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6 COORDINATION AND PLANNING This section looks beyond scientific and technological questions to examine nontechnical issues related to timely acquisition of data and understanding needed for rational development of the EEZ. They fall into two categories: 1. issues related to regulation and management of EEZ uses, and 2. issues involving broader questions of government policy with regard to the EEZ. Although these issues do not directly involve the committee's main focus of science and technology, they will play a significant role in the pace and efficiency with which the nation studies and develops the EEZ. Lack of an adequate regulatory regime can slow or prevent research and development; lack of effective national planning and coordination can increase EEZ research and data acquisition costs; and failure to include adjacent coastal states in research and exploration can reduce state enthusiasm at the development stage. REGULATORY CONSIDERATIONS The Complexities of the EEZ On December 27, 1988, President Reagan issued a proclamation extending the U.S. territorial sea from 3 to 12 miles in width, an action justified as necessary to protect national security interests and one fully consistent with international law. Indeed, this action brought the United States into conformity with most other coastal nations with regard to territorial sea width. The U.S. EEZ now begins at 12 miles from shore and extends to 200 miles, and is 188 miles in extent. EEZ resources, for the most part, are controlled (~sovereign rights by the national government, and, in the absence of legislation assigning responsibility to a specific entity, the broad missions of many federal agencies include EEZ interests and activities. For example: . . NOAA and USGS-science, mapping, and surveys; Coast Guard-surveillance and enforcement; · EPA~ater quality; NMFS-fisheries and marine mammals; USGS, MMS, and the Bureau of Mines-hydrocarbons and minerals; DOD (especially the Navy)-national security; NSF-university-based research. 107
10$ Coastal states also have limited extra-territorial powers extending seaward into the EEZ. The Coastal Zone Management Act of 1972 (CZMA), the Deepwater Port Licensing Act, and the Ocean Thermal Energy Conversion Licensing Act give states some influence over federal actions affecting their coastal zones, and the Outer Continental Shelf Lands Act (OCSLA) of 1978 gives states avenues to affect decisions involving EEZ offshore oil and gas activities. In addition, coastal states have strong economic and environmental interests in the adjacent ocean and therefore in plans and activities related to EEZ development. Furthermore, since economic development of resources is generally undertaken by the private sector, commercial firms are also involved in research and exploration activities that precede resource development. An additional complexity~associated with' this region is that the EEZ retains a substantial measure of international character. While the United States has jurisdiction over the resources, the EEZ is not U.S. territory. Except for resource related activities, it is similar under international law to the high seas: other nations have freedom of navigation over, under, and on the surface, the right to lay pipelines and cables, and may enjoy other non-resource related high seas freedoms. Thus, U.S. use of the EEZ and its resources occurs in an area where other nations also can reasonably freely exercise their rights. The economic status of the EEZ and its resources also affects private sector interest in resource development. The problem stems from the nature of common property or open access resources, because without an exclusive stake in the resources in question, a potential private developer may have little incentive to conserve or manage wisely for the future (Hardin, 1969~. Within the general jurisdictional framework of the EEZ, more limited jurisdictions have been created that remove portions from open-access but do not create private property. The Magnuson Fisheries Conservation and Management Act (MFCMA) created a 200-mile fishery management zone where access is still free and open to all U.S. comers, except for some notable exceptions where entry is limited. Under the OCSLA, offshore tracts are leased exclusively to private concerns for hydrocarbon exploration and production, an approach that comes closer to assigning property rights. Other laws have created special ocean dumpsites, vessel traffic lanes, marine protected areas, and defense operating zones. A major governance problem of the EEZ is that such single-purpose legislation tends to pay relatively little attention to the effect of any particular use on others. such as displacement or adverse effects on other activities. , , , The multiplicity of legislation and interests in the EEZ also affects research. Numerous government agencies, their contractors and grantees will be involved in EEZ research along with industry and academia. It is clear that all scientists and engineers conducting research in this region would benefit from a more collaborative approach to research, mapping, and surveying, with improved coordination and joint advance planning. Multiple-Use Conflicts As discussed earlier in this report, the oceans and the seafloor are home to many different uses: some are compatible, others are less so, and some are in conflict. Surface uses such as navigation and water column activities like fishing tend to be transient, while seafloor utilization usually requires emplacement of equipment, facilities, or structures, and hence commitment of a specific area to an exclusive use. This occupation can be relatively short, as in some scientific or monitoring studies; up to tens of years for exploitation; or very long-term, such as emplacement of containerized waste. Long-term occupation of the seafloor is a consequence of at least four ocean activities: offshore oil and gas development (platforms, pipelines, subsea production facilities); ocean mining (mine sites); military installations (test ranges, acoustic arrays); and waste disposal (dumpsites). In addition, intermittent uses occur in fixed areas, such as trawling for bottom fish or submarine navigation in specified lanes. All of these uses are likely to increase in the future, and since some conflicts among them are already occurring, still further use of the EEZ will depend on effective mechanisms for
109 accommodating multiple uses (including research and technology development). Similar pressures in the coastal zone led to the enactment of the CZMA and emplacement of federally approved state programs to manage coastal zone conflicts within the states' three-mile jurisdictional limits. There are no mechanisms yet in place to encourage or facilitate federal interagency planning and coordination to reduce or eliminate such conflicts in the EEZ. The present EEZ planning and regulatory framework is composed of individual laws, each pertaining to the management of a single resource or use and each with its own established regulations, administration, and so on. Furthermore, except for the Presidential approval required to designate a marine sanctuary, decisions regarding a specific ocean use are made exclusively by the responsible federal agency. In the absence of better mechanisms, federal agencies comment on specific environmental impact statements to communicate their concern about proposed ocean activities. Ad hoc approaches are also used, such as the communications between the Departments of the Interior and Defense over potential conflicts between offshore oil development and military uses. In the sections below, the adequacy of both the existing regulatory framework and the present system to govern the EEZ are examined. The Regulatory Framework The existence of a regulatory system that is appropriate to the activity being regulated and one that leads to predictable outcomes based on an accepted public policy framework is essential to private sector investment decisions. Inappropriate, incomplete, or burdensome regulatory systems can have a chilling effect on orderly development and utilization of EEZ resources, and on research and exploration. For a regulator system to be adeanate and eallitahle it milst he t~chnic~liv O ~ ~ ~ hi, ~ ~ _ _^ ~-~ ~ ·-~ appropriate for the resource in question; protect the interests of resource owners (the public in this case); deal equitably with unavoidable spillovers and side effects that adversely affect other ocean users and adjacent state and local interests; and promote research, efficient exploitation, and conservation of the resources in question. The existing EEZ regulatory systems for oil and gas, minerals, and fisheries are examined below. Oil and Gas Regulation EEZ oil and gas development is regulated principally by the OCSLA and elements of the CZMA, the Endangered Species Act, and the National Environmental Policy Act. Individual firms or consortia bid for exploration leases of 5 to 10 years duration. If commercial-size deposits of hydrocarbons are discovered, the lessee submits a plan to the Department of the Interior to develop the deposit-install platforms, lay pipelines, and so on-and production begins and continues for 20 to 30 years. The OCSLA regulatory framework attempts to balance environmental concerns and spillover effects on other ocean users with the need for accelerated development of domestic oil and gas supplies. This is accomplished using a five-year leasing plan, environmental studies program, and environmental impact statement at the lease sale stage, with site-specific lease stipulations. Environmental impact statements are required in connection with review and approval of `;levelopment and production plans and the agency's decision-making process. Although all of the decisions are ultimately made by either the MMS or the Secretary of the Interior, the process Glows for input from the public and governors of coastal states. Yet several states-most notably California, Alaska, and Massachusetts-and a number of environmental groups, have gone to court and to Congress to argue for a more direct voice in offshore oil and gas decision making. At present, a virtual stalemate exists with regard to future federal leasing offshore of many coastal states.
110 Hard Minerals 1 EEZ hard mineral deposits, especially sand and gravel and placers, may be economically feasible to develop within the next two to five years, but such development could be delayed by lack of an appropriate regulatory framework (Chapter 3~. There are two problems related to a regulatory regime for ocean minerals. The first involves the portion of the EEZ overlying the continental shelf. The Department of the Interior position is that the regulatory regime created by the OCSLA is appropriate for continental shelf hard minerals even though that regime was designed principally for oil and gas. The second problem involves minerals beyond the continental shelf but Within the EEZ. Again, Interior interprets the OCSLA as covering this area, but representatives of the mining industry, coastal states, and environmentalists, testifying before Congress, have argued that new, specialized legislation to cover seabed mining in the EEZ is needed (U.S. Congress, 1989~. These issues are the subject of legislation currently under consideration. Fisheries The MFCMA created a 200-mile fishery conservation zone and put in place a unique regulatory framework consisting of a decision-making partnership between the federal government (Secretary of Commerce), state governments, industry, and the public. Management plans are prepared by regional fishery management councils, submitted to the Secretary of Commerce for approval, and administered and enforced by NOAA's National Marine Fisheries Service. Individual coastal states continue to manage fish stocks in their own territorial waters. The regulatory system works reasonably well, although the inefficiencies of open-access fisheries are becoming more and more evident. For example, excess fish catching capacity in one west coast fishery has resulted in the allowable catch for the entire year being taken in a single 36-hour Season. (Personal communication, Steve Rebuck, Pacific Coast Federation of Fisherman's Associations, 1989) Federal Licensing of Ports and Offshore Facilities Two additional regulatory regimes-federal licensing of offshore ports and ocean thermal energy facilities-are of interest because they require comprehensive environmental impact analysis and explicitly build a coastal state role into the federal decision-making process. In both cases, federal laws give affected coastal states concurrent decision-making authority with the federal government because of the direct connection (e.g., pipelines or cables) between offshore facilities and the state's coastal zone and potential impacts of the two activities on the coastal environment and its inhabitants. The principles established in these two pieces of legislation (the Deepwater Port Licensing Act and Ocean Thermal Energy Conversion Act) could form the basis for a state role in governance of the EEZ. Existing Planning and Coordination Processes As mentioned above, there are few processes in place for planning and coordinating EEZ activities, yet given the numerous jurisdictions and interests involved, planning and coordination are essential. One can group ongoing EEZ activities into four categories:
1. research; 2. mapping, surveying, and technology development; 3. site-specific exploration; and 4. resource exploitation and use. The federal government, industry, and academia are involved in all of these activities, and benefits would accrue to all from improved planning and coordination. Increases in both efficiency and effectiveness of current activities are possible. For example, scientists working in the EEZ believe that research costs could be reduced by greater use of piggybacking of noninterfering experiments on available platforms. The only formal planning and coordinating effort now in existence at the national level is the joint USGS,NOAA JOMAR mapping and research program created by the Secretaries of the Interior and Commerce in December 1987. JOMAR is intended to be a formal mechanism for coordinating federal EEZ mapping and research activities. According to JOMAR's charter, coordination Trill avoid duplication of activities, assure adequate response to the needs of users and provide for timely delivery of products and services and exchange of data," and is intended to "facilitate private sector involvement in the direction and use of EEZ-related data products. The charter also indicates that JOMAR is to "provide leadership for the design, implementation, and coordination of a national EEZ program of mapping and research and investigation of the nonliving resources of the EEZ seafloor and "ensure participation by all interested groups in the formulation of goals, objectives, and priorities for a national EEZ mapping and research program. Thus JOMAR is principally concerned with the coordination of USGS and NOAA mapping programs for the EEZ. It is not clear whether this program could serve as the basis for the broad-based coordination of government, industry, and academic research efforts in the EEZ that will be required in the future. Other potential users of the seabed, especially states and private industry, need to be included in future planning efforts. PLANNING AND GOVERNANCE The previous discussion centered on the regulation of particular EEZ uses or activities insofar as regulation affects data and information acquisition. A broader concern is by what means are national interests incorporated into EEZ decision making. Similarly, by what processes are the interests and well-being of coastal populations reflected in these decisions? Finally, if these interests diverge, how is the balancing done and by whom? Governance issues are important, because controversy or disagreement among federal, state, and local governments can slow efforts to gather requisite information about the EEZ and its resources. Balancing Different Interests As EEZ uses grow in magnitude and variety, coastal states have made it clear that they expect to play an increasingly important role. States can be active supporters of EEZ development and are eager for data and information concerning the ocean resources and environments adjacent to their shores. States have strengthened their capacity to deal with ocean and coastal issues as a result of their participation in the coastal zone management program, the Interior Department's OCS leasing program and its MMS-operated federal-state minerals working groups, and regional fisheries councils under the MFCMA The coastal states have the potential to become constructive and contributing partners with the federal government in EEZ exploration and development. Yet, the relationship between some coastal states and the federal government has become adversarial because states believe their interests are not given adequate attention in federal decision making. This situation has led states, in some cases, to block federal EEZ research efforts. For example, EPA's recent
112 efforts to conduct research burning to test the effectiveness of ocean incineration of toxic wastes was stopped by massive state and local opposition. How decisions are made and who makes them is always a matter of keen interest to governments and their agencies. Coastal states with important economic and environmental interests at stake believe they should be "at the table" when decisions are made concerning the EEZ adjacent to their coastal waters. Issues that are not resolved early in the national EEZ planning process have the potential to cause serious problems and delays later. Based on experience with ocean resource development activities, concerns that could generate opposition to EEZ development in some coastal states include the following: . . · possible damage to the ocean environment or the renewable resource base; possible adverse impacts on other ocean uses of economic or social interest to the state, such as fishing; · possible impacts on the state of increasing activity in the EEZ without a voice in federal decision making concerning those activities; and · possible exposure of coastal state populations to greater risks without offsetting benefits. COORDINATION AND POLICY CONSIDERATIONS Next to be examined are EEZ issues that involve national policy interrelationships among the federal government, industry, and academia. For example: · Does the inherent importance of the EEZ and the magnitude of information necessary to develop it require a more focused and better directed national effort? · Does the scientific and technological effort now underway with regard to the U.S. EEZ have the desired coherence or is a more formally defined national program needed? · Are present policies or practices inhibiting efficient and timely exploration and utilization of the EEZ? . Recognizing the large volume of research, mapping, and resource surveys needed in the EEZ, would new policies or approaches significantly speed up this information-gathering process? These questions are examined below. A National Policy for the EEZ While one can take the position that President Reagan's 1983 proclamation provides a fully adequate statement of national policy regarding the EEZ, an alternative view is that until the Congress formulates a policy, national EEZ policy remains unclear or at least incomplete. The President's proclamation does not contain certain elements necessary to a formal national policy. For example, to provide a sense of national urgency or priority, a statement of national policy might contain findings in support of a national interest in a particular field or activity, outline an approach or general direction to be followed by the federal government and policy goals related to the new activity or area; and provide a mandate for development of a national plan to achieve specified national policy goals. This last step is typically accompanied by designation of a lead federal agency and interagency coordinating committee of some sort. In some cases, an outside group (commission or council) is established to bring nonfederal interests (for example, industry, academia, and state and local governments) into the national development process. National policy pronouncements contained in legislation enacted into law serve the important purpose of indicating both congressional and executive branch support for certain policies and mechanisms. Experience suggests, however, that national policy pronouncements that contain only
113 findings and exhortations and no new mechanisms or programs are not very effective. For example, several pieces of legislation have proclaimed a national policy relative to strategic minerals, but with little visible effect. While the case for EEZ policy legislation is not overwhelming at this time, such legislation may be the only way to improve coordination and increase efficiency. Although mechanisms can probably be created within the Executive Branch to improve coordination to some extent, it is doubtful that nonfederal groups and interests can be given meaningful roles in such a coordination device. Optimizing Research Investments and Capability Given the number of organizations and interests involved, it is understandable that current research efforts in the EEZ sometimes appear fragmented. The cost of research and the magnitude of scientific work to be undertaken suggests that increased efficiency is needed. Suggestions about the kinds of collaboration and coordination that might be feasible, along with fi'ncizons needed to be undertaken, fall into two categories: 1. Scientist-related functions meet the needs of the individual scientists actively engaged in EEZ studies. Periodic, informal meetings of government, industry, and academic scientists and engineers actively involved in EEZ research are needed to review ongoing programs; exchange new data and results; develop joint programs and piggyback research efforts; identify dead-end projects; and join together in experiments, modeling, data analyses, and other activities appropriate to individual investigators and their research programs. 2. Agen~y-relatedfi'nctions are necessary to improve the efficiency and effectiveness of government agency programs pertaining to the EEZ (e.g., mapping, resource surveys). Mechanisms are needed to perform joint planning and coordination of mapping and suIvey plans and programs, research, and technology development; share EEZ information and data; cooperatively develop multiple-use approaches; conduct cooperative research among the federal government, academia, and industry; and identify and resolve conflicts among ocean users. Coordinating Mechanisms Before considering possible coordination mechanisms, it is useful to examine other national research program areas in which decisions have been made to improve coordination. These involve arctic and ocean pollution research. An examination of the Arctic Research and Policy Act of 1984 and the 1986 amendments to the National Ocean Pollution Policy Act suggest that these pieces of legislation (and the coordination mechanisms contained therein) were motivated by · the need to stimulate greater investment in research in those areas; · the need to promote greater efficiency in expensive research activities by reducing overlap and duplication; · the need to ensure that federal research benefits other interests (such as state and local governments, native groups, and industry); and · the need to ensure that research programs focus adequate attention on issues deemed important from a national policy perspective. To the extent that such needs may also apply to the EEZ, it is appropriate to examine mechanisms in the two pieces of legislation. They are as follows:
114 The Arctic Research and Policy Act establishes a national plan for arctic research; establishes an Arctic Research Commission (composed largely of nonfederal interests) to promote arctic research and recommend an "integrated Arctic research polipyn; · establishes an Interagency Arctic Research Poligy Committee to develop the ~ve-year arctic research' plan; and ' ' · ' designates the National Science Foundation (NSF) as the lead agency for implementing arctic research policy. The National Ocean Pollution Policy Act · establishes a five-year plan for ' the overall federal effort in ocean pollution research; · establishes a National Ocean Pollution Policy Board to coordinate planning, research, and programs; review agency budget requests; end 'establish interagency groups as needed; and' · creates an office in NOAA to coordinate the program. These two acts have three elements in common: each establishes a five-year national research plan; each establishes an interagency board or commission to set policy and oversee development of the plan; and each designates a federal agency to lead or coordinate the program. One important difference is that the' arctic legislation specifically incorporates nongovernment interests into the process. One possible option to improve the direction and coherence of a national EEZ research effort would be legislation involving a similar three-element approach or some variant. Other options might employ less formal mechanisms, such as consideration of new NSF centers for science and technology or use of the National Research Council or other nongovernmental institutions to convene discussions of research results and design "cooperative programs. For example, annual conferences could be hosted, on' a rotating basis, by government, academe, and industry to design cooperative undertakings, test new models, and discuss 'research, mapping, and surveying priorities. SUMMARY The great costs involved in exploring and understanding the EEZ and its resources and the long lead times needed require a level of planning and coordination not usually present in studies of the coastal ocean. The committee found that it was difficult to separate preliminary activities-such as research, surveys, and mapping-from subsequent resource exploration and development. As the EPA's ocean incineration program shows, unless there is general agreement among affected interests regarding a new ocean use or development, even early research can run into serious difficulty. Hence, it is important to examine the existing regulatory framework and overall governance arrangements in the EEZ as they affect relationships between the federal government and coastal states. Many uses of the EEZ seafloor are likely to require exclusive or near exclusive occupation of a fixed portion of the seafloor for a relatively long time (ten years or more), in contrast to water column or surface uses, many of which tend to be transient in character. This increases the importance of developing effective multiple-use planning mechanisms for the EEZ. Similarly, rational development could be affected by legal frameworks used to regulate various activities, which is especially problematical for hard minerals development. The lack of a specific regulatory regime for EEZ hard minerals could deter the exploration and exploitation of these mineral resources. The EEZ is a new type of ocean jurisdiction, one that is coupled both to the high seas beyond its outer boundary and waters under coastal state control at the territorial sea boundary. Thus, in developing EEZ resources, the federal government has responsibilities both to the community of nations (to allow freedom of navigation and other high seas freedoms) and to coastal states (to ensure that state and local interests are not compromised in the name of national interest). Coastal
115 states often have strong economic and environmental interests in the EEZ beyond their coastal waters. Given these interests, and because shore-based facilities such as ports and harbors are essential to EEZ resource development, coastal states believe that rational development demands close and positive working relationships between the federal government and themselves. The committee endorses this view and encourages the federal government to work with the states to forge such a partnership. The CZMA created a national program to encourage and assist in the development of state programs to manage the coastal zones and territorial seas in a more comprehensive manner: 29 of the 35 eligible states and territories now have such programs. However, no such effort exists in ocean waters under federal jurisdiction (the EEZ). For example, no federal agency has responsibility for overseeing development of a national ocean policy; resolving conflicts between federal ocean activities; or coordinating federal programs of mapping, surveying, and research (except for JOMAR). While it is beyond the committee's charge to deal with such issues as national ocean policy formulation, the present national EEZ program suffers from overall lack of coordination of ocean activities within the federal government. Mechanisms are needed to better plan and coordinate a national EEZ effort, and although the needs are different, individual researchers and novernm ent agencies would benefit from improved coordination. c~ _ While the formation of JOMAR by NOAA and USGS is a step toward a cooperative effort, it is not yet clear whether JOMAR will be able to bring nonfederal interests (industry, academia, and state governments) into the planning and coordination process on an equal footing with federal agencies. Also, the extent to which this mechanism can obtain (and retain) the positive involvement of key federal ocean agencies beyond NOAA and USGS remains to be seen.
