical and Electronics Engineers, Oceans '77 Conference Record 1: 22B-1 to 22B-2. " For a statement of general concerns about the health of U.S. basic research, see National Science Board, Science at the Bicen- tennial — A Report from the Research Community. Washington, D.C., Government Printing Office, 1976. See also P. M. Boffey, Science, 22 October 1976, pp. 409-410. VIII-8 policy in general and marine education in particular. The general effects can be seen in the new legislation on environmental protection and resource manage- ment passed during this decade, including the Coastal Zone Management Act of 1972 and the Fishery Conservation and Management Act of 1976. A parallel result is an emphasis on research and education in "marine affairs." This takes two forms. One is the training of marine lawyers, economists, analysts, planners, and managers who can handle the new tasks of environmental protection and manage- ment of marine and coastal resources. The other is to train marine scientists and engineers so they can deal with these new problems which involve policy considerations as well as scientific factors. The emphasis on training in marine affairs is re- flected in the Sea Grant legislation. For instance, the Senate Committee report on the 1976 revision of the Sea Grant Act called for the program to help "equip the United States for leadership in the oceans." 18 Present Marine Education System Today, some 160 colleges and universities have programs in marine science, ocean engineering, and related fields. 10 While it is difficult to get precise enrollment and budget statistics, it is clear that there is now a sub- stantial U.S. network of marine education programs. It is estimated that the number of students enrolled at any given time in marine graduate programs has been over 1,000 for the past two decades. 2 " The marine educational network trains not only American professionals, but also significant numbers of students from abroad, making the United States a leader in world marine education. Twelve schools are now designated as Sea Grant Colleges. While this title is largely honorary and carries no guarantee of continued funding by NOAA's Office of Sea Grant, it does indicate that the Nation now has a series of established marine research and education centers. In addition to the marine education programs, the marine field also draws upon scientists and engineers trained in the traditional disciplines of biology, engi- neering, geology, etc. This "transferability" of pro- fessionals between the marine and nonmarine fields has important implications. One is that the marine personnel system has considerable flexibility. People can move in and out of the field relatively easily during times of either high marine unemployment or shortages of marine personnel.- 1 Two other factors add to the flexibility of the sys- tem. Within certain limits, universities and colleges have the ability to contract, expand, or modify their enrollments as the job potential — and student inter- est — in a given field rises or falls. Also, if there is 1S U.S. Congress, Senate, Sea Grant Improvement Act of 1976, S. Report 94-848 to accompany S. 3165, 94th Congress, 2d session, 1976, p. 4. 19 U.S. Interagency Committee on Marine Science and Engi- neering, Federal Council for Science and Technology. University Curricula in the Marine Sciences and Related Fields: Academic Years 1975-1976, 1976-1977. 20 Dale F. Leipper. "Ocean Education: Where Now?" in Ma- rine Technology Society and Institute of Electrical and Electronic Engineers, Oceans '77 Conference Report 1: 22D-2. "National Academy of Sciences— National Research Council, Panel on Ocean Science Manpower Data. Ocean Science Man- power Data and Their Interpretation. Washington, DC 1971 pp. 3-6. a sudden rise in the demand for civilian marine per- sonnel, defense contractors and their skilled marine professionals can be called upon. The result is that the marine personnel system has strengths that help it keep the supply of professionals balanced with demand. Some observers, noting this, have concluded that the present educational system will be sufficient to meet the needs of any major new ocean efforts. For instance, the Stratton Commission said this in 1969 when discussing manpower .needs for its proposed national ocean program: -- "The Commission appreciates that its pro- posed national effort will require large numbers of well-educated, well-trained people. The majority view among those whom the Commission has consulted on manpower problems is that an exciting, broad-scale marine program will generate its own personnel. The personnel will come principally through transfer from land- based scientific, engineering, and technical specialties, but also through increased en- rollments in marine education and training programs. "The Commission does not imply that sup- port for ocean-related education and train- ing is unnecessary — only that it may be un- wise to tailor large new education and training programs to our present limited perception of future needs. Certainly some programs to extend the national capability for production of manpower are required, and such capability should be expanded or created. But, until it is possible to develop a better conception of future manpower needs, care must be taken not to overpro- duce manpower, particularly in fields in which transfer from land to sea activities is relatively simple." ■- Report of the Commission on Marine Science, Engineering, and Resources to the President of the United States and the U.S. Congress, by Julius A. Stratton, Chairman. Our Nation and The Sea — A Plan for National Action. Washington, D.C., Government Printing Office, 1969, p. 44. VIII-9 The Commission did recommend increased fund- ing for the Sea Grant program and NSF educational activities of that time, but it proposed no new large marine education efforts. Detailed information on marine manpower supply and demand is lacking (a point to be discussed later), but today there appear to be few complaints about either shortages or surpluses of marine professionals. Perhaps because of this, there seems to be little major criticism of the present university-based system for educating marine professionals. There is concern about funding, of course, and sometimes about spend- ing priorities, but there are few serious proposals to change either the organization of the universities or the way the Federal Government participates in marine education. One indication of this is that despite the concerns mentioned earlier and despite periodic amendments to existing legislation, this field has had no major new laws since the creation of the Sea Grant program in 1966. Three Major Federal Programs Several Federal agencies have higher education programs which affect marine training as well as education in other fields. For instance, the Office of Education in the Department of Health, Education, and Welfare administers the Higher Education Act, which provides fellowships, loans, and other assist- ance to college students. The Veterans Administra- tion operates the GI-Bill program. Of the several agencies involved in higher educa- tion, historically three have supported the marine field through major Federal programs: The Navy's Office of Naval Research (ONR), the National Sci- ence Foundation (NSF), and the Department of Com- merce's National Oceanic and Atmospheric Admini- stration (NOAA), which now operates the National Sea Grant Program. Also, the Department of Trans- portation funds a small program for graduate work for Coast Guard officers. Table 8-3 gives estimates of expenditures by these agencies for marine educa- tion in recent years (FY 1974, 1975, and 1976). Not included in the table are extensive Navy and NOAA programs of graduate-level education for their per- sonnel. The Department of Commerce figure is for Sea Grant educational activities, which include both research assistantships and efforts to develop college and pre-college curricula. The Department of De- fense figure is primarily for research assistantships related to ONR contracts with universities. The NSF figure is for fellowships and training grants to stu- dents in the marine sciences; it does not include re- search assistantships related to NSF grants and con- tracts. Office of Naval Research (ONR) ONR was created to support research — both at universities and within the Navy's own laboratories. However, over the years many graduate students have worked on ONR-sponsored projects, gaining training and experience in the process. ONR was the first major Government research organization established after World War II. It not only has had an enormous impact on marine science, but also has served as the model for other Federal programs funding university research and develop- Table 8-3. — Estimates of expenditures by Federal agencies for marine education in colleges and universities x Estimated by fiscal year: 1974 1975 1976 million dollars Education 10.1 11.3 11.3 Department of Commerce . 5.0 5.8 5.8 Department of Defense Military 4.1 4.5 4.6 National Science Foundation 2 0.7 0.7 0.6 Department of Transportation 0.3 0.3 0.3 1 Source: Science and Technology Policy Office, National Sci- ence Foundation. The Federal Ocean Program. Washington, D.C., Government Printing Office. April 1975, p. 87. - NSF figures do not include university research assistantships financed through Foundation grants and contracts. ment. It provided a timely infusion of money into American postwar science, and gave its university researchers a substantial amount of independence. It was willing to fund basic research and was sensi- tive enough to scientific norms to allow virtually all of the research it supported to be published in the open scientific literature. 23 The Navy's role in university research and attend- ant training was reduced in 1970, however, when the Congress passed the so-called Mansfield Amendment. This directed the military to stop financing any projects or studies in basic science unless they are closely related "to a military function or opera- tion." 24 ONR's mission and budget were sharply cut as a result, and NSF took on the responsibility of being the main Federal sponsor of basic research. Yet ONR continues to fund applied research projects 2:1 Daniel Greenberg. The Politics of Pure Science. New York and Cleveland, The World Publishing Company, 1967, pp. 134— 138. ■' Milton Lomask. A Minor Miracle: An Informal History of the National Science Foundation. Washington, D.C., Govern- ment Printing Office, 1975, p. 240. See also Chapter VII, Marine Science and Technology. VIII-10 at universities— some $26 million worth in fiscal year 1978. 25 There are no reliable statistics on the number of marine-oriented graduate students who have received part of their training — and financial support as well by working on ONR-sponsored projects. Nor is there any quantitative information on the degree to which ONR work has helped professors keep up with new developments, a factor which sometimes helps improve teaching and education. While ONR no longer plays the pivotal role it once did, its contri- bution continues to be significant. National Science Foundation (NSF) Created in 1950 as a result of the postwar faith in the value of basic research and a desire for a civilian focus for such work, NSF is assigned the task of improving both science and science education. Managed jointly by a National Science Board and a Director, NSF is now the Nation's major source of basic research support and non-biomedical fellow- ships and traineeships. In fiscal year 1978 the Foun- dation will spend about $14.7 million on the fellow- ship and traineeship programs, supporting about 1,800 graduate and postdoctoral students. 20 There is no "quota" regarding how many of these fellow- ships go to marine students or indeed to people in any particular field. Yet, historically, less than $1 million a year of this money has gone to students working on marine studies. NSF research programs, however, are aggregated by the various scientific fields. Marine programs are administered by the Foundation's Office of Astrono- mical, Atmospheric, Earth and Ocean Sciences. With an estimated fiscal year 1978 budget of $58.9 million, the Office's Ocean Sciences Program is the principal supporter of academic basic oceanographic research, U.S. participation in the International Decade of Ocean Exploration (IDOE), and the Nation's acad- emic research fleet. The general oceanography and IDOE programs supported 298 graduate students in FY 1972, 298 in FY 1973, 326 in FY 1974, 401 in FY 1975, and 389 in FY 1976. 27 In addition to these programs oriented toward research and graduate training, NSF also operates a program for undergraduate student-originated studies, one for undergraduate participation in uni- versity research, and the Chautauqua-type courses for upgrading the teaching skills of college professors. All three programs cover the full range of the sci- ences and basic engineering, including marine topics. While the university marine community would like more funding for these marine training and re- search programs, there appears to be little criticism of how NSF organizes and operates them. To the extent that there are political controversies, they deal with NSF operations in general, such as criticisms of the Foundation's peer-review system for judging and awarding funds. Sea Grant The Sea Grant program was created in 1966 by the National Sea Grant College and Program Act (Public Law 89-688), which authorized programs for education, research, and advisory services related to the development of marine resources. The pro- gram was created to meet a perceived need for fur- ther applied research and education in the marine field. The 1966 Act assigned Sea Grant to NSF, but the program was transferred to the National Oceanic and Atmospheric Administration (NOAA) when NOAA was created in 1970 by Presidential Reor- ganization Plan No. 4. The basic Sea Grant Act was rewritten and updated by the Sea Grant Program Im- provement Act of 1976 (Public Law 94-64 1). 28 Sea Grant is a matching funds program, where Federal money is matched by State and private sup- port. It also provides funds to institutions rather than directly to individual researchers, as NSF and most other Federal research agencies do. Schools which have developed as centers of excellence in marine matters can be designated "Sea Grant colleges;" while this designation does not guarantee a school continued funding from the national office, in practice these schools have received relatively steady funding, enabling them to establish stable long-term opera- tions. During its early years, the program grew steadily both in terms of budget and number of participating institutions. Estimated Federal funds for fiscal year 1978 are $27,767,000 which will provide about 60 percent of the funds for Sea Grant efforts around the country; States and private groups will provide the rest. 29 To date, 12 institutions have been designated as Sea Grant colleges: Oregon State and Texas A&M universities; the universities of California, Delaware, Hawaii, North Carolina, Rhode Island, Washington, 25 Telephone conversation with the Office of the Naval Ocean- ographer, November 18, 1977. 26 U.S., National Science Foundation. FY 1978 Budget in Brief to the Congress, in U.S. Congress, House, Department of Hous- ing and Urban Development — Independent Agencies Appropria- tions for 1978, Hearings before subcommittee of Committee on Appropriations, 95th Congress, 1st session, 1977, part 1, pp. 813-814. 27 Personal communication with Lauriston R. King, NSF, November 23, 1977. 28 U.S. Department of Commerce, NOAA. Sea Grant Annual Report, July 1, 1975 to September 30, 1976. Washington, D.C., Government Printing Office, 1977. For an introduction to Sea Grant see: National Advisory Committee on Oceans and At- mosphere. The National Sea Grant Program: A Review. Wash- ington, D.C., Government Printing Office, 1976. 2:1 U.S. Congress, House, Committee on Appropriations. De- partments of State, Commerce, Justice, and the Judiciary, and Related Agencies Appropriations for 1978, Hearings Before a Subcommittee of the Committee on Appropriations. 95th Con- gress, 1st session, part 4, p. 220. VIII-11 and Wisconsin; the State University of New York (including Cornell); the State University System of Florida; and the Massachusetts Institute of Tech- nology. In addition to applied research activities, Sea Grant also provides marine advisory services (dis- cussed later) and educational programs, including two types related to the training of marine profes- sionals: (1) research assistantships and (2) the development of new curricula and course materials for science and engineering students and for marine affairs students. An example of the latter is the marine law program at the University of Wash- ington. 30 Figure 8-2 shows the numbers of professors, students, and others who have been involved in the Sea Grant program in recent years. Sea Grant also has programs dealing with pre- college marine education and general public educa- tion; these are discussed later in this chapter. In general, the Sea Grant programs are respected and supported by the ocean community. Typical of this viewpoint is the conclusion of the 1976 study by the National Advisory Committee on Oceans and Atmosphere: 31 "We find that Sea Grant, as it has devel- oped during its first 10 years, has been responsive to its legislative charter, and has contributed significantly to the Nation's marine effort. We foresee a continuing need for the kind of service it provides. We strongly recommend that the program be continued." A number of issues dealing with the program's management and direction did arise during the dis- cussions that led to the 1976 amendments to the Sea Grant Act. As a result of those discussions, the 1976 Act specified administrative and mana- gerial provisions in more detail, modified the advis- ory committee which reviews the program, and made other managerial changes. It also authorized three new programs, one to provide fellowships, a second of nonmatching grants to study specific national policy issues, and a third to improve the marine science and technology capabilities of developing countries and to encourage the international ex- change of information. These programs are being funded in fiscal year 1978 for the first time. Management of the Federal Marine Education Effort This Nation's basic arrangements for training marine professionals are seldom criticized. In fact, there seems to be general agreement that sufficient numbers of marine scientists, engineers, and others are being trained; that the educational system which trains them is sound; and the basic Federal role in higher education is appropriate. However, in addition to the concerns mentioned earlier, there is also some discussion about the overall management of the Federal marine education effort. Two specific issues have been raised over the past decade and are still being debated: (1) data collection and (2) interagency coordination. The Stratton Commission's Panel on Education, Manpower, and Training discussed both issues, and concurred in this finding by its staff: 32 "[0]ne of this study's major conclusions is that a stronger mechanism is needed for obtaining and analyzing data on education and training programs and manpower needs and for coordinating federal activities to support the education and training of ma- rine personnel." Data and Information The Panel and its staff became aware of the data question when it tried to investigate personnel supply and demand and found "that reliable data were in- adequate or non-existent for many aspects of its task." 33 They could not estimate future supply and demand or even find out if there was a marine man- power problem at the time they were preparing their report. In 1969, the Panel recommended the creation of a "Marine Statistics Center." This has not been done. During the 1960s, there were a number of oceano- graphic personnel surveys, but by the mid-1970s almost all had been discontinued. 34 No Federal agency looks at marine employment as a whole. In a sense, then, the Federal Government does not know in detail what the civilian needs are or what impact its policies have. Several new efforts are now underway, however. The Social Science Data Center of the University of Connecticut is now mak- ing "The 1977 Survey of Academic Marine Scien- tists." While it is collecting data on a wide range of subjects, the survey asks the respondents for details about their education and jobs. However, this survey 30 Sea Grant Annual Report, op. cit. note 28, p. 29. " National Advisory Committee on Oceans and Atmosphere, op. cit. note 28, p. 2. n Panel Reports of the Commission on Marine Science, Engi- neering, and Resources, op. cit. note 12, p. IV— 1 3. " Panel Reports of the Commission on Marine Science, Engi- neering, and Resources, op. cit. note 12, p. IV-2. " Robert B. Abel. "The Government's Responsibility in Edu- cation," in Marine Technology Society and Institute of Electrical and Electronics Engineers, Oceans '77 Conference Report 1 : 19A-1 to 19A-4. VIII-12 5000 4000 3000 — 2000 — 1000 — FY 1971 FY 1972 FY 1973 FY 1974 FY 1975 FY 1976 Faculty and Professionals Undergraduate Students Graduate Students Others (including Clerical Technicians, etc.) Figure 8-2. — Participants in Sea Grant Program. Source: Sea Grant Annual Report, July 1, 1975, to September 30, 1976. Washington, D.C., Government Printing Office, 1977, p. 62. VJII-13 focuses on current personnel; it does not attempt to project the future demand and possible supply of academic oceanographers. In addition, education and employment trends in marine sciences are being stud- ied by a new Manpower and Curricula Panel estab- lished under the National Research Council's Ocean Sciences Board. It is not yet decided when this panel will report its findings. It has received no specific Government funding to support the activity. The Council's Maritime Transportation Research Board has done considerable work concerning seagoing personnel and recently has begun a new study on "Manpower and Skills for a U.S. Seagoing Work- force." Also, the National Academy of Engineering's Ma- rine Board is considering undertaking a study of general marine personnel supply and demand, in eluding the need for technicians and skilled craftsmen as well as professionals. No formal study has yet been begun or funded, though. A number of people are concerned about the lack of good marine personnel data, but the general marine community appears to feel little sense of urgency about this issue. Perhaps a major reason is that some of the same studies that have called for improvements in data collection also have pointed out that there is no major problem in balancing sup- ply and demand. This is partly because of the ease with which professionals can enter or leave the marine field as the employment picture situation changes, and partly because the need for new per- sonnel has not expanded as rapidly as was predicted during the 1960s. 35 There is also the question of how accurate or useful marine personnel projections can be, given both the unpredictability of the field and the fact that informal communication among educa- tors, government officials, and industry may turn out to be more timely and more trusted than statistics gathered by a central office in Washington. More formal studies could help highlight special problems and opportunities warranting the attention of edu- cators, students, government, and others. The policy issue, however, is whether something beyond the existing informal communications network really is needed and, if so, what form it should take to be of most use to the highly decentralized marine education system. Coordination Historically, the main interagency coordination mechanism in the marine field was the Interagency Committee on Marine Science and Engineering (ICMSE) , now replaced with the Committee on Atmosphere and Oceans (CAO) of the reconstituted Federal Council on Science and Technology. ICMSE had some interest in marine education and published an annual listing of marine programs in colleges and universities around the Nation. 36 CAO, as yet, has not looked at marine employment and education, nor does it appear likely to resurrect any of the now largely defunct data-gathering mechanisms of the 1960s. 37 Again, the Stratton Commission manpower panel recommended a new organizational mechanism, both to collect marine statistics and to be "a central co- ordinating body to study total needs, balance Federal agency funding activities, and prepare and admini- ster a national marine education and training pro- gram consistent with changing needs in the marine environment." The panel recommended creation of an Office of Marine Education, Training, and Man- power. None has been established. Today, such ideas still are proposed occasionally, but the issue apparently is not considered urgent by either the Federal agencies or the general marine community. Perhaps this is because there is little opposition to the present system of several different agencies funding marine research and education, perhaps partly because the relevant agencies stay in touch informally and perform the necessary program coordination. Recently, however, another kind of coordination mechanism — the interagency agreement — has been used in the related area of precollege marine educa- tion. During the summer of 1977, Sea Grant and the Office of Education signed an agreement to consult with each other and keep each other informed. 38 Whether such an agreement could improve the co- ordination of college level marine education pro- grams is an unanswered question. Major Current Issues To summarize, while there now appear to be no major policy controversies in this area of training marine professionals, several issues have been raised which are likely to be part of future discussions about marine education. In turn, how these issues are re- solved will affect the operation and direction of the Federal Government's marine education effort. These 33 National Academy of Sciences — National Research Council, op. cit. note 21. issues, most of which already have been mentioned, are discussed briefly below. The broadest issue probably will be whether sup- port of university education and research is declining ■'"' Interagency Committee on Marine Science and Engineering, op. cil. note 19. " Robert B. Abel, op. cit. note 34, p. 19A-2. 38 "Memorandum of Agreement Between the United States Office of Education and the National Oceanic and Atmospheric Administration," signed August 25, 1977. VIII-14 seriously, whether this affects marine education, and, if so, what can and should be done. If there indeed is a deterioration in laboratory equipment, an erosion in support for basic research (in inflation- corrected dollars), and other shortcomings, the qual- ity of education as well as research can be expected to decline in the years ahead. Critics of more spend- ing are likely to emphasize the fact that hard evi- dence of such a decline is lacking, whereas educators are likely to maintain that because research is closely linked to graduate education, a decline in the one will affect the other. The marine education community will continue to discuss issues related to university teaching: issues such as the balance between teaching and research, how to make today's diverse marine science programs more compatible so that students can move easily from one to another, and how best to teach marine affairs. These are essentially issues of university operation, not Federal policy. However, one can ex- pect proponents of one viewpoint or another occa- sionally to appeal to Federal agencies for action related to these matters. The employment data question will continue to be debated. Proponents of more data collection and analysis will argue that better information is vital if the Federal Government is to know where current and future marine personnel needs are. Critics of new efforts may argue that they are unnecessary, given the lack of any major marine employment problems, and unfeasible, largely because no one can reliably predict future needs in this diverse and fast- changing field. The interagency coordination issue also will con- tinue, though probably at a low level. Critics of more coordination procedures will point to the present in- formal coordination and to statutes which define each agency's specific role and seem to prevent un- desirable overlap and duplication. They also will ask what improvements greater coordination would make. Maritime Officer Training For many years the Federal Government has played a significant role in the training of deck and engineering officers for the U.S. merchant marine, though even today Federal and Federally supported schools supply only part of the Nation's maritime officers. The Federal Government also licenses all merchant marine officers. Providing Federally supported training and licens- ing personnel are seen as important to the efficiency and safety of the merchant marine during peacetime and to its viability during war or other national emergencies. Maritime education programs are ad- ministered by the Department of Commerce's Mari- time Administration (MarAd). The licensing func- tions are carried out by the Coast Guard with the Department of Transportation. Present Federal Policy Four main policy objectives guide the Federal Government's maritime officer programs. One is to ensure that the Nation has sufficient numbers of trained officers to meet national defense requirements and to promote commerce. Second, for safety reasons the Government licenses maritime officers and deter- mines the minimum number each ship must have. Third however, Federal programs avoid directing the merchant marine about which particular personnel to hire and under what circumstances. Finally, the Government also has left considerable autonomy to the Federally supported State merchant marine acad- emies, which train many of the Nation's officers. MarAd helps set basic curriculum standards for the schools and influences enrollment levels by setting the number of students who receive Federal subsidies. But the schools receive funding from a number of sources and have great autonomy in deciding how many students to train. The Federal policy of ensuring sufficient numbers of maritime officers has its origins in the Merchant Marine Act of 1936 (46 U.S.C. 1 101 et seq.). Section 101 of the Act is the declaration of policy. In part, it says this: "It is necessary for the national defense and development of its foreign and domes- tic commerce that the United States shall have a merchant marine . . . composed of the best-equipped, safest, and most suitable types of vessels, constructed in the United States and manned with a trained and effi- cient citizen personnel . . ." Section 216, which deals with personnel in more detail, was added to the Act in 1938. Subsection (a) authorizes and directs the Secretary of Commerce "to establish and maintain the United States Mari- time Service as a voluntary organization for the train- ing of citizens of the United States to serve as li- censed and unlicensed personnel on American merchant vessels." Operating as a large training or- ganization during and after World War II, the Mari- time Service became inactive during the 1950s, as personnel needs shrank as the size of the U.S. VIII-15 merchant fleet grew smaller. Subsection 216(b) cre- ated the U.S. Merchant Marine Academy at Kings Point, N.Y. 216(c) authorizes the Secretary of Commerce to establish extension and correspondence courses to supplement the training of both maritime officers and seamen. Today, under this authority, the Maritime Administration has established five regional training centers at which short courses are offered on the use of radar, loran, and gyrocompass. These centers are located in New York City, New Orleans, San Fran- cisco, Seattle, and Toledo. A fee is charged for most courses. In addition, firefighting training is offered free of charge on a not-to-interfere basis at the Navy's Military Sealift Command (MSC) firefighting school at Earle, N.J. and at the Navy Training Cen- ter, Treasure Island, Calif. 30 According to MarAd officials, the agency funds such extension courses only where a critical safety need exists and it is impractical or too expensive for the industry to fund them. In addition to operating Kings Point, MarAd also provides financial assistance to the six State maritime academies in California, Maine, Massachusetts, Michigan, New York, and Texas. The authority for this Federal aid is the Maritime Academy Act of 1958 (46 U.S.C. 1381 et seq.). Under this Act, pay- ments of $1,200 ($600 before FY 1978) per year per student are provided to defray the cost of uni- forms, books, and subsistence. Since fiscal year 1974, MarAd has limited the Federal payments to 673 students per entering class, in an effort to keep down the number of students at the State academies. Also, payments of $100,000 per year are authorized for each State academy, though the actual fiscal year 1978 appropriation was $75,000 per school, and federally-owned training vessels are provided to the five "salt-water" schools. 40 A major concept behind these policies is the con- nection between transportation and national security — the premise that U.S. -flag vessels are needed in time of emergency — plus the attitude that private sources alone cannot guarantee a sufficient number of maritime officers. There is also the long, tradi- tional view that Government support of commercial maritime operations is warranted. (See chapter V, Marine Transportation.) A related principle is that maritime academy students should be familiar with Navy procedures. It is reflected in the naval sci- ence courses taken by subsidized students at Kings Point and all the State academies except Michigan. However, one criticism of the present arrangements is that many maritime officers — particularly the 80 percent who are not academy graduates — have not been given detailed training in such Navy procedures as convoy tactics. " At the same time, Federal policy also is influenced by the idea that while the Government should license officers, the commercial merchant marine operates best with a minimum of Government involvement in day-to-day operations. For instance, there is no legally enforceable requirement that maritime acad- emy graduates serve some minimum amount of time at sea, because the Federal Government cannot re- quire private shipping companies to hire them. How- ever, Kings Point students are required to sign a paper making a "moral commitment" to seek seafar- ing employment upon graduation. Sources and Employment of Merchant Marine Officers There are four major sources of new merchant marine officers: (1) U.S. Merchant Marine Acad- emy, (2) the six State maritime academies, (3) the Calhoon MEBA Engineering School, 12 and (4) the "hawsepipe." 43 Table 8-4 shows the enrollment and appropriated Federal funds for each of these sources, except for the "hawsepipe." Tables 8-5 and 8-6 contain MarAd's estimates of present and future demand for deck and engineering officers graduating from the Nation's maritime acad- emies. The main conclusion is that while there is a surplus of new graduates now, there may be short- ages of deck and engine graduates in the near future, if the assumptions in MarAd's "best estimate" (most 30 U.S. Congress, House, Committee on Merchant Marine and Fisheries. Report of the Ad Hoc Select Committee on Maritime Education and Training of the Committee on Merchant Marine and Fisheries on Fiscal Year 1978 Budget Requests for Maritime Education and Training, 95th Congress, 1st session, March 21, 1977, p. 3. likely) scenario are valid. Another key point re- flected here is that academy graduates are hired not only for deep sea shipping but also for work on the Great Lakes, in the Government, in offshore mineral and oil exploration ("M&O"), and for inland ship and barge operations. One significant feature of the U.S. merchant ma- rine is the strong role of the maritime unions. The principal ones for maritime officers are the Interna- J0 U.S. Congress, House, Committee on Merchant Marine and Fisheries, op. cit. pp. 2-3. 41 U.S. Congress, General Accounting Office. The Federal Role in Merchant Marine Officer Training. Report FPCD-77-44, June 15, 1977, pp. 13-17. "The Calhoon School in Baltimore trains maritime engineering officers. It is operated by the engineers' union, the Marine Engi- neers Beneficial Association, District 1, The school is named for the union's president, Jesse Calhoon. 1:1 Hawsepipe is a nautical term used by the maritime industry to refer to unlicensed seamen who, through self-study and on-the- job training, work their way up through the ranks, meet the Coast Guard's licensing criteria, and receive their initial deck or engineering officer's license. V1II-16 tional Organization of Masters, Mates, and Pilots (MM&P) and the Marine Engineers Beneficial As- sociation (MEBA) . An officer must belong to a union — or be an approved "applicant" — and meet union employment criteria if he or she is to get a job onboard a ship under union contract. These unions control most U.S. maritime officer jobs. In 1975 testimony before the Congress, MarAd estimated that of licensed seagoing jobs on U.S. vessels displacing, 1,000 gross tons and over, MM&P controlled 77 per- cen of the deck officer jobs and MEBA controlled 79 percent of the engineering officer jobs. 44 Controversy Over Maritime Manpower In general, there has been little criticism of the ways officers are trained for work on the Great Lakes and in the offshore and inland operations. And there is little controversy about the number of people being trained for this work, since the supply of officers seems balanced with supply. This has not bee the case for the deep sea mer- chant marine, however. Since around 1970 there has been a controversy over who should train officers and in what numbers, and especially whether engine of- ficers should be trained by the academies or by MEBA, the engineers union. The debate has died down somewhat in the last year, but the key issue of who should do the training remains unresolved. An associated issue is what role the Federal Government Table 8-4. — Enrollment and appropriated Federal funds for the four sources of new merchant marine officers 1 Source of merchant Fiscal year 1976 marine officers Average enrollment Federal funds million dollars U.S. Merchant Marine Academy. . 1,052 12.7 a State University of New York Maritime Academy . . 832 1.2 Massachusetts Maritime Academ y. 768 1.2 Maine Maritime Academy .. 513 1.1 California Maritime Academy. . 331 .7 Texas Maritime Academy 93 .4 Great Lakes Maritime Academy 81 .1 Calhoon MEBA 300 .0 b Total: . 3,970 17 4 'Source: U.S. Congress, General Accounting Office. The Fed- eral Role in Merchant Marine Officer Education, Report FPCD- 77-44, June 15, 1977, p. 3. "The $12.7 million consists of $8.7 million for normal operat- ing costs and about $4 million for the modernization program. b Federal funds flow directly to the school through contribu- tions made to the MEBA training fund by Federally subsidized shipping companies. should play in trying to balance the demand and the supply of maritime personnel. The controversy occurred because maritime em- ployment dropped sharply around 1970, the result of a general decrease in the number of U.S. ships and jobs and an end of the extra employment associated with the Viet Nam conflict. The two principal officer unions, anxious to ensure that remaining jobs went to their senior members, largely closed their rolls to new academy graduates. Yet the academies — and MEBA's Calhoon School — continued to turn out of- ficers, and a major surplus developed. MarAd has limited authority to resolve the con- troversy. Present laws have made it difficult for the Federal Government to ensure that the supply of new officers matches the demand — a demand that fluctu- ates over time and which was quite low during the early 1970s. MarAd does prepare plans and can limit the num- ber of students who receive Federal subsidies, which allows some control of enrollments. But at the same time the States rarely have acted to control enroll- ments, and, moreover, the academies possess con- siderable autonomy from both the Federal agencies and their State governments. With several sources of funding, plus an American tradition of keeping gov- ernment influence to a relative minimum, the acad- emies are at liberty to continue training large num- bers of graduates if they wish — and some of them have. 45 Similarly, MarAd cannot exercise control over the union schools, even if it somehow wanted to. The schools are funded by the companies through arrange- ments specified in union-management contracts. As a result of all this, MarAd has taken the roles of information-gatherer and forecaster, in order to inform the maritime community of possible future developments and of a mediator who attempts to bring the responsible parties together during times of either manpower shortage or surplus. 44 U.S. Congress, House, Committee on Merchant Marine and Fisheries, Maritime Education and Training, Hearings before the Subcommittee on Merchant Marine of the Committee on Merchant Marine and Fisheries on H.R. 1626 and H.R. 9864 [and] H.R. 10413 and H.R. 10500, 94th Congress, 1st session, 1975, p. 14. 45 For a discussion of the autonomy of the academies, see Wil- liam R. Rosengren and Michael S. Basis. The Social Organization of Nautical Education. Lexington, Mass., Lexiton Books, 1976, pp. 5-7. VIII-17 ITS 00 I n© r» E &> ■u cej es o | ■B R E c C5 00 CS 00 On oo — IH CN Tfr oo cm oo On 00 -* IH tN ■* 05 On oo ON o £ o u o ■D u O s CJ E 0) = eg a. 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E •a c SS S •a S S < Q e3 3 T3 es >> E o, 3 B •i « u c ? 3 a* 3 a 3.2 . « oo >> . ja ^^ F = I Tn 9 ~ -8 & S c c a, acade from e Aca Tiy ou ates f mand for graduates Maritim es Acade my gradu 3 to « 00 M CJ 73 >, 8 a "O 5 3 P 0 Academy). 2 P 4 Surplus of r (excludes G y school, and us or (deficit) 5 to 4> ■« itime ector secto dustr surpl kes Mar ep-sea s eep-sea epipe, in 10 Total CJ o tu t0 CJ X3 t3 y H O ^rn 1 M M J3 CJ ■o o a cj u ■« mh a 4J C3 ■ to c « -a 5 > a o s *"* tn 3 0. o -o a ° « S 2 « c S? C0 ^ CJ ca ca a -9 ra t: 2 ca S « <« O Jj " J •a ^ >» tj w S«°' ca CO CJ <1> '" CO t-i ^ VIII-19 To examine this controversy and MarAd's situa- tion, the House Merchant Marine and Fisheries Com- mittee established a special Ad Hoc Committee on Maritime Education and Training. It and the Com- mittee's Merchant Marine Subcommittee held a series of hearings on the subject during 1974 and 1975. 46 During these hearings MEBA argued that it should play a major role in training new engine officers, and the academies argued that they should play the major role. Each group blamed the surplus of officers on the other. There were also other criticisms. The academies accused MEBA of hiring discrimination, saying not only that the union was taking few new members, but also that its rules enabled Calhoon School graduates to get the few new jobs that existed. MEBA in turn argued that the academies had no business turning out large numbers of new officers when there were no seagoing jobs for them. It appears that the academies and MEBA each had a point. The Calhoon School was intended to meet the perceived Viet Nam era shortage of engine offi- cers, but was continued after the war and now sup- plies about one hundred new officers each year. The school receives Federal money, albeit indirectly. Its funds come from the shipping companies, as deter- mined by labor contracts. Many of these companies receive MarAd operating differential subsidies and since 1974 have been able to receive subsidies to cover much of these training expenses. 47 Most importantly, MEBA gave employment prefer- ence to Calhoon School graduates over academy graduates. The General Accounting Office has de- scribed how this worked. 48 Essentially, MEBA cre- ated a category for new engineers with a certain amount of training at sea on MEBA-controlled ships; those in this category got jobs, whereas those not in it rarely did. Calhoon School graduates met this re- quirement, academy students trained on academy ships did no.. At the same time, however, it is also true that generally the academies did not cut back their en- rollments and continued to graduate large numbers of officers, even though the deep-sea employment situation was bleak and MarAd had imposed a ceil- ing on the number of Federally subsidized students. Being scmiautonomous, they continued to operate largely as before. In fact, in the late 1960s there was some expansion of the student bodies, particularly at the Massachusetts school. In the debate over who should train officers and in what numbers, academy proponents made several arguments. One — made now as well as then — is that the schools and their enrollment levels should be judged not only because they contribute to the deep- sea fleet, but also because their graduates do valuable work in shore-based maritime jobs, in inland and offshore operations, and in the Navy. Others argue that a college education is good preparation for an officer and, moreover, is beneficial because it gives a young graduate a wide range of future job options. Recently, some also have argued that academy en- rollments should be maintained because of the pos- sible future shortages of young officers. If it is true that the era of surpluses is ending, they say, then this is not the time to reduce the academies' role in supplying both deck and engine officers. Others disagree with these points. Critics point out that these colleges are the only instances of the Federal Government providing education in support of a private civilian industry, and argue that Federal support is justified only to the extent that they train people who will be available in case of national emergency. Some proponents respond that in an era when Federal and State governments spend large amounts of money on higher education, some $17 million a year is not an excessive amount to spend in support of valuable schools with a long tradition of Government involvement. In 1975, the House Ad Hoc Committee issued a set of conclusions and recommendations based on its investigations. The main finding was: 49 "[T]he cyclical nature of the maritime in- dustry requires the imposition of quantita- tive controls on the flow of licensed officers into the maritime labor market. Basic prin- ciples of fairness demand that such quanti- tative controls be developed through a sound system of prospective planning. This type of planning has been seriously lacking in the past. It is therefore recommended that the Maritime Administration be directed to hold a meeting each year of representatives of all maritime schools which train individuals for initial licensing as officers for the purpose of establishing Federal support levels by dis- cussing and relating incoming enrollment levels of these institutions to the future numerical requirements of the U.S. -flag merchant fleet for licensed officers." Beyond acknowledging the problem, this state- ment by the Committee also recognizes two other factors. One is that the main leverage that MarAd has is setting "support levels," mainly the number M Ibid., which covers most of the basic issues and arguments involved in the controversy. "Ibid., pp. 12-13. "U.S. Congress, General Accounting Office, op. cit. note 41, pp. 18-19. ■" U.S. Congress, House, Ad Hoc Committee on Maritime Education and Training. Report of the Ad Hoc Committee on Maritime Education and Training on Principal Institutions in the United States Which Train Individuals for Initial Licensing as Merchant Marine Officers. 94th Congress, 1st session, Serial No. 94-D, 1975, p. 21. VIII-20 of students who will be subsidized each year. At the same time, the report seems to note implicitly that this is an imperfect lever of control at best, and that mediation and discussions among the involved parties are equally important. Legislative proposals based on this and other recommendations were introduced, but were not acted upon by the 94th Congress. These issues now are being examined by a new House Ad Hoc Select Subcommittee created in the 95th Con- gress. Today the underlying issues remain unresolved: the question of who should train maritime officers, and the associated question of whether MarAd or perhaps others should be given a larger role in en- suring that the supply of officers trained by the academies and the unions is balanced with demand. But for the moment, the debate had died down. Today there appears to be enough sea-going em- ployment for all who want it, largely because of increasing retirements among merchant marine of- ficers. One result of this improved job situation is that MEBA now has rewritten its shipping rules to allow new academy graduates into the union on a more equal footing with graduates of the union's school. Whether this present demand for officers con- tinues depends on many things, including future Federal policies regarding cargo preference, shipping subsidies, and manning and safety requirements. Yet in any case, the issues of how to train officers and in what numbers are likely to remain. Licensing and Retraining In recent years ships around the world have been sinking at an alarming rate, an average of about one a day. In the judgment of a National Research Coun- cil (NRC) study of the problem, human error is often a contributing if not fundamental factor in these sinkings and other maritime accidents. The NRC study concluded: 50 "Marine casualties and their effects, includ- ing loss of life as well as ecological and cost considerations, are far more serious than is realized; this is especially disturbing since at least 80 percent of casualties are related to human error." The NRC work on this question of human error has helped to make it a significant maritime per- sonnel policy issue. It is also a controversial one. In 1975 hearings before the House, the maritime unions disagreed among themselves about this subject, espe- cially the idea of requiring periodic physical exami- nations for U.S. maritime officers. The representative of the International Organization of Masters, Mates, and Pilots (MM&P) had no objection to a require- ment for physical examinations, but two other unions felt otherwise. Jesse Calhoon of the Marine Engineers stated that MEBA members already undergo a bi- ennial physical examination and was against Govern- ment examinations. He also opposed another idea, that of reexamination to ensure that basic skills have been maintained. The radiomen and radio officers' unions, which also opposed requirements for physical examinations and reexamination of skills, were clearly worried about the impact these might have on jobs. 51 Others question whether the available data fully sup- 50 Panel on Human Error in Merchant Marine Safety, Mari- time Transportation Research Board. Human Error in Merchant Marine Safety. Washington, D.C., National Research Council, June 1976, p. v. 51 U.S. Congress, House, Committee on Merchant Marine and Fisheries, op. cit. note 44, pp. 125, 160-161, and 176. port the panel's contention that certain steps, such as additional physicals, actually will improve ship safety. While the education, licensing, and qualification of merchant mariners are an international problem, any discussion of U.S. Merchant Mariner qualifica- tions and documents usually starts with the require- ments of the U.S. Coast Guard. To qualify for an original license as a Merchant Marine officer for service on U.S. flag merchant vessels, an applicant must present qualifying sea service or be a graduate of a Coast Guard-approved licensing program, and must pass a physical and professional examination. In addition, these licenses must be renewed every 5 years. Upon renewal a deck officer must show re- cency of service under the authority of his license within the preceding 3 years, complete an open book exercise on rules of the road and pollution abatement, pass a color sense test, and take a written examina- tion for "radar observer." To renew his license, an engineering officer must complete an open book exercise on pollution abatement. To sail in an unlicensed capacity aboard a U.S. flag merchant vessel of over 100 gross tons, all sea- men must obtain a U.S. merchant mariner's document issued by the Coast Guard. Applicants for the "entry ratings" or ordinary seaman, wiper, and member of the steward's department must present a letter of commitment of employment for service on U.S. flag merchant vessels to be eligible for a merchant ma- riner's document. Applicants for "qualified ratings" such as able seaman and qualified member of the engine department must present qualifying sea service or complete a Coast Guard approved course of in- struction, and pass a physical and professional examination. Retraining for officers and seamen is available now through MarAd's training centers and a series of union schools. For instance, MM&P operates a highly regarded Maritime Institute of Technology and Graduate Study near Baltimore, Md. VIII-21 The NRC panel's overall conclusion is that this system of licensing and retraining can and should be improved. The panel found 15 factors that are either actual or potential causes of casualties or near-cas- ualties. 5 - They are: 1) 2) 3) 4) 5) 6) 7) 8) ( 9) (10) (11) (12) (13) (14) (15) inattention, ambiguous pilot-master relationship, inefficient design of ships' bridges, poor operational procedures, poor physical fitness, poor eyesight, excessive fatigue, excessive alcohol use, excessive personnel turnover, high level of calculated risk, inadequate lights and markers, misuse of radar, uncertain use of sound signals, inadequacies of the rules of the road, and an inadequate data base regarding marine casualties. The report also makes recommendations on each factor. These include suggestions that the Coast Guard require periodic physical examinations, man- date new equipment to prevent collisions and acci- dents, and improve rules of the road. They also suggest that MarAd improve education, training, and retraining programs; develop a system for qualifying crew members by vessel type; study of job satisfac- tion, fatigue, and abuse of alcohol and drugs; estab- lish new standards regarding radar; and work with the Coast Guard to improve navigation aids and markers. 53 The maritime safety issue took on a new urgency during the winter of 1976-77, when the Argo Mer- chant and a number of other tankers were involved in major accidents off the U.S. coast. President Car- ter discussed these accidents in a March 18, -1977, statement announcing actions to reduce maritime oil pollution. This statement called for new crew standards and training, as well as stricter construc- tion and operating standards for tankers and stricter Coast Guard enforcement of such standards. Speci- fically, the President directed the Departments of Transportation and Commerce to review the draft agenda for Inter-Governmental Maritime Consulta- tive Organization's 1978 Conference on Standards of Watchkeeping and Training and consider possi- ble additional requirements. Furthermore, the President directed Transportation to take immediate regulatory action to improve standards for U.S. crews, including requirements based on class and size of vessel and more emphasis in licensing examina- tions on demonstrating important skills, such as radar operation and interpretation. These requirements will apply to both issuance and renewal of licenses for shipmasters, mates, and federally-licensed pilots. 54 Both the Coast Guard and MarAd now are taking steps based on these orders. At the same time, the controversy over present Federal policy continues. Major Current Issues It is likely that some debate regarding both mari- time safety and the supply of maritime officers will continue. For despite recent actions dealing with these issues, some observers believe that the underlying problems have yet to be addressed fully. For the moment, the maritime academies and the maritime unions appear to be at peace on the question of who should supply merchant marine offi- cers and how they should be admitted to the unions. The reason, however, is that there appear to be enough jobs for everyone now, not that underlying questions about the roles of the academies and the unions have been resolved. If present officers con- tinue to retire in large numbers and employment op- portunities for new officers continue, as MarAd predicts, then the debate probably will simmer at a low level. However, if the job market becomes de- pressed, it is likely that the old debates that plagued the maritime manpower community during the first part of the 1970s will reappear. It is also likely that both MarAd and others will continue to find it diffi- cult to resolve the problem, given the fragmented nature of the system that both trains and hires mari- time officers. Maritime safety will continue to be an issue. Of course, it involves questions of ship construction and maintenance as well as personnel, but these person- nel questions will be debated further because human error continues to be a major cause of marine acci- dents. In 1978 it is likely that the focus will shift from national policy to the international discussions at the meetings of the Inter-Governmental Maritime Consultative Organization (IMCO). 7,2 Panel on Human Error in Merchant Marine Safety, op cit. note 50, pp. 7-1 1. "'"Ibid., pp. 15-18. 14 See the President's March 18, 1977, message to the Congress regarding actions to reduce maritime oil pollution, as well as the accompanying "fact sheet." VIII-22 Vocational and Technical Training Traditionally, the vocational training system in this country has been decentralized and the Federal role limited. Some vocational training is done through high schools, private vocational schools, community colleges, and a few programs run by colleges and universities. Much is done outside the regular public and private schools, through on-the-job training, apprenticeship programs, and industry and labor schools. The armed services also have large train- ing programs; many skilled laborers now in the civil- ian workforce were trained in the military. Alto- gether, the programs available both in and out of the military are incredibly diverse, ranging from in- formal advice from extension agencies and special training and retraining courses lasting a few days to 2-year college certificate programs for certain highly trained technicians. These points apply to ma- rine and maritime as well as land-oriented occupa- tions. The Federal role in vocational education goes back to the early part of this century, but generally has been limited to providing financial and other assistance to the States and industry, rather than operating Federal schools. Exceptions have been the military training programs and some programs in the civilian agencies. Along with this financial assistance, the Federal agencies also encourage planning. Both the money and the planning are seen as necessary to ensure the Nation has the proper balance between employment supply and demand. Present Federal Policy Two levels of Federal policy affect marine and maritime vocational education. And the Federal role in both has been shaped by the twin objectives of helping to assure sufficient supplies of manpower while also limiting the Federal role in the operation or administration of schools. On one level, some programs deal specifically with marine and maritime training. The Sea Grant pro- gram is one; among other functions, it trains techni- cians and provides advice to people in marine busi- nesses. The previously mentioned MarAd training schools are another example. These federal programs help support and supplement the Nation's large State and private training efforts, such as the net- work of union schools which train merchant seamen and various other schools specializing in divers, tech- nicians, and other marine workers. Second, there are Federal programs which deal with vocational education in general. While only a small number of the people they train ever work in the marine or maritime fields, they nonetheless must be considered because the vocational schools they support supply many of the skilled workers of the ocean industries. In addition to the two general ob- jectives of assuring manpower but limiting the Fed- eral role, some of these programs also have a third objective: reducing unemployment and underem- ployment. Basic Federal vocational policy has resulted from a long line of vocational education acts passed by Congress, starting with the Smith-Lever Act of 1914. The main law today is the Vocational Education Act of 1963, recently revised by the Education Amend- ments of 1976. The Act is administered by the Office of Education in the Department of Health, Education, and Welfare. Its goal is to help provide "ready access to vocational training and retraining which is of high quality." It provides Federal grants to the States to help them develop new programs and maintain ex- isting ones. The third objective — reducing unemployment and underemployment — is reflected primarily in two acts. One is the Comprehensive Employment and Training Act of 1973 (CETA), as amended. Its purpose is to create jobs through both public employment jobs and training programs. As elsewhere, the Federal program is intended to assist State and local efforts. In this case, CETA provides job and training money to over 400 "prime sponsors" — state and local agencies — to design and manage operations. Several other activi- ties under CETA are run directly by the Labor De- partment, which administers the Act. The Job Corps is one of them. While CETA programs are premised on the notion that the Federal Government should be the employer and trainer of last resort, the programs of the De- partment of Commerce's Economic Development Administration (EDA) award funds to private com- panies, often construction companies, in order to increase employment in high unemployment areas. In the process, EDA stimulates some on-the-job training and also creates additional demand for peo- ple with formal vocational training. The general result of this increasing number of Federal programs is two-fold: to fragment Federal manpower efforts further and to reinforce the Na- tion's present decentralized system of vocational education. VIII-23 Federal Programs Neither CETA nor EDA plans its programs in terms of providing a given amount of manpower for a given field, such as marine and maritime. Instead, it is left to the individual CETA "sponsors" or ap- plicants to EDA to decide which types of persons are employed or trained. As a result ,it is difficult to obtain statistics on the number of marine-related people and projects supported by the programs. For instance, EDA is funding a number of aquaculture projects, but details are not readily available. How- ever, presumably these programs could be directed to focus more on the marine field, if this were to be a principle of national policy. The Office of Education does look at the person- nel needs for specific sectors of the economy, but usually only on a selective basis, examining special problem areas. This appears to reflect a general feel- ing in the vocational field that most manpower needs can be met through a combination of private efforts, State programs, and some general financial assistance from the Federal Government. Certainly, this is true in the marine area. For instance, while there are special Federal programs for training merchant marine sailors, training in other fields, such as the offshore oil-drilling industry, operates without direct Federal involvement. In the offshore drilling area, training is provided through private schools and through a network of special pro- grams sponsored by the industry trade association and operated by college extension programs. Further- more, the industry considers these training courses — usually 2 days to 4 weeks — to be supplements, not replacements, for the more important on-the-job training. However, it is also true that a recent survey of the industry indicated that most would cooperate and participate in a joint Government-industry pro- gram to help deal with the shortage of well-trained drilling hands. 55 The drilling company executives, who traditionally have been content to run their own programs, but now may ask for Federal help, reflect a general atti- tude in the vocational field: That special Federal programs to meet the training needs of a particular industry usually are requested only when the indus- try feels it cannot perform the training on its own. It is in such circumstances that the Office of Educa- tion pays special attention to the manpower needs of a particular sector of the economy. A marine example comes from the shipbuilding industry, which was hit by a major labor shortage in the early 1970s, largely due to simultaneous expansion of both com- mercial and Navy shipbuilding. The increase was complicated by unusually high employee turnover. 56 The vocational bureau of the Office of Education began to work on the problem, as did MarAd and the Department of Labor. Even here, though, the Federal agencies did not begin any new special train- ing programs; instead, they gathered detailed infor- mation and distributed it to State directors of voca- tional education in order to notify them about the job opportunities and personnel needs in this field. 57 Apparently this position reflected the attitude that actual training is best left to the States and in- dustry and that the appropriate Federal role in ship construction personnel is to assist these efforts. 56 And, indeed, the ship construction industry has ex- panded its own network of training schools. This pattern of industry meeting its own man- power needs — often with help from the States, some- times with special help from Federal agencies— is repeated throughout marine industries. One other example is the commercial diving industry. Some years ago the need for trained divers became acute, largely because of expanded offshore oil operations. In response, existing schools expanded and new programs were started, and the industry's manpower situation is better today. 59 All of this notwithstanding, there have been cases where Congress has established special Federal pro- grams to meet the perceived special training needs of particular fields. In the marine area, the largest are those of the Navy and Coast Guard where special training commands were established to meet the service's manpower needs. The main civilian Federal program training vocational personnel is Sea Grant. Sea Grant has two vocational training efforts, in the broad sense of that term. One helps support the training of technicians, most of whom receive 2 years of training in community colleges. During fiscal year 1976 and the transition quarter, Sea Grant supported 23 projects in technician training with about $400,000 in Federal funds; matching funds from States and private sources totaled more than $1 million. Two projects produced oceanographic tech- nicians for research vessels, two trained commercial divers, and others emphasized commercial fishing, marine applications, welding, marine electricity and electronics, and repair and maintenance of diesel and gasoline engines. The National Sea Grant Office encourages the schools involved to maintain close M 77ie Oil and Gas Journal, September 19, 1977, pp. 149 ft. "Edward F. Mackin and Roger D. Anderson, op. cit. note 1, p. 34. 57 Wm. Paul Gray, Memorandum to Regional Office Personnel on "Needed Information on Manpower for the Shipbuilding Industry," Office of Education, March 31, 1976. 58 However, for many years the Federal Government has sup- ported apprenticeship programs which train workers at the public shipyards. r " Glen H. Egstrom. "Industry Programs for Marine Education and Manpower," in Marine Technology Society and Institute of Electrical and Electronics Engineers, Oceans '77 Conference Re- port 1 : p. 37A-1. VIII-24 contact with marine industries and other potential employers of the graduates. 60 The other Sea Grant program is the Marine Ad- visory Service. When the original Sea Grant legisla- tion was being drafted, there was concern about how to transfer research results into the hands of people who could use it, such as fishermen and ocean engi- neering firms. The model turned to was the county agricultural extension agent, and as a result the legislation called for Sea Grant versions of these agents. In 1976 there were more than 225 such agents around the country, most of them attached to Sea Grant Colleges, and some attached to State agencies. During fiscal year 1976 and the transition quarter, $8,627,000 in Federal funds and $4,755,- 000 in matching funds were spent on Marine Ad- visory Service activities. 01 Major Current Issues There appears to be little controversy about the basic organization of marine vocational training sys- tems or about the Federal role. Nor is there much controversy concerning the Federal policy on voca- tional education in general. Perhaps this is because the present marine education system generally pro- vides the personnel that the country needs. One reason may be that most areas of marine employ- ment are growing only slowly, though steadily. Another may be that many marine jobs require little specialized training, such as sales personnel; or skills readily available from the land-oriented workforce, such as those of secretaries and other support per- sonnel; or the kinds of skills learned primarily on the job, such as in the case of fishermen and long- shoremen. However, there are several issues that have been discussed. One, previously mentioned, is whether the Federal Government should become more in- volved in the training of workers in such fields as offshore oil-drilling and ship construction — indus- tries where there are not only personnel shortages, but also strict Government regulation and increas- ingly sophisticated technology which require work- ers to be more skilled than ever. Proponents of a larger Federal role argue that increased involvement is necessary to ensure that the country has the skilled workers it needs in these fields. Critics argue not only that the traditional Federal role in this area has not been large, but also that the present decentralized system appears to be functioning reasonably well. They may ask for evidence of any case — even in the shipbuilding industry — where personnel shortages have been so bad that major projects were seriously delayed. It is likely that any new Federal initiatives in this area will be joint Government-industry efforts, with industry and local public and private schools administering the programs and the Federal Govern- ment providing special financial assistance and sup- port services. There has been some recent controversy about new Federal efforts to regulate marine personnel. To date, these debates have focused on Government ef- forts to regulate operations, not training. The con- troversy over proposed Coast Guard and Occupa- tional Health and Safety Administration (OSHA) regulation of the commercial diving industry is an example. It is possible, however, that the debate may expand into discussions over whether to set mini- mum standards for such personnel as divers. There is some concern about the lack of detailed data on marine manpower supply and demand, an issue discussed earlier in the section on marine pro- fessional manpower. Some pilot studies of the marine manpower situation for given regions have been completed recently. 62 Proponents of these studies consider the reports to be necessary if educators and students are to have a full understanding of current and projected manpower needs. They would like to see more studies performed, perhaps with Federal financial support. Critics of the reports are likely to question the reliability of the methodology and pro- jections. They also will ask whether existing informal communication among educators, industry officials, and policy makers is not sufficient to meet the needs of the relatively small, close-knit oceans field. There appears to be little Federal interest at the moment in gathering detailed marine personnel statistics. The Bureau of Labor Statistics, the main agency involved in collecting employment data, does not generally make a distinction between marine and land-oriented employment. However, there is some new interest in vocational personnel statistics in general: the Education Amendments of 1976 di- rected the Office of Education to establish a new National Occupational Information Coordinating Committee to help vocational educators and others seeking information. 'Sea Grant Annual Report op. cit. note 28, pp. 30-32. 01 Sea Grant Annual Report, op. cit. note 28, pp. 35-41. r ' 2 Olympus Research Corporation. The New England Region Marine Manpower Situation. 1974-1985. Boston, Olympus Re- search Corporation, February 28, 1977. This report is part of the Marine Industry Education Project supported by the New England Regional Commission. See also: South Atlantic and Gulf Marine Manpower Project. Survey of Current and Future Manpower Requirements, 1977-1980. Jacksonville, Florida Junior College, July 1977. This is a report to the Coastal Plains Com- mission. VIII-25 Public Education Public education includes three activities: (1) pre- college education for students who may become specialists in marine science, marine affairs, or re- lated fields; (2) general precollege, college, and adult education for people interested in studying marine topics, but not in becoming marine special- ists; and (3) public information programs intended to foster citizen awareness and aid public participa- tion in Government decision-making. Small, but sig- nificant efforts now exist in all three areas, although they are recent developments. Two general objectives appear to guide Federal marine public education programs and similar pro- grams in nonmarine areas. One of course is to help both educate students and inform citizens. Second, like other Federal education efforts, these programs are designed to minimize Federal involvement in the actual management of schools and other institutions that inform citizens, such as the press and political organizations. The aim is to reduce the risk of a Federally dominated "monopoly" of information or ideas. The tension between these two objectives has led to the creation of Federal public education pro- grams, but with strong public and Congressional wariness about them. College Preparatory Programs The goal of Federal assistance in college prepara- tion — marine and otherwise — is reflected in the philosophy and operation of the National Science Foundation (NSF). Along with summer institutes for college teachers and the development of new college curricula, NSF has long been involved in parallel efforts at the precollege level. However, none of the major precollege curriculum development projects has dealt with marine science. Instead, NSF has ad- hered to a policy of developing new materials for the traditional science and social science disciplines, such as physics, biology, and economics. NSF seems to feel that high school training in the basic disci- plines is the proper background for students, whether they are going into a traditional field or an inter- disciplinary one such as marine science. Whereas the Office of Sea Grant funds the development of general precollege marine curricula, it is NSF that continues to be the major Federal agency supporting the development of precollege science education. Today, three NSF programs have the major re- sponsibility for precollege science education. One is the Pre-College Materials Development, Testing, and Evaluation Office, part of the Division of Sci- ence Education Development and Research in NSF's Directorate for Science Education. The fiscal year 1977 budget for this program was $1,540,000. An- other is the Information Dissemination Program of the Directorate's Division of Science Education Re- sources Improvement. Budgeted at $400,000 during fiscal year 1976, this program uses workshops and conferences for secondary school officials and teach- ers to inform them about new classroom materials, practices, and technologies. This Division also has a number of programs to assist undergraduate science education. Finally, there is a Secondary School Student Science Training program, funded at $2 million in fiscal year 1977, which operates summer programs for high school students. Of the approxi- mately 150 courses held during the summer of 1977, six focused on marine-related topics. 63 One other marine-related precollege effort is the Navy's "junior ROTC" program for high schools. General Marine Education Present Federal Policy The objective of assisting education — in this case, general marine education for precollege students, college students, and adults — is reflected primarily in the Sea Grant program, which has long had a mis- sion much broader than science and science educa- tion per se. Several ideas underlie the notion that the Federal Government should help promote general education for nonspecialists in such fields as the marine area. One is the older notion that people should have a broad education, and not simply be specialists in their field of employment; this is partly for reasons of personal enrichment, and partly be- cause of a belief that the citizens of a democracy should be informed about a range of matters. Also involved is the newer idea that marine subjects should be taught in the schools, partly because ma- rine resources are becoming more important to the country's prosperity and well-being, and partly be- cause the associated Government programs and pol- icy issues are becoming more complex. The notion of limiting Government involvement in education applies here as elsewhere. As a result, the NSF-type concept of a Federal program to de- velop new curricula, sponsor special teacher training, or provide general lecture activities often is used as a model for the general marine education efforts of Sea Grant and others. " Budget information from U.S. Congress, House, Committee on Appropriations, op. cit. note 29, pp. 846-847, 835-836, 816. VIII-26 Federal Programs While NSF has not developed precollege cur- ricula that deal with marine topics per se, the new marine science college courses that it has helped to develop have benefited nonspecialists as well as students who plan to go into marine science or engi- neering, or related fields. In addition, the Founda- tion's Public Understanding of Science Program is involved; recently it funded a traveling lecture series entitled "Voyages Into Ocean Space." The Office of Education administers the Envi- ronmental Education Act (Public Law 91-516). Some of the activities of the Office under this Act deal with the marine environment. The fiscal year 1978 budget for the entire program is $3.5 million. Of this, about half goes to the support of elementary and secondary education, mostly for the development of new curricula. About 30 percent of it goes for adult community education, and the remaining portion supports research and develop- ment contracts. 64 The Coast Guard coordinates a national boating safety education program in cooperation with all the States and various safety organizations. Finan- cial as well as technical and administrative assist- ance is provided. The 46,000-member volunteer Coast Guard Auxiliary also is active in boating safety education. One ongoing program is to intro- duce boating education into the public school sys- tems and to certify instructors. The Coast Guard also distributes boating safety information to the media to build public awareness about safety. However, the Office of Sea Grant is the main agency in the field of general marine education. These activities are conducted through both the regular Sea Grant college programs and workshops and other programs of the Marine Advisory Service. During fiscal year 1976 and the transition quarter, the "Other Education" category included 55 projects supported by more than $2 million in Federal funds and $1.3 million in matching funds. Most of this money goes for traineeships and the development of new marine courses and curricula on both college and precollege levels. One major program is at the University of Delaware, where curricular materials in marine subjects for kindergarten through high school have been developed and evaluated. Its set of 75 learning units relating to the marine and coastal environment have been distributed nation- wide. 65 Recent Developments In the past 2 years, both the Sea Grant Office and the Office of Education have been developing new policies for general marine education. They have also been in contact with each other, a step which recently led to an agreement between the two agen- cies to share information and coordinate programs. Both agencies seem to be influenced by growing public interest in marine education. One indication of the interest is an increasing number of marine courses around the country. Another is the recent creation of a Journal of Marine Education. This trend appears to be influenced by the general na- tional interest in the environment, and in fact "the new approach" in marine education is concerned with more than just marine science. The Office of Education's interest in the marine environment is reflected in its support of the pre- viously mentioned University of Delaware project on curriculum development. However, the Office also is interested in developing new materials to inform students about marine careers; this is part of its overall "career education" program. A 1975 study funded by the Office examined general marine educa- tion, particularly the career-oriented part, and ap- pears to have stimulated much of the current Federal interest in the subject. 66 At about the same time, people from the various Sea Grant colleges began discussing what Sea Grant's role should be in precollege marine education. An April 1976 workshop at the Virginia Institute of Ma- rine Science (VIMS) at Williamsburg, Va., examined the possible need for a redefinition of the Sea Grant role in this field. The result was an agreement that the oceans are increasingly important; that there is need for a "marine-literate" society as well as for programs which train marine professionals, techni- cians, and public managers; and that Sea Grant should be a catalyst in developing a new approach to marine education. A quasi-official rationale for this new approach was developed after the conference by Harold Good- win, formerly associated with the Office of Sea Grant. 07 In a related document, Goodwin mentions that NSF, the Office of Education, and State and local agencies are involved in marine education. Then he adds, "But to other Federal agencies, marine educa- tion activities of any kind are peripheral to their main concerns, and Sea Grant remains the home and focus for marine education." 6S Goodwin and others are 04 U.S. Congress, House, Committee on Appropriations. De- partments of Labor and Health, Education, and Welfare Appro- priations for 1978, Hearings before subcommittee of Committee on Appropriations, 95th Congress, 1st session, part 5, p. 45. r ' 5 Sea Grant Annual Report, op. cit. note 28, pp. 32, 39-40. The University of Delaware program also has been supported by the Office of Coastal Zone Management, the Office of En- vironmental Education, and others. m U.S. Department of Health, Education, and Welfare, Office of Education. Marine Education: Guidelines for Curriculum De- velopment. Boston, Olympus Research Corporation, June 1975. " 7 Harold L. Goodwin. "An Introduction to Marine Education." Newark, Del., University of Delaware Sea Grant College Pro- gram, April 1977 draft for comment. cs Harold L. Goodwin. "Perspective on Sea Grant Marine Edu- cation." Waimanalo, Hawaii, The Oceanic Institute, August 1975. VIII-27 still formulating ideas about the exact role Sea Grant should play in this field; early recommendations focus on a liaison and coordination role for the na- tional Sea Grant office and curriculum development and liaison roles for the Sea Grant colleges. In stating the position of the Office of Sea Grant on precollege education, Director Ned A. Ostenso wrote to directors of Sea Grant Colleges, Institutions, and Programs in March 1977: "The Office of Sea Grant strongly endorses the position that marine topics are an im- portant element of a balanced pre-college educational program and recognizes that no single curriculum or program is ade- quate to the needs of the Nation. "The expertise and infrastructure of the Sea Grant system can and should con- tribute to improving the marine content of pre-college education through coopera- tion with and support of local, regional, State, and national organizations and agen- cies that foster and are responsible for pre- college education. "These Sea Grant-sponsored activities sup- porting pre-college marine education will be conducted through existing administra- tive procedures. No special guidelines will be promulgated." Precollege education now is considered an integral part of the Sea Grant Program, and in fiscal year 1977 Sea Grant increased its spending in this area by 300 percent. On August 25, 1977, the U.S. Com- missioner of Education and the Administrator of NOAA signed a "memorandum of agreement." In the words of an accompanying press release, its pur- pose is "to help develop a coordinated marine en- vironmental education program at Federal, State, regional, and local levels." Under the agreement, the agencies will share information and the Office of Education will encourage State departments of edu- cation, educational organizations, and colleges to work closely with existing marine-oriented institu- tions and programs such as the Sea Grant colleges. Special emphasis will be placed on Sea Grant projects dealing with the marine education of inner-city and minority children. 60 Sea Grant officials emphasize that this will not result in a new spending program, but rather is aimed at redirecting existing programs and improving co- ordination between the two agencies. At this point, it is unclear what specific direction these efforts will take or what will result. To date, the proponents of the new approach in general ma- rine education have focused on developing a rationale and a basic strategy; we will have to wait for the details. In addition, if proponents want increased Federal funds for this effort, they will have to con- vince the Government that there is a pressing need for a larger Federal effort and that it deserves higher priority than other educational programs. Public Information Federal Policy Two basic concepts underlie the public informa- tion programs of the ocean agencies. One is the traditional concept that the Government should make information on its programs available to help inform the citizenry. However, there are certain difficulties here, reflecting tension between the overall objectives of providing Federal assistance while at the same time assuring that the Federal role remain limited and controlled. There is the question of who should present this information to the public; by-and-large, the traditional American approach has been to let intermediate institutions such as the press filter the Government-supplied information. There is also ten- sion over the related question of when the legitimate efforts of an agency to publicize its actions become an effort to propagandize. In general, the present American answer to this dilemma again is to let the press and others select what they will and will not be passed on to the public. Results of the first concept are the traditional public information programs of the agencies, which focus on issuing press releases, facilitating interviews and giving other assistance to the press, answering requests from the public, and issuing some general brochures or providing speakers that describe the agency and the importance of its mission. One vari- ation on this theme is the Sea Grant Communica- tions program which uses radio and other media to distribute educational materials. However, in recent years another, often contro- versial, concept has influenced the agencies. This is the notion that Government offices should help, or at least not hinder, efforts by the public to participate in Government decision making. This concept itself is a reflection of citizen awareness of the size and impact of new Government programs, such as those in the marine field, coupled with what one author calls "the primary purpose of citizen par- ticipation — increasing the responsiveness and ac- countability of Government to the citizens affected by public decisions." 70 The concept of Government aid to public par- ticipation appears to have two parts: increasing ac- "" U.S. Department of Commerce. "NOAA, Office of Education Sign Marine Education Pact," News Release NOAA 77-281, November 15, 1977. "" Nelson M. Rosenbaum. Citizen Involvement in Land Use Governance. Washington, D.C., The Urban Institute, 1976, p. 1. VIII-28 cess to information and structuring decision-making processes so that citizens actually can affect deci- sions. The latter is a matter of organization. But the emphasis on more information has led to major changes in the way agency public information pro- grams operate. The Freedom of Information Act has required agencies, including ocean agencies, to be more open. The environmental impact statements required under the National Environmental Policy Act of 1969 in effect require agencies to inform, before decisions are made, what the proposed action is, what impacts it is likely to have, and what the al- ternatives are. More recently, some agencies, such as the Nuclear Regulatory Commission, have pro- vided technical assistance to citizens "intervening 1 ' in adjudicatory hearings. There is now a debate over whether agencies such as NOAA also should provide financial assistance to such "interveners" in order to enable them not only to participate in proceedings, but also afford access to researchers and experts who can provide them with information. Programs and Recent Developments Nearly all Federal agencies operate information offices. The public information role is recognized as a legitimate function of the agencies. There is a risk, however, that well-intentioned agency informa- tion programs can be used as promotional tools to advance the parochial interests of the agency. This accusation was made by several groups who watched the Energy Research and Development Administra- tion's activities during the 1976 nuclear power refer- endum campaign in California. Whether enough effort is being expended to make marine programs "visible" has been questioned from time to time. The lack of an "ocean constituency," that is, a public understanding of the importance of the ocean and its role in the economic, social, and strategic future of the Nation, has been cited as a problem which makes it difficult to seek support for ocean initiatives. 71 Much of the impetus for more precollege marine education comes from these same concerns. What is not entirely clear, however, is whether lack of public attention to ocean matters is real, and if so, whether it is the result of insufficient Government effort, or a feeling among the public that ocean matters really are small in the grand scheme of national issues, or both. At the same time, though, general public interest in the oceans has increased in recent years, as evi- denced, for example, by the popularity of the Jacques Cousteau television specials, the National Geographic Society series, and by the amount of press coverage given to such ocean matters as the tanker accidents of the winter of 1977. Also, several recent innovative attempts have aimed to make the public more aware of the oceans and of Government programs. Two examples may give a flavor of these efforts. One was the "oceans course by newspaper" effort of 1977. Entitled "Oceans: Our Continuing Fron- tier," this series of articles was carried by some 350 newspapers, and about 200 colleges and universities offered "Oceans" as credit and noncredit courses in conjunction with the newspaper series. The series covered literature and art as well as science and policy. It was produced by the University Extension, University of California at San Diego, with funding from the National Endowment for the Humanities. 72 Second, NOAA's Office of Coastal Zone Manage- ment has a "coastal awareness program." It differs from traditional public information programs, be- cause it not only distributes its materials, but also contracts with various groups to have them prepare information packages. To date, the League of Women Voters, the Natural Resources Defense Council, and several industry groups have been involved. The Office of Coastal Zone Management also con- tains some of the newer programs oriented toward facilitating public participation. The Coastal Zone Management Act requires that States involve the public when developing their coastal zone plans, and the Federal office advises the States about developing both the information and organizational sides of their public participation programs. The Office also advises the general public about how to participate in coastal zone programs; this information is presented as part of the "coastal awareness program." Also, the Oceans Program of the Congressional Office of Technology Assessment has developed new ways to inform the public about policy issues and choices; OTA has a public participation project that carries on these activities. Major Current Issues In the future, several issues are likely to dominate discussions about general marine education and pub- lic information programs. In turn, resolution of these issues could affect significantly not only the Federal role in these areas but how much the public under- stands and supports ocean programs. 71 U.S. Congress, Senate, Committee on Commerce, Sci- ence and Transportation. Nomination — Administrator, National Oceanic and Atmospheric Administration, Hearing before the Committee on Commerce, Science and Transportation, 95th Con- gress, 1st session, July 12, 1977, p. 91. 72 George A. Colburn. "'Oceans: Our Continuing Frontier,' A National Oceanic Educational Program Prepared by Courses by Newspaper," in Marine Technology Society and Institute of Electrical and Electronics Engineers, Oceans '77 Conference Re- port 1: 11A-1 to 11A-3. VIII-29 There probably will be no major issues dealing with the precollege training for those who will be- come marine specialists. There has been some con- troversy over the National Science Foundation's science education programs, and that may continue, but will not particularly affect marine science. In general marine education, the major issue will continue to be what role the Federal Gov- ernment should play, given, on the one hand, ap- parently increasing interest in the oceans and, on the other, not only traditional concerns about limiting the Federal role in education, but also present-day budget limitations. Proponents of a larger Federal role continue to encourage Sea Grant and the Office of Education to enlarge their marine education ef- forts, especially curriculum development, now that the two agencies have signed an interagency agree- ment highlighting the importance of the subject. Critics demand clear evidence of the need for a larger Federal role as well as detailed plans before supporting any significant new effort. Since large budget allocations are unlikely, the issue may focus on whether Sea Grant colleges should concentrate their limited general education funds on curriculum development or on hiring liaison people to work with State education departments. While the basic concept of "public participation" increasingly seems to be accepted, in some cases even mandated by law, there is still controversy about what agencies should do to facilitate such participa- tion. Debate about organizational arrangements will focus both on the structure for hearings, advisory committees, and so forth, and on the proper role for the environmental and public interest groups which claim to represent the public. Debate about the information side of agency programs is likely to focus less on the public's legal right to information and more on possible ways to help public groups find and use this information. One present controversy that will continue is the question of whether NOAA should provide financial assistance to intervenors, enabling them not only to participate in hearings, but also to afford researchers and expert advisers, or whether, as some argue, the agency simply should improve public education and provide more information to special interest groups. If proponents of financial aid prevail, public partici- pation will become more institutionalized in NOAA, though the agency will face the question of who is to be selected to represent "the public." In any case, the very fact that this and similar debates now occur is further evidence of the changes and issues which now appear throughout the whole field of marine manpower and education. VIII-30 Chapter IX: Organizing the National Ocean Effort Introduction In 1969, the year that Our Nation and the Sea was issued by the Stratton Commission, Federal ocean programs were located in 6 departments, 4 independent agencies, and 17 agencies or sub- agencies within the departments. Ocean programs in 1977 were administered by 9 departments, 8 inde- pendent agencies, and 38 agencies or subagencies (fig. 9-1 on pages IX-36 and IX-37). Since 1972, Congress has enacted eight laws with major implications on ocean matters, including the Federal Water Pollution Coastal Act Amendments of 1972, the Marine Mammal Protection Act, the Marine Protection, Research and Sanctuaries Act, the Coastal Zone Management Act of 1972, the En- dangered Species Act, the Deepwater Port Act of 1974, the Fishery Conservation and Management Act of 1976, and the Coastal Zone Management Act Amendents of 1976. The nature of this legisla- tion emphasizes the management and conservation of the ocean and coastal resources, in contrast to legislative authority existing prior to 1970, which was largely directed toward providing ocean-related services, education, and marine science and en- gineering. This shift can be attributed in part to a change in the national mood in the early 1970s in which concern for environmental values came to the fore. Many of the legislative actions by Congress in the early 1970s dealing with ocean matters were designed to protect the marine environment or a component of it. Failure of the United States to adopt an explicit "national ocean policy," the alleged lack of coor- dination among agencies administering ocean pro- grams, and the absence of what advocates term an ocean commitment have been attributed to lack of a single ocean focus within the Federal structure. Although the National Oceanic and Atmospheric Administration (NOAA) was created by Reorganiza- tion No. 4 in 1970 in response to the recommenda- tions of the Stratton Commission, it fell far short of the powerful comprehensive, independent ocean agency conceived by the Commission. While the center of civilian ocean activities is perceived by many to be in the Department of Commerce's NOAA, a major share of the actual functional activ- ity is located in other line departments. In fact, the General Accounting Office (GAO) estimates that only 7.9 percent of the total Federal budget related to marine science activities and oceanic affairs dur- ing the period through 1974 was budgeted to NOAA. 1 At the same time, it has to be acknowl- edged that proliferation of related functions among Federal agencies is common. Many agencies have educational activities, many are involved in recrea- tion or environmental protection, and many perform related research functions. Whether the proposals for organizing around the ocean as a resource have merit must be evaluated in light of the increased use and importance of the ocean, the domestic and international economic set- ting, and the ranking of ocean resources and the ocean environment among other national priorities. Possible reorganization of the U.S. ocean effort must be considered in the context of other national goals. Reorganization is essentially politics itself, and as such can be used to redistribute political influence, alter the substance of public policies, and signal the intention of the Government to place priority on a national goal. Creation of a Department of Energy was in part a statement by the current Administra- tion of the importance it attaches to the topic. Al- though generally justified on the basis of increased efficiency and improved administration, reorganiza- tion is not necessarily the most promising means to achieve efficiency and reduce cost. 2 Therefore, the central question with regard to possible reorganiza- tion of ocean programs may depend less on the frag- mented nature of ocean responsibilities among the Federal agencies, with the possible loss of efficiency, than upon the pragmatic question of: Is the ocean a sensible integrating theme around which to organize? And the corollary: Is the ocean important enough to justify reorganization? Also, are the deficiencies perceived in the administration of ocean-related pro- grams best cured by reorganization or other means? 1 U.S. General Accounting Office. Federal Agencies Adminis- tering Programs Related to Marine Science Activities and Oceanic Affairs, GGD-75-61, Washington, D.C., GAO, 1975, p. 3. 2 Herbert Kaufman. "Reflections on Administrative Reorgani- zation," in The 1978 Budget: Setting National Priorities, Joseph A. Pechman (ed.). Washington, D.C., Brookings Institution, 1977, p. 392. IX-1 This chapter discusses the organization of the Federal ocean program in the context of organiza- tional theory, the importance of organization in developing effective "functional policy," the trade- offs of reorganization, and the historical development of ocean-related Government organization, and in- cludes an analysis of proposals that have been ad- vanced to reorganize the Nation's ocean effort. More Effective Administration: An Elusive Goal of Government Trends in Governmental Organization Since Congressman Albert Gallatin sought to en- force the limits of appropriations against the Secre- tary of the Treasury, Oliver Wolcott, in 1795, both the Congress and the President, like Diogenes in the quest for an honest man, have searched for better ways to conduct the business of Government. Administrations for decades have sought to re- organize the executive branch for one or more of the following reasons: (1) to deal with specific prob- lems, e.g., energy, housing, or social programs; (2) to improve efficiency and reduce waste; or (3) to recoup power from the bureaucracy. Congress, wherein the power to shape and form the Govern- ment resides (and from which the Presidency must obtain its comprehensive reorganizational powers), has also periodically sought reorganization for dif- ferent reasons — often in dissatisfaction with the way the Executive Branch administers the laws. The reports of the Dockery-Cockrel Commission (1895), Keep Committee (1909), Taft Commission (1913), Joint Committee on Reorganization (1923), Byrd Committee (1938), Brownlow Committee (1939), First and Second Hoover Commissions (1949 and 1955), and the Ash Council (1970) com- prise the remains of earnest attempts to reorganize the executive branch. 3 Virtually every reorganiza- tion proposal heretofore has been based on the as- sumption that (1) administrative organizations should be structured by like functions and purpose, (2) overlapping functions should be minimized, and (3) control should be unified. 4 Reorganization trends invariably lead to proposals for larger Cabinet-level departments as a strategy to unify control and consolidate authority. As a conse- quence, prescriptions for reorganization have sug- gested the creation of "superdepartments" with mixed constituencies that cut across the lines of statutory responsibility and congressional commit- tee jurisdictions. While consolidation is the current vogue in Government organizations, a small number of commentators in public administration see the tendency toward bigness as a series of tradeoffs between: good policy-making on one hand and good management on the other; management by narrow objectives contrasted with the difficulty of having to respond to mixed constituencies, and flexibility of management being substituted by layered, hierarchial management.'' Responding to broad constituency interests and to multiple congressional committees places added burdens on large composite organiza- tions. On the other hand, smaller independent sub- Cabinet-level agencies are limited in effectiveness by: (1) potential for parochial response to narrow con- stituent groups; (2) inability to influence high-level policy decisions at the Cabinet level; (3) difficulties in coordinating policy among numerous small units; and (4) lack of critical mass to undertake large tasks in a comprehensive manner. Clearly there is no panacea. Good organization — whatever form it may be — does not ensure successful policy and program execution, nor does poor organi- zation preclude them. The key is to coalesce related functions into a unit of government that has a critical mass sufficient to influence high-level policy, yet is small enough to pursue identifiable objectives and flexible enough to adapt to changing needs. The organization of government is in itself an art and not a science. The possible combinations and permutations for organizing governmental functions are almost infinite; moreover, organizational theory is of marginal value because of the reality of politics, the constraints imposed by governmental customs, traditional operating procedures, and established budgeting and accounting procedures. Like policy- making itself, the design of organizations must bal- ance conflicting objectives. The appropriateness of organizational arrangements depends on the nature of the policy problems with which they must deal." The question of atmosphere, setting, and environ- ment in which the decisions and execution of policy are made is an oft-neglected quality of organization. 3 U.S. Congress, Senate, Committee on Interior and Insular Affairs. Federal Energy Reorganization: Historical Perspective. 94th Con., 2d sess., Ser. 94-46, 1976. * Peri E. Arnold. "Reorganization and Politics: A Reflection on the Adequacy of Administrative Theory." Administrative Re- view May-June 1974: 206. c Warren G. Benru's. Changing Organizations: Essays on the Development and Evolution of Human Organization. New York: McGraw Hill Book Co., 1966. See also: J. C. Davies. "Reor- ganization of Federal Agencies." Conservation Foundation 20 October 1976, Washington, D.C. 6 U.S. Commission on the Organization of the Government for the Conduct of Foreign Policy. Final Report, Organization for Foreign Policy, June 1975, p. 1. IX-2 Failure to recognize that executive administration is a political process as much as is enacting legislation tends to lull reorganizers into thinking of organiza- tion mechanically. In fact, administration has been referred to as the "eighth political process." 7 Reor- ganization is thus more than the mere drafting of uncluttered organizational charts. It must also be recognized that no matter how the Government is organized, it is impossible to define and design programs in such a way as to eliminate all overlaps and potential conflicts among agencies — should that objective be considered desirable. At best, we can achieve no more than a less than op- timal solution under any reorganizational scheme. Reorganization can even be counter-productive un- less the net gains in efficiency offset the losses that inevitably result from reestablishing group dynamics, restructuring agency loyalties, and overcoming psy- chological impacts on personnel. Although reorganization is ultimately aimed at changing the character and behavior of an organiza- tion, it can work in a negative manner by making change more difficult than it was before. If the net result of reorganization is to pile administrative echelon upon administrative echelon in an unre- mitting quest for coordination, symmetry, logic, and comprehensive order, the lines of communication may be stretched, morale lowered, and administra- tive entropy increased. Thus, there are negative factors associated with reorganization as well as positive potentials. Lest the result be a zero-sum game, the advantages and disadvantages must be weighed carefully. Because of this, reorganization is seldom implemented unless there is an obvious discontinuity or dysfunction in achieving a primary national goal. Of the eight attempts at wholesale reorganization of the Federal Government since the turn of the century, only incremental changes were made in each case, and those were generally in areas of major Government commitment, e.g., energy, housing, transportation, space, welfare, and environ- ment. In other words, reorganization does not breed importance — importance breeds the need to reor- ganize. The Trilogy of Organization Too often reorganization of the executive branch is discussed as though governmental processes are an undifferentiated continuum from enactment of legislation through execution. There are actually three distinct executive functions to be considered: (1) formulation of policy, (2) implementation of programs, and (3) establishment of priorities. The first, formulation of policy, is centered in the White House within the executive branch. The second, implementation, involves execution by the agencies. The third, priority, is established by the budget process. Government reorganization is most frequently dis- cussed in the context of agency implementation, yet this might not be the weakest link in the chain of "functional policy." Ocean policy, for instance, is made at every step in the governmental process from enactment of legislation through administration of the programs in the field. The whole can be more than the sum of the parts. Each of the three govern- mental functions must be considered separately and jointly with respect to the effectiveness of the Federal Government in allocating the use of and protecting the Nation's ocean and coastal resources. Nor can the linkages between the Congress be ignored in any organizational scheme. Congress both establishes policy through legislative authority and participates in setting priorities through appropria- tions. The evolution of objectives and the statement of purpose is requisite to the development of national policy and often results from spirited interaction between the Executive and the Congress. Organiza- tion of the Federal Government's administrative framework to pursue national goals is a responsi- bility shared by the President with the Congress, through its oversight and investigative activities, and is an important factor in ensuring the effectiveness of public policy. Budget requests and appropriations serve as indicators of relative priorities among ocean programs as well as between ocean activities and other budgetary items competing for finite Federal funds. In the aggregate, these three processes deter- mine functional ocean policy. Formulation of Ocean Policy "Policy," by definition, is the goals, plans, and procedures of a government body. It embraces, therefore, both substance and procedure. Although the point of departure for developing national policy is the identification of "national goals," this is an optimistic concept that in reality seldom evolves as 'Paul Appleby. Policy and Administration. Montgomery: Uni- versity of Alabama Press, 1949. a conscious process. Although consensus on tra- ditional values is common, agreement on specific policies that government should follow is extremely rare. 8 In the conventional sense, however, national ocean policy is set by the interaction of the legis- 8 Michael N. Davidson, Alan M. Hershy, and John M. Bayne. One Nation, So Many Governments. New York: Lexington Book, 1977, p. 141. IX-3 lative, executive, and judicial branches of the Federal Government through the identification of goals and the development of procedures and organizations to use the ocean's resources and protect its environ- ment. The United States, being a pluralistic society and operating through a representative government, is pursuing a number of sometimes conflicting, societal goals, simultaneously. Balancing the objectives of society is the essence of the political process. U.S. ocean policy is an integral part of legislative en- actments dealing with natural resources, environ- ment, national security, science and technology, energy, education, labor, marine transportation, and commerce. Our national ocean policy is complex and sophisticated and has not been, nor can it be, reduced to a simple statement of goals and pro- cedures. "National goals," although often referred to as if they are tangible items, are generally no more than broad, ambiguous generalizations. Goals are the wellspring of governmental policy and are derived from collective reasoning and public debate, often not in an institutional framework but in the value system of contemporary society. However, multiple goals often interact and even conflict with one an- other. Energy production and preservation of en- vironmental values are frequently in conflict. Energy conservation and economic growth may similarly work in opposing directions unless the Gross Na- tional Product can be decoupled from energy use. Within the context of competing demands on the Federal budget, almost every goal is competing in some sense with a subset of related and unrelated goals for available funds. One need look no further than the goal of protecting certain coastal resources, weighed against the development of Outer Continen- tal Shelf oil and gas, deepwater ports, water pollu- tion control, ocean dumping, fishery management, and port development and use to be impressed with the close connection among these Federal resource management policies and the impacts they may have on each other. The setting in which ocean policy is established under the present organizational system tends to favor diversity at the expense of consistency. With ocean programs scattered throughout more than 50 Federal governmental agencies, and with jurisdic- tion for ocean-related legislation shared by 39 sub- committees in 12 standing committees of the House of Representatives and 36 subcommittees in 10 standing committees of the Senate, the policy-making machinery is diffused in both the executive branch and the Congress. To achieve consistency of purpose in public policy, however, there must be a mechanism to pe- riodically review the course of governmental actions and analyze both the effectiveness and currency of the policies as well as the interactions of the various programs. The responsibility for this review is shared by both the Congress and the Executive, but neither have adequate means for reviewing and formulating comprehensive and consistent ocean programs at this time. The task is made even more difficult because ocean affairs range broadly from energy policy through environmental protection to international diplomacy. To ask for complete consistency would be to hold out false hopes. How the rational devel- opment of ocean policy and the maintenance of consistency among the Federal ocean programs can be ensured presents a major challenge to both the Congress and the President. Role of the White House in Ocean Policy Many observers in the ocean community believe that the White House should play a more active role in the development and oversight of ocean policy. These conclusions are based in part on the historical role that the Executive Office of the Presi- dent has played in ocean affairs from time to time and in part on the concern that ocean matters do not receive sufficient attention on a consistent basis. Some also see what is perceived as a failure to coor- dinate the several Federal mission agencies which deal with disparate parts of ocean programs as a reason for White House intervention in the admin- istrative process. These observers have to recognize, however, that all issue areas of national importance cannot and should not receive individual attention from special policy groups within the White House. The prescription for a coordinating mechanism seems to take the same form whether dealing with oceans, poverty, science, telecommunications, or in- ternational and national security programs. The scenario follows a set pattern: (1) establishment of an interagency committee chaired by an agency head with no staff; (2) designation of a "neutral" chair- man who is provided a staff; (3) transfer of coordi- nating functions to the White House or Executive Office of the President and reconstitution as a Presi- dential advisory council. 9 In the case of oceans, this circuit has been completed once and has started over again. The trend toward proliferation of special White House policy groups, which began with the creation of the National Security Council (NSC) shortly after the conclusion of the Second World War, was reversed by Reorganization Plan No. 1 of 1977 which eliminated nine of the specialized policy units in the Executive Office of the President, •Harold Seidman. Politics, Position, and Power. New York: Oxford University Press, 1970, p. 165. EX^ transferred the coordinative and operational func- tions of special units to mission agencies, and re- structured those units which remained in the White House. 10 Coordinating machinery is necessary only when coordination cannot be achieved by sound organi- zation, good management, and formal and informal cooperation among agencies engaged in related and mutually supporting activities. Consolidation of pro- grams through reorganization of the ocean effort within the responsible executive departments might improve coordination among ocean programs. How- ever, the proponents of a White House-centered effort to oversee ocean affairs see benefits in the added stature and influence caused by association with the Executive Office of the President or the White House staff. Historical Role of the White House in Ocean Policy Marine Science Council The National Council on Marine Resources and Engineering Development — known as the Marine Science Council — was created concurrently with the Stratton Commission by the Congress in 1966. 1X The Council was established as a temporary Cabinet- level interagency group in the Executive Office of the President. The Vice President was chairman as designated by statute and had the responsibility to develop and advance a comprehensive program deal- ing with all aspects of marine science activities. Under the chairmanship of Hubert H. Humphrey, the Council was visible, and according to observers, at least partially successful and active in exercising leadership in ocean science and technology policy. However, 3 months before its expiration, the author- izing legislation for the Council was terminated in 1971 allegedly for "lack of interest" of the Adminis- tration at that time. 12 Since then, ocean science policy coordination has been relegated to lower sub-Cabinet level inter- agency coordinating committees of various kinds. The reporting requirement of the Marine Resources and Engineering Development Act continues to be fulfilled annually under the auspices of the Federal Council for Science and Technology with the assist- ance of various science-related policy groups that have tended to appear and disappear over time. First, the Office of Science and Technology (OST), then the Science and Technology Policy Office of the National Science Foundation (NSF), and cur- rently the Office of Science and Technology Policy (OSTP). Title I of the Marine Resources and Engineering Development Act, the authority for both the Marine Science Council and the Stratton Commission, is essentially dormant although it still remains in the U.S. Code. The declaration of ocean policy for the nation in the 1966 act does remain, although ignored 10 U.S., President, "Presidential Message to the Congress Trans- mitting Reorganization Plan No. 1 of 1977," 18 July 1977. Presi- dential Documents, 13:1007-1016. "Marine Resources and Engineering Development Act, 33 U.S.C. 1101-1108. 12 Edward Wenk, Jr. The Politics of the Ocean. Seattle: Uni- versity of Washington Press, 1972, p. 163. by most and bypassed by subsequent events. It re- flects the emphasis at the time of passage of the Act on the potential seen in using ocean resources. The policy objectives emphasize accelerated development, encouragement of private enterprise in ocean re- source use, and development of technology for vari- ous ocean uses. Resource protection is not men- tioned. The only remaining vestige of the policy focus on marine science is the report mandated by the Act, titled Federal Ocean Programs. The document re- flected the status of ocean activities in the Federal Government when produced by the staff of the Marine Sciences Council, but since then has dimin- ished in quality and quantity and has been released as much as a year-and-one-half beyond the required statutory date. For several years, the Federal Ocean Programs report has been compiled piecemeal as an interagency effort rather than by an integrated staff. Its contents vary in quality among the sections, little marine science policy guidance is provided in the document, and its usefulness is impaired by the un- even treatment given the sections by agencies that clearly consider it to be an onerous chore. The White House has shown little concern for the report, which helps explain the extended delays in its issuance. Science Advisory Structure At one time marine science and technology were the major focus of ocean policy. Subsequent to the spectacular space achievements of the Russians in the late 1950s, Federal priorities were shifted to space technology. Other scientific areas, including oceanography, were also the beneficiaries of the major emphasis on science. Thus, the Stratton Com- mission and the Marine Science Council which were created during the "grand period of science" were similarly oriented toward research and development. Before the establishment of the Marine Science Council, there were efforts in the 87th Congress in the early 1960s to give the then-existing Office of Science and Technology (OST) responsibility for pre- siding over a coordinated national program of ocean- ography to be aided by an Advisory Committee on Oceanography. It is not surprising, therefore, that the science advisory functions within the Executive IX-5 Office of the President have significantly influenced national ocean policy over the years. A special assistant to the President for Science and Technology was appointed, and in March 1959 the Federal Council for Science and Technology (FCST) was formed, followed by the creation of the Interagency Committee on Oceanography (ICO) within the FCST. The expression of interest by the Administration in ocean science and technology has been cited by commentators as the catalyst which prompted the Congress to create formally the Marine Science Council in 1966. A bill to this effect was pocket-vetoed upon adjournment of the 87th Con- gress, allegedly for administrative rather than sub- stantive reasons. With the termination of the Marine Science Coun- cil in 1971, the responsibility for marine science oversight within the Executive Office of the Presi- dent was shifted to the Office of Science and Tech- nology (OST) until its dismantlement in 1973. Since that time, and until the creation of the Office of Science and Technology Policy in 1976, 13 the Execu- tive Office of the President was without in-house counsel for marine science and ocean affairs. During the interim, the science advisory role was served by the Director of the National Science Foundation (NSF), through the staff of the Science and Tech- nology Policy Office. However, that Office had no special unit to track the developments in ocean sci- ence policy. Present White House Policy Organization Policy Councils The policy formulation system within the White House generally reflects the style and character of the President. Some Presidents have relied on the advice of cloistered associates, others have developed a collegial atmosphere among Cabinet members, and some prefer to rely on staff analysis and trusted senior staff within the White House for policy guid- ance. However, each modern President has inherited a number of special policy councils that have been established in the Executive Office of the President by statute, reorganization plan, Presidential memo- randum, and executive order. Before Reorganization Plan No. 1 of 1977, under which the Executive Office of the President was restructured, 19 policy units dealt with general and specialized issue areas. Nine of these units were eliminated by the Reorga- nization Plan and earlier executive action. Before reorganization, various aspects of ocean policy were considered by four Cabinet-level coun- cils that were responsible for formulating general policy: (1) Domestic Council, (2) National Security Council, (3) Energy Resources Council, and (4) Council on International Economics Policy. In real- ity, these entities operated less like true councils in the sense of collegial decisions being made through interaction among Cabinet officers and more like specialized staff operations, but the councils did serve as a forum for resolving conflicts among com- peting domestic, international, economic, and energy policies. Reorganization Plan No. 1 eliminated both the Energy Resources Council and the Council on Inter- national Economics Policy. The Domestic Council's functions were melded into a Domestic Policy Staff within the White House Office and given responsibil- ity for managing the processes that coordinate the development of domestic and economic policy. The National Security Council (NSC), which was created by the National Security Act of 1947 (50 U.S.C. 402), remains as originally constituted. Its function is to advise the President with respect to the integra- tion of domestic, foreign, and military policies re- lated to national security. This new system of policy integration within the White House places the responsibilities for coordi- nating ocean policy upon the Domestic Policy Staff and the National Security Council. Additional input to policy formulation comes from the Office of Sci- ence and Technology Policy and the Council on Environmental Quality, which reside in the Execu- tive Office of the President. Emphasis of the new policy process and organiza- tion in the White House is placed on Presidential decision-making. The departments and agencies must, therefore, assume the major responsibility for reviewing the state of ocean policy on a continuing basis and provide policy initiatives for consideration by the White House. This places an added burden on the White House staff to ensure that agency ef- forts are properly coordinated and evaluated. The Presidential decision-making process will use a system of Presidential Review Memorandum (PRM) similar to that which has been developed by the National Security Council. The PRM process is a mechanism for developing a decision document through interaction of the White House staff and the agencies. It is an interactive process that uses inter- agency working groups coupled with staff input to produce a decision memorandum upon which the President can implement policy directions through directives and other appropriate means. The process described in figure 9-2 would be used for the most complex policy issues. An abbreviated version of the PRM process will normally be used for less complex policy decisions. The President plays an 13 National Science and Technology Policy, Organization, and Priorities Act of 1976, 42 U.S.C. 6601 et seq. (Supp. 1976). IX-6 President Senior Staff Agencies Policy Staff Issue Identification c I Policy Staff Draft Presidential Review Memorandum, (PRM) Interagency Coordination and/or Senior Staff Review President 'Policy Review Committee Special Coordinating Committee Interagency^ Working Group Policy Staff PRC/SCC Review Discussion Recommendation (Coordination] C I Policy Staff J U PRC/SCC Report and Decision Memo Interagency and Senior Staff Review President Annotated Decision Memo L < Policy Staff Draft Presidential Directive Coordination and Review by Senior Staff ■c President Presidential Directive Policy Staff Distribution and Monitoring Figure 9-2. — Policy Staff management system. IX-7 integral part of the PRM process from beginning to end. To this extent, the Presidential Review Memo- randum serves as a means to develop a working knowledge of the issue under review in advance of the final decision. The success of the PRM process will depend on the skill of the White House staff in organizing and directing the interagency efforts. The performance record of interagency task groups is mixed, at best. Strong leadership is required to over- come the potential for interagency conflict and pos- turing. The four-Council system that operated during the period 1970 through 1977 was criticized for its lack of focus on specific ocean problems. The overlap in Cabinet membership among the Presidential coun- cils, which resulted in redundancy and cross-mem- bership, was considered a strength of the system by some because the same Cabinet Officers and advisors were required to approach common problems from different points of emphasis — domestic, interna- tional, economic, and national security. 14 To the extent that the former system encouraged cross- fertilization in the development of ocean policy, the new system of staff integration and NSC review must engender the same multifaceted thinking in the PRM process. The strength of the new Domestic Policy Staff/NSC decision system is its ability to deal with individual issues in a comprehensive manner and present well-reasoned and well-researched options to the President for final consideration. The National Council on Marine Resources and Engineering Development (Marine Science Council), which was abandoned in 1971, was basically similar to the model of the National Security Council. Dur- ing its operation, the Council provided a focus on ocean science policy objectives. The National Secu- rity Council differs from the defunct Marine Science Council in that NSC considers foreign and domestic issues in light of its overriding concern for national security and foreign affairs. Cabinet-level representa- tion on the NSC is limited to the Secretary of State and the Secretary of Defense. Office of Science and Technology Policy With the dismantling of the science advisory struc- ture within the White House in 1973, there was a hiatus in top-level concern over science policy. While the director of NSF served in the capacity of Science Advisor, his remoteness from the President's office and lack of access reduced his effectiveness in influencing White House policy, according to some observers. Furthermore, no specific ocean science and technology effort was developed within NSF for oversight of ocean science policy. Enactment of the National Science and Technol- ogy Policy, Organization, and Priorities Act of 1976 15 by the 94th Congress reinstated a science policy mechanism within the Executive Office of the White House. The Office of Science and Technology Policy (OSTP), which was established by the Act and whose operations were subsequently modified by Reorganization Plan No. 1, is responsible for pro- viding input to the Presidential decision-making process for science policy and budget decisions. The three advisory and coordinating bodies established by the Act — the Intergovernmental Science, Engi- neering, and Technology Advisory Panel (ISETAP); the President's Committee on Science and Technol- ogy (PCST), which was charged by the Act with examining and analyzing the entire Federal R&D effort, including ocean science and technology; and the Federal Coordinating Council for Science, Engi- neering and Technology (FCCSET) — were altered by Reorganization Plan No. 1 of 1977. In lieu cf FCCSET, which served briefly as the umbrella orga- nization for the ocean-related interagency coordinat- ing activities, the Committee on Atmosphere and Oceans (CAO), was reconstructed as a sub-Cabinet working group chaired by the science advisor. CAO incorporated functions of the former Interagency Committee on Marine Science and Engineering (ICMSE) and the Interagency Committee on Atmos- pheric Sciences (ICAS). ICMSE had served as a sub-Cabinet level coordinating committee to improve communication among the ocean-related agencies. It was chaired throughout its 6-year history by the administrator of the National Oceanic and Atmos- pheric Administration. ICMSE served as an inter- agency forum with a focus on marine science and technology and was a coordinating body, but it played no formal advisory role in the development of ocean policy within the White House. The director of the Office of Science and Tech- nology Policy serves as the President's science ad- visor for a broad range of science-related govern- mental issues. The assistant director for Natural Resources and Commercial Services is responsible for the activities within OSTP concerning marine science and technology. Given the active role that the science advisory structure has played in the de- velopment and articulation of ocean policy, it is anticipated that the OSTP will assume responsibility for continuing the analysis and development of ocean-related R&D policy. Council on Environmental Quality The Council on Environmental Quality (CEO) was established by the National Environmental Pol- icy Act of 1969 (NEPA) to formulate and recom- u U.S. Congress, House, Committee on Merchant Marine and Fisheries. National Ocean Policy, Hearing before Subcommittee on Oceanography. 94th Cong., 2d sess., Ser. 94-43, 1976, p. 7. 15 National Science and Technology Policy, Organization, and Priorities Act of 1976, 90 Stat. 459. IX-8 mend national policies for improving the quality of the environment. 10 CEO consists of three members appointed by the President with the advice and consent of the Senate and was modeled after the Council of Economic Ad- visors which was created by the Employment Act of 1946. The Council and its support staff are attached to the Executive Office of the President. The advis- ory role of CEO is aimed at providing independent assessment of environmental policy. Emphasis is placed on analysis of long-term trends and condi- tions in the environment. Based on such analyses, the Council develops and recommends to the Presi- dent national policies to protect and enhance the quality of the environment. CEO differs from the prototype of other policy councils within the White House policy advisory structure in that the three members of the Council are full-time appointees like the Council of Eco- nomic Advisors, rather than representatives of the executive departments and agencies. This serves to insulate the Council from parochial views born of vested interests in organizational attitudes. It casts the Council in the role of honest broker. Its effective- ness as a coordinating mechanism depends largely on the skill and ability of the Council and its staff in persuading the mission agencies to pursue policies which will ensure adequate protection of the en- vironment. Its influence is proportional to the em- phasis that the President, and consequently the White House staff, places on CEO's advice. 17 The broad environmental mission of the Council involves it in virtually every governmental program dealing with natural resources and energy. As a con- sequence, CEO has devoted considerable attention to matters affecting the marine and coastal environ- ments. It has dealt with issues involved in OCS oil and gas leasing both onshore and offshore, ocean pollution questions and coastal zone management. In the past, CEO has had considerable influence over the functional environmental policy of the agencies through the review of environmental impact statements required by Section 102(2)(C) of the Na- tional Environmental Policy Act. Reorganization Plan No. 1 of 1977, however, transferred the re- sponsibility for review of the adequacy of agency impact statements to the Environmental Protection Agency (EPA), thereby eliminating the most direct leverage that CEO had to influence functional policy. However, CEO will continue to assert its opinions on the quality and substance of the individual impact statements. Because of the complexity and interactions in- volved in the White House policy process, it is im- possible to accurately evaluate the effectiveness of CEO as a policy-formulating body. To the extent that CEQ's track record has been evaluated, its weaknesses in the policy process have been ascribed to: (1) the limited size of CEO, which has com- pelled it to concentrate on immediate problems at the expense of comprehensive, long-range policy; (2) absence of mission-agency authority to direct and implement policy; and (3) lack of control over development and initiation of legislative environ- mental initiatives. 18 Implementation of the presidential review memo- randum process as a component of the White House policy staff management system may provide a more even-handed and less adversary atmosphere in which CEO can play a significant role in formulating ocean policy with regard to protection of the marine en- vironment. Ocean Policy Unit for the White House: An Enduring Proposal The quest for an improved process for developing and assessing national ocean policy repeatedly leads back to proposals for recreating a Cabinet-level White House policy unit to oversee ocean affairs. Between 1966 and 1971 the National Council on Marine Resources and Engineering Development — known as the Marine Science Council — served as a focus for national ocean science policy. 19 The Marine Science Council was as much a sym- bol of national commitment to the oceans as it was an effective policy mechanism. It existed during a period of rapid growth in the budget for ocean re- lational Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq. 17 U.S. Congress, Senate, Committee on Interior and Insular Affairs. The Council on Environmental Quality — Oversight. 94th Cong., 2d sess., 1977, p. 34. 18 Ibid., p. 42. 18 Marine Resources and Engineering Development Act, 33 U.S.C. 1101-1108. search and development. Since termination of the Council in 1971, ocean policy, including marine sci- ence, has been determined in the context of func- tional problems within the framework of the domes- tic and foreign policy councils remaining in the White House. Coordination, on the other hand, has been relegated to the Interagency Committee on Marine Science and Engineering (ICMSE), which up to its recent abolition provided a modicum of coordi- nation through committee communications, but served no formal policy-making role. Thus a symbol of national commitment to a comprehensive ocean program has not existed in the White House since 1971. Some maintain that such a symbol is not needed and that ocean issues can be successfully dealt with as they arise or are perceived within the present decision structure. There is little disagree- ment among observers that during the interim, 1971 through 1976, the Congress has taken the initiative IX-9 in determining the course of U.S. ocean policy. A de- tailed discussion of the role of Congress in develop- ment of ocean policy, as well as its organization for dealing with ocean questions, is beyond the scope of this discussion. The need seen by some for policy direction at the Presidential level has prompted a number of sugges- tions that an institution similar to the former Marine Science Council is again needed within the Executive Office of the President.- 11 To succeed, such proposals must demonstrate that there are significant issues requiring the attention of the President that are not adequately handled now. These specific proposals have been advanced in recent years — two in the form of legislation, and another as an academic concept — which would reinstate a policy council in the Executive Office of the President: (1) A National Council on Marine Science, Engineering, and Re- source Development (S. 709, 94th Cong., Senator Humphrey H. Humphrey), (2) A Marine Affairs Council (Professor John Norton Moore, 1976) and, (3) an Office of Maritime Affairs Coordinator (S. 3580, 94th Cong., Senator Robert Taft, Jr.). Marine Science or Marine Affairs Council Senator Hubert H. Humphrey, the first chairman of the former Marine Science Council by virtue of his tenure as Vice President during its existence, in- troduced S. 709, the Marine Science, Engineering, and Development Act of 1975, which proposed to establish a National Council on Marine Science, Engineering, and Development along with a coordi- native advisory panel. Like the Marine Science Council, the proposed council would be a Cabinet- level group chaired by the Vice President. Authority would be provided for employing a professional staff under the direction of an executive secretary to be compensated at a level not to exceed Executive Level II. The responsibilities of the proposed council under the Humphrey proposal would include: • Survey significant marine science activities. • Develop a comprehensive long-range program of marine activities. • Evaluate the conduct of the Federal marine sci- ence activities. • Insure cooperation and resolve differences among Federal departments and agencies. • Undertake comprehensive study of marine-related legal problems. • Study benefit/cost of marine resources, engineer- ing, and science to the United States. • Review all marine service activities annually. • Administer a grant program to foster participation in the overall Government marine program. The Humphrey proposal, if enacted, would consti- tute in effect a reenactment of the Marine Resources and Engineering Development Act of 1966, since S. 709 and the Act differ only in detail. A principal difference would be the creation of an Advisory Panel on Marine Science, Engineering, and Resource Development proposed by S. 709 which would in- corporate the National Advisory Committee on Oceans and Atmosphere (NACOA), supplemented by congressional members, to review and make recommendations on ocean affairs to the council. The statutory mandate of NACOA would remain unaffected. S. 709 also would reinstate the respon- sibility for publishing a detailed report of national marine programs — the report prepared through the science advisory structure and ICMSE since 1971. The emphasis placed on marine science and tech- nology in the Humphrey proposal contradicts, to some extent, the developing consensus that national ocean policy transcends the once-popular concept that marine science and engineering is the umbrella for all ocean policy. While the implied focus of the council proposed by S. 709 is weighted toward sci- ence and engineering, there would probably be no legal constraints for such a council, if staffed by aggressive professionals, to confront problems ex- tending beyond the traditional limits of marine sci- ence and technology. Professor John Norton Moore proposed the crea- tion of a Marine Affairs Council as part of a com- prehensive plan to reorganize the Federal ocean ef- fort. 21 The Marine Affairs Council, a variation of the Marine Science Council concept, would similarly be chaired by the Vice President and serve as a Cabinet-level forum for developing and coordinating national ocean policy. Its coordinative functions would be executed through an Interagency Task Force on Oceans Policy chaired by the Executive Director of the Marine Affairs Council, who would be supported by a professional staff. Reflecting the broader reorganization thrust of the Moore pro- posal, the Marine Affairs Council would deal with maritime transportation policy and merchant marine affairs in addition to what is customarily considered ocean policy. Office of Maritime Affairs Coordinator Maritime transportation has generally been treated in isolation from other ocean policy issues. It has been considered primarily as an economic tool of 20 Edward Wenk, Jr., op. cit. note 12, p. 200 et seq. See this reference for an analysis of the role played by the Marine Sci- ence Council in formulating and advancing such legislative con- cepts. 21 John Norton Moore. "The Crisis in Ocean Policy: Time for Change." Marine Technology Society Journal 10 October- November 1976: 3-10. IX- 10 commerce and secondarily as a factor in national security. The maritime statutes, primarily the Mer- chant Marine Act of 1936 and amendments, are administered by the Maritime Administration (MarAd) within the Department of Commerce. The national security element of U.S. maritime policy is vital to the Nation's defense posture. Lines of communication are necessary to project power to potential points of conflict throughout the world. It is questioned by some experts and Government offi- cials whether the current status of the merchant marine could support the logistics of a major mili- tary action. 22 The merchant marine also supports defense activities in peacetime and may play an ex- panded role in such areas as towing and salvage. In June 1976, the Transportation Institute, an organization representing U.S. -flag carriers, released a study in which it defined the need for beter coordi- nation of maritime and defense affairs. 23 The study recommended creating the post of "Maritime Affairs Coordinator," which would be responsible for (1) establishing and developing specific legislation for a national maritime strategy; (2) coordinating U.S. maritime research programs; (3) designing and co- ordinating an overall naval-merchant shipbuilding program, and (4) ensuring adherence to the provi- sions of the various existing laws relating to domes- tic and foreign trade, and increasing the merchant marine's support of national defense objectives. Senator Robert Taft, Jr. — who was the author of a white paper on defense in which he identified the Navy's need for cargo ships, oilers, and ammunition ships in the context of the U.S. Merchant Ma- rine 24 — introduced S. 3580 in the 94th Congress, a proposal to establish an Office of Maritime Affairs Coordinator in the Executive Office of the President. Patterned after the recommendations of the Trans- portation Institute, the office would be directed by a maritime affairs coordinator, who would serve as a member of the National Security Council. Member- ship in the NSC, according to the proposal, would provide for the maritime industry's input to national defense matters. The present membership of NSC is restricted to the Departments of State and Defense. The Maritime Affairs Coordinator proposed by S. 3580 would: • Develop and recommend to the President and the Congress a national maritime strategy pro- gram, including a civil-military shipbuilding pro- gram, and necessary legislation to effectuate such program. • Coordinate all Federal civil and military mari- time research programs. • Coordinate all other Federal maritime activities and make appropriate recommendations to in- sure adherence to the provisions of existing laws relating to domestic and foreign trade. • Represent maritime interests in national trans- portation planning. If the Office of Maritime Affairs Coordinator were modeled after the prototype recommended by the Transportation Institute, the maritime affairs coor- dinator would work directly with the following agen- cies to insure coordination of national naval-maritime interests: (1) Navy, (2) Coast Guard, (3) Maritime Administration, and (4) National Oceanic and At- mospheric Administration. The coordinator also would conduct continuous liaison with other Govern- ment agencies, as appropriate (e.g., Department of State, Department of Defense, and the Office of Management and Budget), and the relevant executive committees. Under the proposal, however, the Office of the Maritime Affairs Coordinator would be an advisory/consultative organization and would neither preempt nor directly affect the line responsibilities of MARAD for administering the maritime programs authorized under the maritime acts. White House Councils: Concept in Perspective The need for a White House Council to formulate and coordinate ocean policy at the highest level of the executive branch is considered to be axiomatic by most in the ocean community. The persistence of the concept is attributable to the logical rationale of the proposal, the perceived success of the former Marine Science Council, and faith that presence in 22 U.S. Congress, House, Committee on Merchant Marine and Fisheries. National Ocean Policy, Hearings before Subcommittee on Oceanography. 94th Cong., 2d sess., Ser. 94-43, 1976, p. 35, Testimony of William Middendorf III, Secretary of the Navy. 23 Transportation Institute. An Analysis of the Direct Impact of the Merchant Marine on National Security. Washington: Transportation Institute, 1976. "Robert H. Taft, Jr., assisted by William S. Lind. White Paper on Defense: A Modern Military Strategy for the United States (processed). Washington: 1976. the White House will assure commitment and direc- tion in Federal ocean policy. Whether a White House Council would meet the expectations of the ocean community, however, depends upon a subset of external considerations. First, there is little chance that such a council which is ordained by the Congress would be influential unless the President fully concurred in its creation or unless it was formed at his initiative. White House councils are of limited value if they deal with sub- ject areas that are not perceived as crucial by Presidents. Second, Stephen Hess points out that the use of the Vice President for chairing advisory councils runs the risk that the President may ulti- mately have to reject the advice of his Vice Presi- IX-11 dent publicly, thereby risking the appearance of dis- cord within the Administration. 25 Third, the relative success of the Marine Science Council, which has been used as a model for proposed new organiza- tions, must be reexamined carefully to determine its functional effectiveness. Edward Wenk's Politics oj the Ocean remains the only analysis of the perform- ance of the Council. Notwithstanding this scholarly analysis, the Council and its counterpart, the Stratton Commission, were riding the crest of a wave during a period of faith in science; thus, the cause and effect of what transpired in Government during that period is difficult to assess objectively. The frailty of the Council as an institution, however, is well docu- mented by Dr. Wenk, who shows that it was wholly dependent upon the initiative of the Vice President and the receptivity of the President to ocean pro- grams. 26 Trends in the Carter Administration are contrary to the concept of centralizing power in the Executive Office of the President. Noting that the tendency in the past has been to put programs that cut across many departmental lines in the Executive Office on the theory that "the closeness of the President is supposed to add stature to their influence and . . . permit them to deal with several departments simul- taneously," President Carter has moved to reduce policy council and special coordinative units in an effort to "strengthen Cabinet government." 27 Presi- dent Carter has, therefore, opted for a collegial Cabinet approach to guiding and managing national policy. In moving to abolish all Cabinet-level policy councils save the National Security Council (NSC), proposals for a White House policy council to over- see ocean affairs or maritime policy are not in keep- ing with present reorganizational trends. Advisory Committees Federal advisory committees have proliferated during recent years. In the quest for public par- ticipation in the governmental decision process, departments and agencies have created many gen- eral and specialized advisory groups to counsel administrators on the execution of government pro- grams. At the end of calendar year 1976, there were 1,159 committees in existence, involving 27,000 persons and costing $59.7 million. 28 Of these ad- visory committees, councils, and commissions, 75 dealt with ocean-related matters (table 9-1). Advisory committees are widely used within the executive branch at all levels of administration. To some extent they have become a symbol of participatory democ- racy, and have been skillfully used by some public administrators to dull the edge of criticism of "closed decision-making." There are, unfortunately, no ob- jective measures of the effectiveness of advisory committees since the policy agenda is formed from diverse participants over an indefinite time span. Some advisory committees, however, serve a higher order of purpose and play a significant role in pro- viding insights and policy options for highly complex and technical areas of policy to the President and the Congress. National Advisory Committee on Oceans and Atmosphere One such committee is the National Advisory Committee on Oceans and Atmosphere (NACOA), 25 Steven Hess. Organizing the Presidency. Washington: Brook- ings Institute, 1976, p. 186. "Edward Wenk, Jr., op. cit. note 12, p. 163. B U.S., President, "Remarks to Reports on Transmitting a Reorganization Plan to the Congress." 18 July, 1977. Presidential Documents 13: 1007. 28 U.S. General Services Administration. Federal Advisory Committees — Fifth Annual Report to the President. March 17, 1977, pp. 1-2. created by the Congress in 1971 to provide advice to the President and the Congress on national marine and atmospheric affairs. 29 The original NACOA Act, which was adopted in response to recommendations by the Commission on Marine Science, Engineering, and Resources (Stratton Commission), in 1969, 30 was repealed by the 95th Congress and reconstituted with 18 members instead of the original 25. 31 Members of the Committee are appointed by the President, and under the new authorizing legislation must be qualified by knowledge and expertise in marine or atmospheric affairs. NACOA, therefore, is more accurately characterized as a "blue-ribbon" committee than as a citizen advisory committee as used in common parlance. NACOA serves as a comprehensive oversight committee for all Federal ocean and atmospheric programs. While the enabling legislation explicitly requires NACOA to serve as an advisory body to the National Oceanic and Atmospheric Administra- tion within the Department of Commerce, its broader legislative mandate makes it advisory to both the legislative and executive branches. The Committee is housed within the Department of Commerce, al- though it operates entirely independently with its own staff and budget authorization. Under the Act, NACOA's responsibilities are to: • Undertake a continuing review of national ocean policy, coastal zone management, and the status 29 33 U.S.C. 857-6 to 857-12; amended in the 94th Congress, Public Law 94-69, 89 Stat. 384. 30 Report of the Commission on Marine Science, Engineering, and Resources to the President of the United States and the U.S. Congress, by Julius A. Stratton, Chairman. Our Nation and The Sea — A Plan for National Action. Washington, D.C., Government Printing Office, 1969. p. 245. 31 National Advisory Committee on Oceans and Atmosphere Act of 1977, Public Law 95-63, 91 Stat. 265. IX- 12 Table 9-1. — Federal advisory committees, commissions, and councils related to ocean affairs Presidential Committees, Commissions, and Councils Council on Environmental Quality Marine Mammal Commission National Advisory Committee on Oceans and Atmosphere National Transportation Policy Study Commission United States Water Resources Council Department of Commerce Advisory Board to United States Merchant Marine Academy Caribbean Fishery Management Council Advisory Panel for the Caribbean Fishery Management Council Scientific and Statistical Committee Coastal Zone Management Advisory Committee Gulf of Mexico Fishery Management Council Billfishes/Pelagic Sharks Advisory Council Groundfish Advisory Council Migratory Coastal Pelagic Fishery Advisory Panel Reef Fish Advisory Panel Scientific and Statistical Committee Shallow Water Shrimp Fishery Advisory Panel Marine Fishery Advisory Committee Mid-Atlantic Fishery Management Council Scientific and Statistical Committee New England Fishery Management Council Scientific and Statistical Committee New York Bight MESA Advisory Committee (Marine Ecosystems Analysis) North Pacific Fishery Management Council Advisory Panel for the North Pacific Fishery Management Council Scientific and Statistical Committee Pacific Fishery Management Council Anchovy Advisory Panel Groundfish Advisory Panel Jack Mackerel Advisory Panel Sablefish Advisory Panel Salmon Advisory Panel Scientific and Statistical Committee Sea Grant Review Panel South Atlantic Fishery Management Council Scientific and Statistical Committee Western Pacific Fishery Management Council Scientific and Statistical Committee Department of Defense Naval Research Advisory Committee Shoreline Erosion Advisory Panel Underwater Sound Advisory Committee U.S. Army Coastal Engineering Research Board Department of the Interior Canaveral National Seashore Advisory Commission Cape Cod National Seashore Advisory Commission Gateway National Recreation Area Advisory Commission Golden Gate National Recreation Advisory Commission Gulf Islands National Seashore Advisory Commission Indiana Dunes National Lakeshore Advisory Commission Outer Continental Shelf Advisory Board Outer Continental Shelf Environmental Studies Committee Pictured Rocks National Lakeshore Advisory Commission Sleeping Bear Dunes National Lakeshore Advisory Commission Department of State Advisory Committee on the Law of the Sea Advisory Committee to the United States National Section of the International Commission for the Conservation of Atlantic Tunas Advisory Committee on the United States Section of the Inter American Tropical Tuna Commission Advisory Committee to the United States Section, International North Pacific Fisheries Commission Ocean Affairs Advisory Committee Shipping Coordinating Committee IX-13 Table 9-1. — Federal advisory committees, commissions, and councils related to ocean affairs (continued) Department of Transportation Coast Guard Research Advisory Committee National Boating Advisory Council New York Harbor Vessel Traffic System Advisory Committee Rules of the Road Advisory Committee Saint Lawrence Seaway Development Corporation Advisory Board Ship Structure Committee Towing Industry Advisory Committee Environmental Protection Agency Science Advisory Board Federal Communications Commission Radio Technical Commission for Marine Services RTMC Special Committee No. 69/WARC (World Administrative Radio Conference) Advisory Committee for Maritime Mobile Service National Aeronautics and Space Administration Ocean Dynamics Advisory Subcommittee National Science Foundation Advisory Committee for Division of Atmospheric Sciences Advisory Committee for Division of Earth Sciences Advisory Committee for Division of Environmental Biology Advisory Committee for Division of Ocean Sciences Advisory Committee for Division of Polar Programs Marine Mammal Commission Committee of Scientific Advisors on Marine Mammals of the marine and atmospheric science and serv- ice programs; • Advise the Secretary of Commerce with respect to the carrying out of the programs administered by the National Oceanic and Atmospheric Ad- ministration; • Submit an annual report to the President and the Congress setting forth an assessment of the status of the Nation's marine and atmospheric activities; and • Submit such other reports as may be requested by the President or the Congress. NACOA has submitted six annual reports. Em- phasis changes from year to year, however, NACOA has reviewed and made recommendations concerning fisheries, coastal zone management, Law of the Sea, marine transportation, marine science and engineer- ing, and reorganization of Federal ocean programs. Special reports have been issued on the Sea Grant Program, ocean engineering and other subjects re- quested by the Congress and the Executive. NACOA has concentrated on evaluating Federal programs within the executive branch, although it has also dealt with legislative questions. Seidman has observed that "what the Government basically wants from advisory committees is not expert advice, . . . but support." 32 Advisory com- " Harold Seidman, op. cit. note 9, p. 239. mittee members frequently act as program mis- sionaries and serve as a kernel of grass-roots sup- port for mobilizing efforts to influence Congress and promote a program within the executive branch. Because specialized advisory committees have the potential for representing special interests at the expense of the general interest of the public, the impact of advisory committee recommendations is substantially undermined. National Academies of Sciences and Engineering The quasi-governmental committees operating under the National Academies of Sciences (NAS) and Engineering (NAE) through the National Re- search Council (NRC), although not official govern- mental advisory bodies, stand in a special relation- ship to the Government because of the stature of their membership. Membership in the academies is by peer election from among distinguished members of the science and engineering disciplines. The Na- tional Research Council (NRC) was organized as a subsidiary to the academies in order to broaden the representation among scientists and technologists in the furtherance of science and technology for the benefit of the public. Participation in NRC studies and panels does not require membership in the NAS or NAE as a prerequisite. NRC has become the operational arm for the NAS/NAE, while the latter function more as honorary organizations and provide IX-14 management services for their assigned functions. Although chartered by the Federal Government, no Federal funds are appropriated directly for the oper- ation of the academies. The principal funding source is through negotiated contracts with Federal agencies. Within the National Research Council there are four permanent entities which deal with ocean- related science and technology: the (1) Marine Board, (2) the Maritime Transportation Research Board, (3) the Ocean Policy Committee, and (4) the Ocean Sciences Board. These organizations and their predecessors have significantly influenced the devel- opment of ocean policy since the late 1950s and earlier. Three 1972 studies by the academies, "Oceanography 1960-1970," "Oceanography 1966: Achievements and Opportunities," and "Toward Fulfillment of a National Commitment" were land- marks in evaluating the status of marine science and technology. Much of the work of the NAS/NAE panels, however, is targeted at specific problems or narrow mission areas in response to studies commis- sioned by executive agencies or, occasionally, con- gressional committees. The close alliance between NAS/NAE activities and the Federal agencies which are their primary customers has caused congressional caution with regard to accepting the conclusions of Academy studies. Organization of Federal Ocean Programs Organization of the Executive Branch to execute the policies developed in the legislative process has provided fertile grounds for debate among students of public administration and political science. The 5 original departments which were created under the Constitution have since grown to 12 Cabinet-level departments; 58 agencies, commissions, independent regulatory agencies, administrations, authorities, corporations, boards or services; and 3 quasi-Federal agencies. The expansion has come as a result of temporal need: The Department of the Interior was established in 1849 to deal with the disposition of Federal lands in the West; the Depart- ment of Agriculture was established in the 19th century at a time when the overwhelming majority of the population was involved in agriculture; the Department of Commerce and Labor was estab- lished in the early 20th century as a result of rapid industrial growth, but by 1913 the Department of Labor was made a separate entity in response to the labor movement. More recently, the Department of Housing and Urban Development was established in response to national trends toward urbanization and away from rural areas. Increased use of the family automobile and the consequential decline in the use of conventional mass transit modes led to establishment of the Department of Transportation. The Department of Energy was created in 1977 in response to a major national problem having serious implications for the socioeconomic values of the Nation. The large number of non-Cabinet agencies is a relatively recent phenomenon that reflects the in- creased complexity and technical nature of current problems. Beginning in the 1920s and 1930s with the creation of the initial independent regulatory agencies — the Federal Trade Commission (FTC), Securities and Exchange Commission (SEC), and the Federal Power Commission (FPC) — there has been an accelerating trend toward creating more independ- ent agencies with specific missions, such as the Environmental Protection Agency (EPA), National Aeronautics and Space Administration (NASA), and the two energy-oriented agencies, Federal Energy Administration (FEA) and the Energy Research and Development Administration (ERDA) which have recently been incorporated into the new Department of Energy. Although some programs in separate agencies or departments complement and support one another, these organizational trends tend to diffuse responsi- bility, introduce redundancy and overlap, and im- pair lines of communication. Such problems are not unique to government organizations. They are more a function of the size of organizations and may be expected in any large enterprise. Similar deficiencies exist in many large corporations. Fragmentation of responsibility is blamed for a number of governmental dysfunctions. The Office of Management and Budget (OMB), reporting on the findings of the Ash Council, identified some of the problems: 33 • It is difficult to solve complex problems when responsibilities for related programs are located in different departments or agencies. • Problems are defined to fit the jurisdiction of an agency rather than the solutions being sought. • Results are sometimes gauged on the degree of activity within each program, rather than on the overall impact of all related activities. • A department's role can be skewed and com- promised by the way its mission is described. 33 U.S. Office of Management and Budget. Papers Relating to the President's Departmental Reorganization Program: A Refer- ence Compilation. Washington, D.C., Government Printing Of- fice, 1971, p. 7. IX-15 • Narrow missions lead to advocacy for narrow points of view. • Divided responsibility can overlook some prob- lems; everybody's business becomes nobody's business. • Interdepartmental competition over jurisdictional matters reduces effectiveness. • Duplication can result. • Policies can be at cross-purposes. • Negotiations to minimize interagency conflicts are time-consuming. • Originality and boldness are sometimes sacrificed in the quest for intra-governmental harmony. • Decisions are appealed to the White House, thereby centralizing decision-making, but caus- ing delays and consuming the time of the White House staff. • A layer of interagency bureaucracy has evolved to fill the need for interagency coordination. • Fragmentation of responsibility at the Federal level also affects the efficiency of State and local governments. Present Organization: A Point of Departure To some extent, the syndrome described by OMB with regard to fragmented responsibility is manifest in the administration of Federal ocean programs which are now dispersed among 9 departments, 8 independent agencies, and 38 agencies or subagen- cies within Cabinet-level departments. Responsibility is shared by two or more agencies in most major ocean activities and roles assigned to the executive branch (table 9-2). Research is widely dispersed among the ocean agencies by virtue of the diverse nature and indefinite boundaries of research activities that are needed to support development and manage- ment, while the development and management roles for ocean activities tend to be more consistently assigned to a single lead agency. Regulatory activities are a patchwork quilt. Al- though regulatory decisions are often closely related and frequently affect decisions on the marine and coastal environment or on other resources, the ocean-related regulatory scheme is shared by a num- ber of agencies that make unique decisions on a case-by-case basis. The need for regulatory reform in ocean-related development is as obvious as it is for land-based development. The monitoring and other services provided by numerous ocean agencies generally are conductd in conjunction with responsi- bilities for regulation or management. The National Oceanic and Atmospheric Adminis- tration (NOAA), within the Department of Com- merce, was intended by its proponents to provide a central focus for development of civil ocean-related affairs within the Federal Government, yet its budget is less than 10 percent of the total civilian "ocean budget." NOAA was created pursuant to Reorganization Plan No. 4 of 1970 and Executive Order 11564. Its functions and role, as described in President Nixon's message accompanying the reorganization plan, strongly suggested a lead role for NOAA in the administration of the Nation's civilian ocean affairs. After defining the importance of ocean exploration and development to the United States, the President observed that: 34 "Scattered through various Federal depart- ments and agencies, we already have the scientific, technological, and administra- tive resources to make an effective, unified approach possible. What we need is to bring them together. Establishment of NOAA would do so." The consolidation of ocean programs into NOAA under Reorganization Plan No. 4, however, fell far short of the proposal for an independent ocean agency made by the Stratton Commission in its final report, Our Nation and The Sea, released in 1969. The plan was a compromise between Congressional supporters of a strong NOAA and a reluctant Ad- ministration. The components transferred to NOAA included: • The Environmental Science Services Administra- tion, already within the Department of Com- merce; • The Bureau of Commercial Fisheries from the Department of the Interior; • Elements of the Bureau of Sport Fisheries and Wildlife (the migratory marine sport fish pro- gram) from the Department of the Interior; • The Marine Minerals Technology Center of the Bureau of Mines from the Department of the Interior; • The Office of Sea Grant Programs from the National Science Foundation; • Elements of the U.S. Lake Survey from the Department of the Army; • The National Oceanographic Data Center from the Department of the Navy; and 34 U.S. Congress, House, Committee on Government Opera- tions. Reorganization Plan No. 4. Hearings before a subcom- mittee of the House Committee on Government Operations. 91st Cong., 2d sess. 1970, p. 6. IX-16 ^^^^^^^m^^^^m Table 9-2. — Division of responsibilities for ocean activities among Federal agencies 1 DEVELOPMENT FISHERIES Commerce NOAA: hatcheries, economic utilization, fisheries technology, aids to industry, allocation of resources Interior Fish and Wildlife Service: hatcheries, habitat enhancement, technical assistance Bureau of Indian Affairs: Indian fisheries COASTAL RESOURCES Commerce Economic Development Administration Regional Development Commissions MARAD: port development NOAA: coastal energy, impact grants Interior Bureau of Outdoor Recreation: land and water conservation programs OIL, GAS, AND MINERALS SCIENCE AND TECHNOLOGY Defense Navy: technology transfer, ship design, subsystems engineering, advanced ships and craft NSF Technology transfer TRANSPORTATION Commerce NOAA: marine weather forecasts and reports NBS: time standards for navigation and regional weather MARAD: construction and operating subsidies, port development, advanced ship systems, advanced ship machinery, shipping operations information. NASA Navigational satellites Transportation Coast Guard: maintenance of navigation aids EDUCATION AND TRAINING Commerce NOAA: Sea Grant programs MARAD: U.S. Maritime Academy, State maritime academies Defense Navy: training and education programs, Navy Postgraduate School, U.S. Naval Academy, NROTC EPA Treatment plant operators training HEW Office of Education Transportation Coast Guard: U.S. Coast Guard Academy Commerce Industry and Trade Administration: metals, minerals, and commodity opportunities Energy Rate of leasing OCS lands Interior USGS: offshore geological surveys Bureau of Mines: potential of seabed minerals ENVIRONMENT EPA Treatment plant construction grants 1 Abbreviations: BLM, Bureau of Land Management, Interior CEQ, Council on Environmental Quality EPA, Environmental Protection Agency FDA, Food and Drug Administration, HEW FMC, Federal Maritime Commission FPC, Federal Power Commission HEW, US Department of Health, Education, and Welfare ICC, Interstate Commerce Commission HUD, US Department of Housing and Urban Development MARAD, Maritime Administration, Commerce NASA, National Aeronautics and Space Administration NOAA, National Oceanic and Atmospheric Administration, Commerce NSF, National Science Foundation NIH, National Institutes of Health, HEW OSHA, Occupational Safety and Health Administration, Labor USGS, U.S. Geological Survey, Interior IX-17 Table 9-2. — Division of responsibilities for ocean activities among Federal agencies (continued) MANAGEMENT FISHERIES Commerce NOAA: fishery conservation and management, marine mammals Interior Fish and Wildlife Service: management in Federal waters State Governing international fisheries agreements, Law of the Sea Conference COASTAL RESOURCES Commerce NOAA: Coastal Zone Management Program, estuarine sanctuaries, beach access, barrier islands SCIENCE AND TECHNOLOGY Commerce NOAA: Sea Grant Colleges Defense-NSF University National Oceanographic Laboratory System NSF Support of laboratory facilities TRANSPORTATION Commerce MARAD: National Maritime Research Centers EDUCATION AND TRAINING Defense Management of coastal military lands Interior National Park Service: national seashore Fish and Wildlife Service: wildlife refuges OIL, GAS, AND MINERALS Interior BLM: OCS oil and gas leasing ENVIRONMENT Commerce NOAA: marine sanctuaries EPA Area-wide waste treatment planning, oil spill contingency plans IX-18 Table 9-2. — Division of responsibilities for ocean activities among Federal agencies (continued) REGULATION FISHERIES Commerce NOAA: fishery conservation and management regulations, enforcement and regulation of incidental catching of marine mammals EPA Fish and shellfish protection HEW FDA: Shellfish Sanitation Program Justice Prosecution of violators Transportation Coast Guard: Enforcement of fishery conservation and management regulations COASTAL RESOURCES Commerce NOAA: Coastal Zone Management FPC Siting energy facilities NRC Siting nuclear facilities HUD Federal Disaster Assistance Administration: Flood Disaster Program Transportation Coast Guard: Port Safety and Security Program OIL, GAS, AND MINERALS Commerce NOAA: aspects of deepwater ports Defense Corps of Engineers: permits for offshore structures Interior USGS: OCS operations Labor OSHA: Safety regulations on offshore operations Transportation Office of Pipeline Safety: offshore pipelines Office of Deepwater Ports: licensing of deepwater ports Coast Guard: aspects of deepwater ports, safety regulations on offshore structures ENVIRONMENT Commerce NOAA: sign-off on fishery and wildlife coordination actions Defense Corps of Engineers: dredge and fill permits EPA Ocean dumping permits, National Pollution Discharge Elimination System, air pollution control, review of environmental impact statements SCIENCE AND TECHNOLOGY Commerce NOAA: permits for research in marine sanctuaries TRANSPORTATION Commerce MARAD: shipbuilding requirements FMC Regulation of shipping rates ICC Regulation of shipping rates in intermodal transportation NRC Licensing nuclear power systems Transportation Coast Guard: safety inspection and licensing, vessel traffic control EDUCATION AND TRAINING Transportation Coast Guard: licensing operating personnel Transportation Coast Guard: enforcement of oil spill regulations, ocean dumping enforcement, marine sanitation device enforcement IX-19 Table 9-2. — Division of responsibilities for ocean activities among Federal agencies (continued) RESEARCH FISHERIES Commerce NOAA: biological and ecological investigations, fisheries technology, aquaculture research EPA Pollution impact on fisheries HEW FDA: shellfish sanitation Smithsonian Oceanography, limnology, and biological research COASTAL RESOURCES CEQ Coastal impact studies Commerce NOAA: coastal zone studies, coastal mapping services Defense Corps of Engineers: coastal studies, beach erosion studies, navigation in coastal region EPA Estuaries and coastal zone research Interior USGS: topographical mapping of coastal areas, coastal resources appraisal NSF Coastal-zone and land-use studies, regional environmental systems ENVIRONMENT CEQ Impact assessment on marine environment Commerce NOAA: ocean dumping impacts, environmental effects of marine mining, oil in the ecosystem, effects of energy facilities siting MARAD: pollution prevention ship systems Energy Environmental impacts of energy production EPA Ocean pollution research, oil spill and hazardous materials research, Great Lakes water quality Interior Office of Water Resources Research: protection of fresh water supplies NSF fundamental research of source, fate, and impact of pollutants on marine systems Smithsonian Chesapeake Bay environmental studies Transportation Coast Guard: pollution prevention and cleanup SCIENCE AND TECHNOLOGY Commerce NOAA: oceanographic instrumentation and development, Sea Grant research, ocean circulation, marine ecosystems analysis, remote sensing and marine prediction, manned undersea science and technology Defense Navy: oceanographic science, ocean engineering salvage, diving technology, and ship technology Advanced Research Projects Agency: stable platforms, undersea power systems, underwater detection, advanced submersibles Energy Reactor research and power systems HEW NIH: basic biological research on human and animal physiology Interior Office of Saline Water: desalination research Bureau of Reclamation: subsea conveyance of fresh water NASA Satellite applications research NSF International Decade of Ocean Exploration, ocean sediment coring program, Arctic and Antarctic research OIL, GAS, AND MINERALS Commerce NOAA: marine mining processing technology Interior USGS: OCS resource evacuation, offshore geological surveys NSF Seabed resource assessment EDUCATION AND TRAINING Commerce NOAA: Sea Grant NSF Science Education Program TRANSPORTATION Commerce MARAD: shipbuilding technology, ship systems, nuclear vessels, shipboard automation Transportation Coast Guard: search and rescue techniques, vessel pollution abatement systems IX-20 Table 9-2. — Division of responsibilities for ocean activities among Federal agencies (continued) MONITORING AND SERVICES FISHERIES ENVIRONMENT TRANSPORTATION Commerce NOAA: fishery resource monitoring assessment and prediction, industry statistics, economic and marketing information Interior Fish and Wildlife Service: monitoring fish populations Bureau of Indian Affairs: fishery statistics and information related to Indian fishing rights COASTAL RESOURCES Commerce NOAA: coastal mapping, data on use of coastal region, coastal and ocean satellite imagery Defense Corps of Engineers: beach erosion, information, coastal use information, water levels in Great Lakes Interior USGS: coastal region resource information and monitoring, topographic mapping NASA Monitoring land resources OIL, GAS, AND MINERALS Energy Monitoring OCS oil and gas development Interior BLM: compile statistics on OCS oil and gas operations USGS: compile information on offshore minerals Commerce NOAA: Great Lakes data, ocean dumpsite survey and monitoring, environmental satellite service, environmental data and information services Interior Fish and Wildlife Service: monitor construction activities on navigable waters EPA Great Lakes water quality, assessment of pollutants in estuaries and coastal waters NASA Remote sensing of oceanographic features Smithsonian Oceanographic and marine sorting centers SCIENCE AND TECHNOLOGY Commerce NOAA: ocean mapping investigations, data buoy system, for data sensing, atmospheric and oceanographic information, ocean circulation, structure and motion of ocean, environmental satellite service, oceanographic data center Defense Navy: bathymetric and geophysical measurements, tactical systems survey, hydrographic surveys Commerce NOAA: nautical chart service, marine weather forecasts and reports Defense Defense Mapping Agency: nautical charts and sailing directions Transportation Coast Guard: operation of LORAN, radio beacons and navigation aids, publications, oil spill surveillance and monitoring, search and rescue, port safety/ security surveillance EDUCATION AND TRAINING Commerce NOAA: Sea Grant marine advisory service • The National Data Buoy Project from the De- partment of Transportation. In defining the role to be played by NOAA in oceanic affairs, the President's memorandum cir- cumscribed the agency's functions primarily to re- search and development: 35 38 Ibid, p. 8. "I expect that NOAA would exercise lead- ership in developing a national oceanic and atmospheric program of research and de- velopment. It would coordinate its own scientific and technical resources with the technical and operational capabilities of other Government agencies and private institutions." rx-21 Additional responsibilities were assigned to NOAA by the Coastal Zone Management Act of 1972 (and expanded under the 1976 amendments), Deepwater Ports Act of 1972, ocean dumping responsibility under the Marine Research and Sanctuaries Act of 1972, Marine Mammals Protection Act, of 1972, and the Marine Fishery Conservation and Manage- ment Act of 1976. All of the recently assigned ad- ministrative responsibility, with the exception of ocean dumping, is regulatory or developmental rather than research in nature. Thus, the character of NOAA's mission is slowly changing, as are the demands on its administrative framework. Those arguing for reorganization of the ocean- related functions in the agencies cite lack of coor- dination among the ocean programs as evidence of the consequences of dispersed and fragmented re- sponsibilities under the present organizational scheme. The relative lack of communication between the research support activities in NOAA, NSF, EPA, and the Department of the Interior is one example cited in support of this argument. The absence of close coordination, they conclude, results in an in- capacity to bring about cohesive national policies, reduces administrative efficiency, and promotes lack of accountability. Advocates of this view believe that divided responsibility for ocean activities prevents a clear decision on what the Nation's priorities should be, and how they should be accomplished in the needed time frame. Few argue that the Nation's ocean programs are well coordinated; however, in rebuttal to the pro- posals for broadscale reorganization of the ocean effort, the opponents see a need only for limited consolidation of programs and an interagency coor- dinating mechanism to facilitate the formulation of high-level policy and ensure collaboration among the responsible agencies. 50 Organizational effectiveness cannot be gauged objectively; thus conclusions tend to be based on casual observations or subjective opinions. The need for reorganization is frequently placed on the logic of inherent faith that things can be done better. Whether integration and consolidation of the ocean programs into larger unit operations can achieve better administration is similarly accepted or re- jected as an article of faith. The fundamental question is whether the way we have divided the responsibility for ocean-related pro- grams among the departments is the best way to conduct the Government's business. The answer depends on the standards used in judging, the nature of the evidence considered, and agreement on the overall policy objectives. Split Jurisdiction: A Special Organizational Problem One group of ocean programs presents unique organizational problems that stand above the general concern for overall program coordination. These are the programs that split the responsibility for imple- mentation among two or more agencies in different departments. Several ocean programs are of this character. Responsibility for the protection of marine mam- mals is shared by the Department of Commerce, Department of the Interior, and the Marine Mammal Commission. The Endangered Species Act of 1973 assigns the responsibility for enforcement to the Department of the Interior and the Department of Commerce. Regulation of ocean dumping is jointly adminis- tered by NOAA, EPA, and the Corps of Engineers. Although the management of marine fisheries is the responsibility of NOAA within the Department of Commerce (through regional fisheries councils), responsibility for management of anadromous spe- cies, which inhabit both fresh- and saltwater during portions of their life cycle, is divided between NOAA, the Fish and Wildlife Service of the Depart- ment of the Interior, and the Department of State. Placement of structures in navigable waters off- shore with pipelines ashore can involve the Depart- ment of Energy, Interstate Commerce Commission, Department of Transportation, Corps of Engineers and EPA. Notwithstanding a self-proclaimed spirit of coop- eration among the responsible agencies, many ob- servers have related "horror tales" of interagency squabbling and "bureaucratic paralysis" in certain shared programs.' 7 If the assigned responsibilities are complementary, i.e., the tasks to be performed are uniquely matched to the respective capabilities of the agencies, shared responsibility can be imple- mented effectively. Thus, the administration of the Deepwater Port Act of 1974 has progressed satis- factorily under the authority of the Coast Guard (and the Department of Transportation) with the requirement for consultation with NOAA. However, where the division of responsibility is based on an artificial separation, such as species or habitats bearing little relationship to the problems as found in nature, implementation is often impeded or confused and the chances of omissions and over- 36 U.S. Congress, House, Committee on Merchant Marine and Fisheries. An Overview of National Ocean Policy Problems, Issues, and Administration, Based on Hearings before the Oceanography Subcommittee. Ser. 94-L, 94th Cong., 2d sess., 1976 — a general discussion of the need for ocean reorganization. 37 U.S. Congress, Senate, Committee on Commerce. Ocean Dumping Regulation: An Appraisal of Implementation. 95th Cong., 2d sess., 1976. IX-22 sights are increased. This has resulted in a curious partitioning of authority under the Marine Mammal Protection Act. For example, NOAA in the Depart- ment of Commerce is responsible for such mammals as whales and seals; whereas the Fish and Wildlife Service in the Department of the Interior is responsi- ble for sea otters and walruses. Further complications arose in the case of the threatened green sea turtle, which, under the En- dangered Species Act, required a Memorandum of Understanding between the Department of Com- merce and the Department of the Interior giving NOAA responsibility for the turtles if they are swimming and the Fish and Wildlife authority if they are on land. Anadromous fish similarly come under two management regimes, administered by NOAA and the Fish and Wildlife Service on the basis of whether the fish are in fresh- or saltwater and whether they are indigenous to Pacific waters, the Great Lakes, or the Atlantic. The jointly adminis- tered programs clearly need special attention, whether considered in the context of overall ocean reorgani- zation or as an incremental measure to consolidate the most troublesome coordination programs. Organizational Options and Principles No magic formulas exist for organizing Govern- ment functions. Theories abound, but the problems of organization are not wholly structural. The or- ganizational options are limited by a number of practical considerations and external factors that influence or constrain the final outcome: • Statutes and congressional enactments establish the top and bottom line of authority — executive agencies can neither expand nor contract the re- quirements of the statutes. • Agencies are collective fiefdoms, generally pre- sided over by competitive and aggressive ad- ministrators — tidy organizational charts fre- quently fail to depict accurately the power struc- ture and decision path. • Constituents of a Federal program often make more difference in the operation of an agency than does the organizational locus within the Government. • Agency jurisdiction should be matched to con- gressional committees' jurisdiction to the extent possible in order to avoid future program frag- mentation. Any reorganization of the Federal ocean effort, while simple in concept, would be complex in prac- tice. Federal agencies do not exist in isolation; they are highly interdependent. To take programs from one department can significantly affect the donor agency to the extent that its organizational integrity and operational efficiency are impaired. A critical mass must be maintained in the organizations from which programs are transferred. Also there is a need to ensure that the recipient agency has the necessary programs to make it an effective administrative unit. Organizational problems are often less "struc- tural" than they are "people problems." The human dimension must be considered in any organizational scheme. It is well proven that good faith, compe- tence, professionalism, and dedication can overcome many organizational deficiencies. Proper organiza- tion can minimize the administrative barriers that tend to impede communication and reduce adminis- trative effectiveness. However, this is a passive quality of organizational structure. Leadership and initiative provide the active quality. To the end that organization can provide the proper mix of talent and resources at an appropriate level of visibility in order to attract those with leadership ability, or- ganization can contribute to the active and respon- sive qualities of good government in an indirect way. Agencies with closely related and interacting re- sponsibilities often compete for new authority and vie for common aspects of existing programs. Dy- namic tension among the competing agencies can serve to improve general performance in Govern- ment. However, good administration can suffer when interagency competition becomes merely self-serving or where duplication and confusion result. The line between the extremes is narrow and ill-defined. Com- petition is inherent in any organization and within its subunits. The factor of interagency and interunit competition not only should be acknowledged in an organization scheme, but should be skillfully used by administrators to improve the performance of the organization as a whole. Organizational Structure and Status Whether the Federal ocean program should be re- organized is a question that must be determined on the basis of its relative benefits and costs. A decision that Federal ocean activities are of sufficient impor- tance to warrant a consolidation of the present separate agencies is obviously a critical policy judg- ment. If reorganization is to be undertaken, four ques- tions are to be answered. (1) Should the entity be independent or part of an existing department? (2) If independent, should the organization be an agency, administration, or a Cabinet-level department? (3) Should the organization be based upon functional lines, resource objectives, disciplines, or regional IX-23 services? (4) How should responsibility for develop- ment, regulation, and research be allocated to the new entity? Independent Agency or Cabinet-Level Department? The Stratton Commission strongly recommended the creation of an independent agency to manage the Nation's ocean affairs. The National Advisory Committee on Oceans and Atmosphere (NACOA), which recommended an ocean agency 5 years later, was less definite in its recommendations, concluding that, "the form is less crucial than the need to take action now." 38 The Ash Council concentrated on building the natural resource functions (including the oceans) into an expanded Department of the Interior. 39 The debate on the form that a new ocean organi- zation should take often turns on how much influ- ence or "clout" an independent agency could muster as compared to a Cabinet-level department. Often the influence depends less on the rank of the admin- istrator than on his personal influence in the Admin- istration. However, it is generally believed that Cabinet-level officers have greater access to and are more influential with the President and other Cabinet officers than are administrators of independent agencies or sub-Cabinet-level administrations. Ac- cording to some persons, the proliferation of inde- pendent agencies also has tended to weaken the impact that such agencies have on high-level policy, or has compounded the problem of interagency coor- dination. Generalities frequently break down, how- ever, and notable successes, such as the National Aeronautics and Space Administration, and the En- vironmental Protection Agency are cited to rebut the presumption of Cabinet-level superiority. The question of a Cabinet-level or sub-Cabinet- level agency borders on the esoteric because there is no explicit authority in the United States Constitu- tion or in the statutes for a "Cabinet." It is a creation of the Presidency. Anyone whom the President may select — be it an administrator of an independent agency or a White House aide — can be a member of the Cabinet by designation. What is implied by the advocates of Cabinet-level rank for an ocean administrator is the need for access to the President, influence in the White House, and the stature and visibility to ensure that ocean programs are given priority in the consideration of pending issues and in the budget process that they feel ocean matters merit. It is a matter of conjecture whether the Office of Management and Budget (OMB) and other centers of power exercise more control over the self-determi- nation of an independent agency than over the in- ternal workings of a Cabinet-level department. Public accountability has always played an impor- tant part in the U.S. governmental system at all levels of administration from the President down. Administrators of independent agencies, as well as Cabinet officers, are equally accountable to the press and the public, and are subject to congressional oversight. Integration by Function or Resource? Whether Government organizations should be pre- dicated on functional lines, e.g., energy, food, trans- portation, and labor, or whether they should be organized on the basis of resources, e.g., land, water, people, and oceans is a fundamental question. To some extent this is merely another way to ask the question: Is the ocean a sensible theme for integrat- ing the functions of Government? Gulick recognized four basic organizational themes around which governmental activities can be classi- fied: Purpose (function), Process (discipline), Per- sons/Resources (clientele / materials), and Place (re- gional).* The present governmental structure of ocean-related activities is a mixture of each of these organizational themes (table 9-3). To some extent, the classification of Government programs within this framework is arbitrary and the separations between functions and resources is contrived and artificial. Societal problems and organizational solutions do not segregate as neatly as organizational theorists would presume. In the balance, however, it appears that present governmental organization favors the "functional" or "purpose" approach, although or- ganization around "resources" or "clientele" is pre- dominant in a number of ocean activities. Organization by Function Organization by purpose or function brings to- gether the programs, capabilities and services needed to achieve the objectives of identified societal goals. Functional organization, therefore, is structured around classes of governmental activities such as food, energy, health, housing, environment, science and technology, defense, and transportation. The functional classification of the ocean and coastal activities is shown in figure 9-3. The Council on Ex- ecutive Reorganization (The Ash Council) in 1971 recommended that the Executive Branch be or- ganized around the "goals" of natural resources, communities, human resources, and economic affairs. This represented organization by function at a higher level of generality. 41 The advantages of functional organization are: (1) ^ National Advisory Committee on Oceans and Atmosphere. Third Annual Report to the President and the Congress. Wash- ington, D.C., Government Printing Office, 1974, p. 15. " U.S. Office of Management and Budget, op. cit. note 33. ■*" Luther Gulick. "Notes on the Theory of Organization," Papers on the Science of Administration, Luther Gulick and L. Urwick (eds.) New York: 1937, p. 15. " U.S. Office of Management and Budget, op. cit. note 33. 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The disadvantages and problems associated with functional organization are: (1) It is impossible to cleanly divide all the programs and work of Govern- ment into a few major functional categories with discrete responsibilities; (2) There is danger that sub- ordinate and related activities will be inadvertently suppressed or lost sight of because of the singleness of purpose; (3) Unity of control and direction over a functional area can lead to centralization of au- thority, monolithic attitudes, and constrained debate, thus reducing the benefits derived from constructive disagreement; and (4) A functional organization that is staffed and equipped from top to bottom to per- form the necessary activities without outside assist- ance can easily drift into an attitude of complete independence and indifference to external considera- tions. Organization by Resource Organization by resource is predicated on as- sembling governmental capabilities into a single unit that can accomplish the multiple objectives of a single target resource or target groups. Thus, Resource /Person organization is based upon orient- ing administration around classes of natural re- sources or identifiable public groups, e.g., veterans, labor, farmers, business (commerce), banks, forests, fisheries, marine mammals, ocean shippers, and truckers. Under a "resource" organizational scheme, some if not all of the functional activities are in- cluded under a comprehensive management system that embraces all of the program objectives that use, impact, or directly affect the resource base. Advantages of organizing by resource include: (1) Use and protection of a resource is simplified when all functional activities relating to the specific resource are in one organization; (2) Proficiency is gained through knowledge of the resource base as a result of in-depth involvement with the resource; and (3) Coordination of resource use and protection activities is easier when functional activities are focused through a resource-oriented organization. Disadvantages of organizing by resource include: (1) The same organization must perform a number of specialized functions; therefore, a resource or- ganization with multiple missions may not be capable of matching the proficiencies of an organization based on a single function; (2) Achievement of functional goals may be made more difficult by emphasizing one resource's values over other re- source activities through an organizational focus on a single resource; (3) Constitutent groups with a stake in a particular resource may be able to unduly influence an organization which is responsible only for a single resource base; and (4) Parochialism can develop over time if an organization deals solely with one resource and is remote from the considera- tion of other natural resources. Singling out the ocean as an integrating theme for a resource-oriented organization tacitly implies that there are characteristics and factors which distin- guish ocean resources from land and other resources. There have been no comparable proposals that there be a "land" agency as such, and clearly such a suggestion would be considered nonsense. Elliot Richardson identified four unique factors that dif- ferentiate ocean-based efforts from land-based ef- forts: 42 • Ocean resources are common property resources and are therefore wholly in the public domain. Decisions on allocation of ocean resources and resolution of conflicting usage are public policy decisions for governmental institutions to deal with in the public interest. • Ocean activities interact and impact one another in a more direct way than comparable land- based activities. Remote uses may have a per- vasive influence on a corresponding use some distance away; thus a different kind of inter- disciplinary and interjurisdictional management effort is needed. • Technology needed for development of marine resources is significantly different from that as- sociated with similar land-based resource de- velopment. • The ocean constitutes an area in which U.S. in- terests butt up against the interests of other countries. Therefore, there is an important inter- national .ingredient involved in resolving ocean problems. Whether the ocean, as a resource, is a sensible integrating theme for organizing the Federal ocean effort must be determined on the basis of these dis- tinguishing characteristics weighed against the or- ganizational options of "function" versus "resource" and modified by other reorganizational efforts in the Federal Government that may affect any possible reorganization of Federal ocean activities. Separation of Development and Regulatory Activities Governmental functions can be classified generi- cally as: (1) development (promotion), (2) regula- tion, (3) research, and (4) monitoring/services. How a U.S. Congress, House, Committee on Merchant Marine and Fisheries. National Ocean Policy, Hearings before Subcommittee on Oceanography. 94th Cong., 2d sess., Ser. 94^3, 1976, pp. 8-9. IX-27 these functions are separated or combined in a new organizational scheme significantly affects agency behavior. Since the Atomic Energy Commission (AEC) was divided into the Energy Research and Development Administration (ERDA) and the Nu- clear Regulatory Commission (NRC) by the 93d Congress, most reorganizational proposals have sug- gested that responsibilities for promoting or develop- ing a resource should be separated from the respon- sibilities for regulating the industry involved. This premise, however, is neither a categorical imperative nor an article of faith. The recently created Department of Energy (DOE) has blended the responsibility for development and regulation of energy production and delivery into the organization by building safeguards in the regulatory system in order to maintain an arms-length relation- ship between promotional activities and regulatory practices. The current acceptance of the coexistence of these two functions in the same department is based on a distinction between the two types of regu- latory activities: (1) that which is to control the economics, production, and competition within the industry, and (2) that which is to protect other values, e.g., environment, health and safety. 43 The former, it is suggested, can safely be integrated with promotion, while the latter should remain separate. Therefore, it is the quality of the regulatory activity that determines the compatibility rather than the mere regulatory label. Recommendations for Reorganization A number of recommendations for executive reor- ganization have been made by study panels, com- missions, advisory committees, academicians, and legislators in recent years. Those of the Stratton Commission and NACOA concentrated on Federal ocean programs. The Ash Council, with a mandate to look broadly at programs related to natural re- sources, proffered recommendations that would en- compass all natural resource, ocean, atmosphere, and earth sciences. Professor John Norton Moore ad- dressed not only the problems of organizing Federal ocean programs within the Federal agencies, but also suggested changes in the organization of the Depart- ment of State's Bureau of Oceans and International Environmental and Scientific Affairs, and creation of a Cabinet-level Marine Affairs Council in the White House. Senator Ernest F. Hollings, on the other hand, introduced S. 3889 in the Second Session of the 94th Congress in which he proposed the crea- tion of a Department of Environment and Oceans (DOE). These efforts represent the conventional wis- dom on reorganizing the Government to execute the Nation's ocean policy (fig. 9-4). The Stratton Commission's report. Our Nation and the Sea,* 4 concluded that: ". . . the national ocean program recom- mended by this Commission can be achieved only by creating a strong civil agency within the Federal Government with adequate authority and adequate re- sources. No such agency provides an ade- quate base on which to build such an organization." It proposed the creation of an independent ocean agency, the National Oceanic and Atmospheric Agency (NOAA), which would include: • United States Coast Guard. • All of the entities included in NOAA except the National Oceanographic Instrumentation Center, National Data Buoy Development, and the Ma- rine Minerals Technology Center. Stratton Commission Recommendations (1969) • Marine and anadromous fisheries functions of the Bureau of Sports Fisheries and Wildlife within the Department of the Interior. " U.S. Congress, House. The Organization of Federal Energy Functions. H. Doc. 95-43, 95th Cong., 1st sess., 1977. " Report of the Commission on Marine Science, Engineering, and Resources, op. cit. note 30, p. 229. Because many of the new Federal ocean programs enacted since 1969 were rooted in recommendations by the Stratton Commission — coastal zone manage- ment, ocean dumping, fisheries management — it was implied by the Commission that such programs when implemented would be centered in the inde- pendent ocean agency. The rationale upon which the Commission basH its organizational recommendation can be summar- ized as follows: • A major and diverse effort is required in the oceans, and the size and scope of such an effort cannot be fitted into an existing mission agency. • An independent agency would bring a fresh out- look and institutional freedom which are difficult to achieve in an old line agency. • It would be visible and draw greater public inter- est and support by developing a constituency. IX-28 DEPARTMENTS AND AGENCIES DEPARTMENT OF COMMERCE Maritime Administration X National Oceanic and Atmospheric Administration X X X X Environmental Data Service X X X X National Oceanographic Data Center 1 X X X X X Marine Minerals Technology Center 2 X X X X National Environmental Satellite Service X X X X National Marine Fisheries Service 3 X X X X National Ocean Survey X X X X U.S. Lake Survey 4 X National Sea Grant Program 5 X X X X X National Weather Service 6 X X X X X Office of Coastal Zone Manaqement X X X Office of Ocean Engineering X National Data Buoy Project 7 X X X X National Oceanographic Instrumentation Center X X X X DEPARTMENT OF INTERIOR Bureau of Commercial Fisheries 8 X Bureau of Land Management Ocean Related Activities but Not OCS Leasinq X OCS Related Activities Includinq OCS Leasing X X OCS Environmental Baseline Studies X Bureau of Reclamation (Ocean and Atmospheric Proqrams) X Fish and Wildlife Service 9 X X Anadromous Species and Marine Mammals X X National Park Service X Ocean Mining Administration X U.S. Geological Survey X X X (Mapping, OCS Regulation and Selected Research Functions) X DEPARTMENT OF DEFENSE Corps of Engineers Civil Marine and Coastal Proqrams X X Dredge and Fill and Ocean Dumping Function X Selected Civil Activities Related to Regulation and Studies X U.S. Lake Survey 10 X DEPARTMENT OF TRANSPORTATION U.S. Coast Guard X X X X ENVIRONMENTAL PROTECTION AGENCY All Functions X Ocean Research and Monitoring X NATIONAL SCIENCE FOUNDATION Ocean Research and IDOE X X X National Sea Grant Program 11 X formerly Navy (DOD) 2 Formerly DOI 3 Formerly Bureau of Commercial Fisheries (DOI) 4 Formerly Corps of Engineers (DOD) 5 Formerly NSF 6 Formerly Environmental Science Services Administration 7 Formerly National Buoy Development Project (DOC) 8 Transferred to National Marine Fisheries Service (DOC) 9 Formerly Bureau of Sports Fisheries and Wildlife (DOI) 10 Transferred to National Oceanographic and Atmospheric Administration (See DOC) 11 Transferred to National Oceanographic and Atmospheric Administration (See DOC) Figure 9-4. — Major reorganization proposals to execute the Nation's ocean policy, 1964-76. An "X" indicates inclusion of the agency in a new organization. IX-29 • The Administrator of the agency would be better able to organize and devote attention to ocean activities than a Secretary of a large department which has other missions. • Direct access to the President for coordination of Government-wide ocean actitivities would be facilitated. The Stratton Commission's report in 1969 was instrumental in motivating the Administration to create NOAA within the Department of Commerce in 1970. Although the Commission saw an independ- ent NOAA as one with regulatory, enforcement, developmental, management, and research authority, NOAA as now constituted is predominantly research and development-oriented, within the exceptions noted above. President's Advisory Council on Executive Reorganization— The Ash Council (1971) The Ash Council — the President's Advisory Coun- cil on Executive Reorganization — was created by President Nixon in 1969 as a one-shot advisory group within the Executive Office of the President. Its report was submitted in May 1970 and released in February 1971, followed closely by a reorganiza- tion message to Congress outlining the proposal for a Department of Natural Resources. 15 Among the five major components identified for consolidation was "marine resources and technology." The internal structure of the department would have included an Oceanic, Atmospheric, and Earth Sciences Adminis- tration which would have been formed by merging NOAA and the U.S. Geological Survey. The modest proposal, as far as ocean programs were concerned, fell far short of the Stratton Commission recommen- dations. The rationale for the Ash Council proposal was based on the similarity of functions between NOAA and USGS in scientific data acquisition and mutuality in earthquake, hydrologic and cartographic activities. Hearings were held in the 92d and 93d Congress on the Department of Natural Resources (DNR) and Department of Energy and Natural Re- sources (DENR) approaches, but no further legisla- tive action was taken. The proposals did not resur- face in the 94th Congress. National Advisory Committee on Oceans and Atmosphere: Third Annual Report (1974) The National Advisory Committee on Oceans and Atmosphere (NACOA) concentrated on ocean orga- nizational problems in its Third Annual Report, issued in 1974. Not unlike the Stratton Commission, it recommended a broadly based ocean agency, but left the question open as to whether it could best function as an independent agency, within an exist- ing department, or in a new multi-purpose depart- ment, such as the Department of Energy and Natural Resources (DENR) which was under consideration at that time. In effect, the proposal was for an ex- panded NOAA which would be augmented by the additional functions of: • U.S. Geological Survey (USGS); • Corps of Engineers' marine and coastal pro- grams; • Bureau of Land Management (BLM) OCS min- eral leasing program; • Marine fisheries program of the Bureau of Sport Fisheries and Wildlife; and • U.S. Coast Guard (USCG). NOAA's responsibilities were to include: • Assessment and management of fisheries and marine mammals; Assisting the commercial fishing industry; Stimulating and supporting sport fishing and recreation; Assessment and management of nonliving marine resources; Assisting energy and mineral industries operating in the marine environment; Coordinating marine, atmospheric, and coastal zone affairs; Regulating and enforcing ocean activities; Advising and counseling other Federal agencies and States on ocean affairs; Planning for comprehensive use of the marine resources and environment; and Coordinating weather modification activities. NACOA's recommendations for reorganization were in response to the Ash Commission's recom- mendations for consolidating all natural resource functions into a DNR or DENR. Oceans were to be included under the broad rubric of natural resources. NACOA saw four major deficiencies in the DENR proposal:"'' "First, they lack a suitable marine affairs policy statement which would draw atten- tion to the uniqueness of the problems of marine resources management . . . Second, ■"U.S. Office of Management and Budget, op. cit. note 33, pp. 153-223. *" National Advisory Committee On Oceans and Atmosphere, op. cit. note 38, p. 15. IX-30 the bills are inadequate with regard to the functions we feel must be carried out by DENR to implement marine affairs pol- icy .. . Third, their deficiency is the failure to specify which functions will and which functions will not be the responsibility of a marine affairs administrator . . . Fourth, the function of marine multiple-use co- ordination and regulation was not recog- nized at all." The Moore Proposal (1976) Professor John Norton Moore, Director, Center for Oceans Law and Policy at the University of Virginia, recently advanced a three-pronged reor- ganization proposal which would (1) create a Cabi- net-level Marine Affairs Council, (2) centralize non- military ocean programs under a strengthened and independent NOAA, and (3) strengthen and recog- nize the existing State Department Bureau of Oceans and Environment. 17 Under the Moore proposal, the following func- tions would be transferred to the new ocean adminis- tration: • The Coast Guard; • The Maritime Administration (MAR AD); • The Outer Continental Shelf programs of the Bureau of Land Management and the Geological Survey; • The Ocean Mining Administration of the De- partment of the Interior; • Marine and coastal zone activities of the Army Corps of Engineers; • Most ocean research programs of the National Science Foundation (including the International Decade of Ocean Exploration); • Most ocean research and monitoring programs of the Environmental Protection Agency; • Ocean and atmosphere activities of the Bureau of Reclamation; and • Some ocean-related activities of the Fish and Wildlife Service, particularly programs for andromous species and marine mammals. The proposal is significantly different from its predecessors. By including the Maritime Administra- tion (MarAd), which is now in the Department of Commerce, in an up-graded independent NOAA, the Moore proposal recognizes the importance of maritime transportation to our national ocean pos- ture. The proposal also would transfer the ocean pollution functions of EPA to the expanded agency and bring the entire program of ocean pollution control into a single entity, thereby avoiding the pit- falls of split jurisdiction. Reorganization of the Bureau of Oceans, Environ- ment, and Science within the Department of State is aimed at giving the oceans more prominence and attention in international affairs. The Bureau was created at the initiative of Congress, and, in the process of implementation at the department level, was merged with other disparate programs including science and environment. This, according to some observers, has diminished the effectiveness of the Bureau in dealing with international ocean affairs, particularly the Law of the Sea negotiations. The Hollings Proposal: Department of Environment and Oceans (1976) The Department of the Environment and Oceans Act, S. 3889, was introduced September 30, 1976, too late in the 94th Congress for further action, but its introduction served as a means for developing discussion and debate for the 95th Congress. It is the first congressional attempt to create an independent ocean agency since the flurry of proposals that emanated immediately after the release of the Strat- ton Commission report in the 91st Congress. 4S In the statement of introduction for S. 3889, the bill's sponsor, Senator Ernest F. Hollings, chairman of the Senate National Ocean Policy Study, cited five major goals of the proposal: 49 47 John Norton Moore, op. cit. note 21. 48 See, generally, H.R. 3848, 4838, 15147, 15233, et al., S. 2054 and 2204, 91st Cong., 1st sess. (1969); approximately 15 reorganization bills for creating an independent ocean agency were introduced in the 91st Congress. 49 U.S. Congress, Senate. Senator Ernest F. Hollings in state- ment of introduction for S. 3889. 94th Cong., 2d sess., 1 October 1976, Congressional Record 122: S 17854. Minimize the unnecessary duplication and over- lap which now exists; Provide the type of organizational setting where coherent national policies for managing and pro- tecting the environment, the oceans, and their resources can and will be carried out, and where a new sense of direction can develop in the executive branch; Increase the accountability by fixing responsi- bility squarely, and remedying the present situa- tion where no one is in charge and thus no one is held accountable; Unify the now myriad permit processes which confuse the Federal Government and burden in- dustry and State and local governments with enor- mouse amounts of unnecessary redtape; and Bring ocean and environmental affairs into the Cabinet, where they can get the high-level atten- tion they deserve in this era of increasing de- mands on these resources. IX-31 Senator Holling's proposal would establish a De- partment of Environment and Oceans (DEO) which would combine the activities of the Environmental Protection Agency (EPA), an independent regulatory agency in function, with the National Oceanic and Atmospheric Administration (NOAA), an administra- tion within the Department of Commerce, the U.S. Coast Guard, a component of the Department of Transportation, and certain programs under the jurisdiction of the Corps of Engineers. The rationale for coalescing environment and ocean affairs into a single Cabinet-level department is grounded on three organizing principles according to its sponsor: (1) Responsibility for managing the Nation's common property resources — those that belong to no single person or group of persons; (2) separation of respon- sibility for Government functions, to avoid conflicts caused by pursuing differing goals for regulation, enforcement, research, and economic development, and (3) dynamic organization that would develop the internal structure of DEO after its creation. 50 Organizationally, DEO would comprise six func- tional administrations and the U.S. Coast Guard, each directed by an Assistant Secretary: Clean Air Administration, Water Quality Administration, Na- tional Oceans Administration, Recreation and Parks Administration, Environmental Hazards Control Ad- ministration, and the National Atmospheric Service Administration. Rather than transfer functions identi- fied with an organizational entity, as has been the practice with executive reorganization plans, S. 3889 transfers the programs by reference to the authoriz- ing legislation and makes conforming amendments to the environmental and ocean-related statutes to re- flect the transfer of authority and revest the powers of the Secretary of the Environment and Oceans. Components of DEO would include the following organizational entities and/or programs: (1) Bureau of Land Management (Department of the Interior) functions relating to environ- mental baseline studies with respect to the Outer Continental Shelf; (2) Bureau of Reclamation (Department of the Interior) functions relating to modification of the weather; (3) Bureau of Outdoor Recreation (Department of the Interior); (4) U.S. Coast Guard (Department of Transpor- tation); (5) Corps of Engineers (Department of the Army) research and regulatory functions relating to marine and coastal affairs, including activities for regulation of ocean dumping, protection of wetlands, permitting of offshore structures, and research on and control of erosion and other coastal processes; (6) Environmental Protection Agency; (7) Fish and Wildlife Service (Department of the Interior); (8) Geological Survey (Department of the Interior) functions relating to topographic surveys and mapping; regulation of exploration, develop- ment and production activities on the Outer Continental Shelf; research in support of regu- lation; land information and analysis; and re- search on earthquake hazard reduction; (9) National Oceanic and Atmospheric Adminis- tration (Department of Commerce; and (10) The National Park Service (Department of the Interior). The DEO concept goes beyond any recommen- dations made previously by advisory groups in the community of ocean professionals. However, by coupling environment and oceans in a Cabinet-level department, the vulnerability of a relatively small independent ocean agency with limited clout would be traded for department-level status that would put ocean and environment on a par with energy and other resource considerations. Multipurpose Reorganizational Proposals (94th Congress): Department of Natural Resources— Energy— Environment Reorganization bills that would consolidate nat- ural resources, energy, and environmental groups have been introduced in every Congress since 1971. The early bills of the 92d and 93d Congress, which proposed the creation of a Department of Natural Resources or a Department of Energy and Natural Resources would have transferred NOAA and other ocean-related programs to what, in effect, would be an expanded Department of the Interior. Recent bills with their genesis in the old DNR/DENR concepts, such as S. 3339, and a proposal announced by Senator Charles Percy, but not formally introduced in the 94th Congress, move away from melding 60 Ibid. p. S 17855. ocean functions into the general Interior-oriented programs. This tendency is significant because of its implication that ocean resources and programs have unique qualities that may require them to be ap- proached in a specific rather than functional manner. The Department of Energy and Natural Resources Act (S. 3339), while not transferring any ocean- related programs to the DENR, instructs it to "ex- plore and survey the earth, the atmosphere, and the oceans." 51 Presumably, such functions would be those nor- mally embodied in the activities of the U.S. Geolog- 61 U.S. Congress, Senate. Department of Energy and Natural Resources Act. 94th Cong., 2d sess., 1976, S. 3339, Sec. 5(a). IX-32 ^m ical Survey and the Bureau of Land Management, which have responsibilities for the administration of the Outer Continental Shelf Lands. This bill, having been introduced by Senator Abraham Ribi- coff, Chairman of the Senate Committee on Govern- ment Operations, is considered to be the stalking horse for the generic class of energy-natural resource reorganization legislation that preceded the crea- tion of the Department of Energy in 1977. Senator Charles H. Percy announced his inten- tion to introduce a bill in the 95th Congress to create a Department of Energy Supply and Natural Resources (DESNR). 52 Like the Ribicoff DENR proposal, the Percy DESNR concept would affect the ocean programs lying outside the Department of the Interior very little. Two bills introduced in the 94th Congress pro- posed to merge ocean activities into a broad-based natural resources agency similar to the original DNR concepts of the 92d Congress. The Resource Policy Reorganization Act of 1975 (S. 2726) proposed both a sweeping reorganization of Federal resource and energy programs and legislative reorganization to create a joint committee for oversight and policy. Under the scheme of S. 2726, all of the functions of NOAA, the civil functions of the Corps of Engineers and the Board of Engineers for Rivers and Harbors, would be transferred to a newly created Department of Natural Resources. While Section 213 of the bill refers to transfer of organizational entities into an "Oceanic, Atmospheric, and Earth Sciences Admin- istration," such an administration is not created by Section 203, which sets out the internal organization of DNR. Because of this inconsistency one is not able to comprehend fully how ocean programs would be administered within the proposed organization. It is reasonable to assume, however, that ocean functions would be under the cognizance of the Earth Sciences Administration created in Section 203. A comprehensive reorganization proposal was made in S. 27, a bill which would create a Depart- ment of Natural Resources and Environment. The bill proposed a Cabinet-level department which would encompass the functions of the Department of the Interior (except the Bureau of Indian Affairs and the Office of Territories), NOAA, civil functions of the Corps of Engineers, Board of Engineers for Rivers and Harbors, and related coastal engineer- ing activities as well as the U.S. Forest Service, Soil Conservation Service, and resource components of the Agricultural Research Service and Economic Research Service of the Department of Agriculture, functions of the Pipeline Safety Office of the Depart- ment of Transportation, Water Resources Council, ERDA, NRC, and FEA. To the extent that DNRE would combine the functions of oceans and environ- ment in a single agency, the proposal parallels the proposal for a Department of Environment and Oceans (DEO) in S. 3889. Outer Continental Shelf Management Reorganization Far-reaching revisions of the Outer Continental Shelf Lands Act of 1953 have been introduced in each Congress from the 92d through the 95th. Each of these would invoke major changes in the bidding system on OCS oil and gas leases and would signifi- cantly change the administration of offshore resource management. However, the bills would not affect the inherent authority of the Bureau of Land Manage- ment (BLM) to administer the leasing program in the Outer Continental Shelf lands, nor would the internal organization of the Department of the In- terior be affected. Some observers have proposed the creation of a "wet leasing" agency which would assume the au- thority for administering OCS lands and establish a center of expertise for administering Federal sub- merged lands. A proposal which would go part way toward accomplishing this was introduced in H.R. 15527 of the 94th Congress, the "Outer Continental Shelf Management Reorganization Act." The bill would establish an Office of Assistant Secretary for 52 U.S. Congress, Senate. Senator Charles Percy announcing his intention to create a Department of Energy Supply and Natural Resources. 94th Cong., 2d sess., 28 September 1976, Congressional Record 122: S 16944. Outer Continental Shelf matters within the Depart- ment of the Interior. All functions within the De- partment of the Interior dealing with the Outer Con- tinental Shelf with the exception of cartographic and surveying functions of the USGS, would be transferred to the Assistant Secretary. Other func- tions dealing with the placement or use of artificial islands, fixed structures, or pipelines in the naviga- tional waters or within the coastal zone which are performed by the Department of Energy. Interstate Commerce Commission (ICC), Department of Trans- portation (DOT), and the Corps of Engineers, would also be transferred to the Assistant Secretary's Office. The bill provides for the establishment of an Outer Continental Shelf Council consisting of the Assistant Secretary, the Administrators of EPA and ERDA, the Chief of Engineers, a representative of the Secretary of Commerce and, in the case of de- cisions affecting other agencies, the head of the affected agency or governor of an affected State. The OCS Council could review any decision made by the Secretary of the Interior which would affect an agency from which a function was previously transferred. Any agency or department taking an action which would "directly and significantly" IX-33 affect the Outer Continental Shelf or its development would be required to report such action to the Secre- tary of the Interior, who makes amendatory recom- mendations to the Council for final determination. The Office of the Assistant Secretary for Outer Continental Shelf Matters would also serve as clearing-house and focus for liaison with State and local governments through a Division of State and Local Liaison. To a limited extent, the infrastructure proposed in the bill (H.R. 15527) is responsive to the need for an ocean management capability in the Federal Government to regulate the growing use of offshore areas and resolve use conflicts. Need for Long-Range Resource Planning Comprehensive resource management requires continued future planning. Functional management within the departments and agencies often fails to provide the integrated long-range planning necessary to promote wise resource use. H.R. 2332 of the 94th Congress proposed the creation of an "Agency for Economic and Natural Resources Planning" within the Executive Branch. The responsibility for resource and economic planning would be divided between two Assistant Administrators. Setting Priorities: The Budget Process While congressional authorizations, in a sense, determine the "qualitative" characteristics and con- tent of Federal programs, it is the budget process and appropriations that determine the "quantitative" aspects of such programs. Priorities of Government are set by the budget process. In a real sense, the budget process is also a major determinant in estab- lishing ocean policy. Budget decisions not only serve to allocate funds among major governmental activi- ties, but decisions must also be made among alterna- tive programs within each major budget category. The outcome of such decisions influences the mag- nitude and direction of the Federal programs, hence the impact of functional policy. The budget process also plays a significant role in coordinating and re- solving key issues that filter through the agencies into the Office of Management and Budget via the budget process. Balance may thus be maintained among competing agencies; and duplication and overlap can be controlled. The Office of Management and Budget (OMB), created pursuant to Reorganization Plan No. 2 of 1970, superseded the old Bureau of the Budget. OMB's functions embrace a broad set of activities dealing with budget formulation, policy planning, policy assessment, and policy coordination. As part of the Executive Office of the President, it is con- sidered to be an extension of the President himself, and therefore is protected by executive privilege, although the Director of OMB must now be con- firmed by the Senate. The budget process is not wholly internal to OMB. Departmental review of agency budget pro- posals during the budget process involves a series of budgetary decisions on programs and directions as the proposals pass from agency submission to final secretarial approval. Offices compete actively to "sell" their programs in the budget process. Whether policy decisions are consciously part of the depart- mental review process depends on the department's operating procedures. Nevertheless, policy decisions are made in the process of budget review from pro- posal to final submission of the President's budget to the Congress and the process does not stop there. Congress imposes its set of priorities through the budget resolution-authorization-appropriation pro- cess. The politics of the budget in the Executive Branch are similar to the politics of appropriations in the legislative branch. Enactment of the Congressional Budget Control and Impoundment Act of 1974, which requires the Congress to set a congressional ceiling on Government spending just as the Presi- dent must do, has made the congressional budget process even more similar to the executive budget process." The organization of OMB for budget purposes reflects a modified functional breakdown of govern- mental activities. Ocean affairs are fragmented among eight divisions: International Affairs; Energy and Food; Economics and Government; Natural Re- sources; National Security; Human Resources; Sci- ence, Space and Energy Technology; and Community and Veterans Affairs. On the surface of the OMB budget organization there is even less consolidation in dealing with ocean-related budget items than there is in the overall organization of ocean programs in the agencies. The OMB budget organization is, in part, dictated by the organization of the President's budget document and, in part, by the jurisdictions of the appropriations subcommittee in the Congress. While the divisional organization of OMB parallels a logical functional breakdown, ocean programs are assigned among the budget divisions according to the organization in which they reside. Thus, while NOAA, MarAd, and the U.S. Coast Guard pro- grams are reviewed by the Economics and Govern- M Public Law 93-344; 88 Stat. 297. IX-34 merit Division, most Department of the Interior programs, including those of the U.S. Geological survey, are reviewed in the Natural Resources Di- vision, and programs of the Bureau of Mines are considered by the Interior Department Branch. To the extent that the responsible budget analysts coor- dinate with their counterparts in other budget divi- sions, the fragmentation of the budget for ocean- related activities can be partially overcome. Although it would be a difficult task, it is entirely possible to reassign budget responsibilities among the functional divisions of OMB to improve the com- prehensiveness of the "ocean budget" review. This could be achieved even in the absence of general governmental reorganization. The question obviously is whether the improved examination would be worth the difficulty in bringing about the reorganization, and whether it can be done for ocean agency budgets without disruptive effects on other agency reviews. The budget process, from program to agency to department and OMB, and through the President, is a quasi-adversarial proceeding of endless negotiations. Budget offices at all levels are cast in the role of critics. Appeals of budget decisions to higher au- thorities are available at all stages in the budget process, including the ability of Cabinet Officers to appeal OMB decisions to the President for final resolution, although this is rarely done. Whether budget decisions drive the policy, or whether policy decisions drive the budget is an im- portant unknown. In any event, the budget is an imperfect decision mechanism. Zero-based budget- ing, however, has the potential for bringing policy- making and the budget into closer correspondence. IX-35 AOVISORY ORGANIZATIONS NATIONAL RESEARCH COUNCIL NAS/NAE NATIONAL ADVISORY COMMITTEE ON OCEANS ANO ATMOSPHERE AGRICULTURE SOIL CONSERVATION SERVICE AGRICULTURAL RESEARCH SERVICE COOPERATIVE STATE RESEARCH SERVICE FARMERS HOME ADMINISTRATION NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION MARITIME ADMINISTRATION ECONOMIC DEVELOPMENT ADMINISTRATION REGIONAL PLANNING COMMISSIONS HEALTH. EDUCATION AND WELFARE ARMY CORPS OF ENGINEERS l;IHNM MAPPING AGENCY DEFENSE ADVANCED RESEARCH PROJECTS AGENCY FOOD AND DRUG ADMINISTRATION NATIONAL INSTITUTES OF HEALTH OFFICE OF EDUCATION FEDERAL DISASTER ASSISTANCE ADMINISTRATION GEOLOGICAL SURVEY LAND ANO NATURAL RESOURCES DIVISION FISH ANO WILDLIFE SERVICE BUREAU OF MINES BUREAU OF LAND MANAGEMENT HERITAGE CONSERVATION AND RECREATION SERVICE NATIONAL PARK SERVICE OFFICE OF WATER RESEARCH AND TECHNOLOGY BUREAU OF RECLAMATION BUREAU OF INDIAN AFFAIRS OFFICE OF TERRITORIAL AFFAIRS \f. aiih RESOURCES COUNCI1 IX-36 PRESIDENT EXECUTIVE OFFICE OF THE PRESIDENT OFFICE OF MANAGEMENT AND BUDGET DOMESTIC POLICY STAFF OFFICE OF SCIENCE AND TECHNOLOGY POLICY NATIONAL SECURITY COUNCIL COUNCIL ON ENVIRONMENTAL QUALITY COMMITTEE ON ATMOSPHERE AND OCEANS OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION TRANSPORTATION BUREAU OF OCEANS AND INTERNATIONAL ENVIRONMENTAL AND SCIENTIFIC AFFAIRS BUREAU OF INTERNATIONAL ORGANIZATION AFFAIRS ENVIRONMENTAL PROTECTION AGENCY NUCLEAR REGULATORY COMMISSION NATIONAL SCIENCE FOUNDATION COAST GUARD OFFICE OF PIPELINE SAFETY AGENCY FOR INTERNATIONAL DEVELOPMENT OFFICE OF DEEPWATER PORTS DIRECTORATE FOR ASTRONOMICAL, ATMOSPHERIC, EARTH AND OCEAN SCIENCES DIRECTORATE FOR SCIENCE EDUCATION DIRECTORATE FOR RESEARCH APPLICATION Figure 9-1. - Departments and agencies administeiing ocean programs in 1977. IX-37 •fr U.S. GOVERNMENT PRINTING OFFICE : 1978 O— 271-976 PENN STATE UNIVERSITY LIBRARIES ADDDD7Dfl7SmD .t)"* X 1M? ■JgVff.. ^ r «a\ 3 ns c rjfr?c % oj£