Testimony to the

U.S. Senate Committee on Commerce, Science and Transportation

National Ocean Policy Study

By

Dr. Michael K. Orbach

Professor of Marine Affairs and Policy and

Director

Duke University Marine Laboratory

Nicholas School of the Environment and Earth Science

Duke University

August 3, 2006

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Ladies and Gentlemen,

I am pleased to testify before you today on the topic of United States
coastal and ocean policy, how that policy is reflected in current and
pending legislation in the U.S. Congress, and how the development and
implementation of that policy could be improved. My own background is
the social and policy sciences, including the human and institutional
ecology of coastal and ocean environments. I have worked with most of
the federal agencies involved with coastal and ocean policy in the U.S.,
all of the coastal states in the U.S., all of the Regional Fishery
Management Councils and Interstate Marine Fishery Commissions, and with
several international marine resource management institutions. I also
served as an advisor to both the U.S. Commission on Ocean Policy and the
Pew Oceans Commission.

In my testimony today, I will emphasize the concept of *[ecosystem
management]{.underline}*, and the applications of that term to coastal
and ocean policy.

**[The "Ecologies" of Coastal and Ocean Environments]{.underline}**

My definition of the term "coastal and ocean environment" begins with
the biophysical resources that occur from the heads of coastal
watersheds to the deep ocean, and the interaction of those terrestrial
and marine resources with the atmosphere. This environment can be
bounded in various ways for particular place-based policy applications,
such as in the Chesapeake Bay watershed; the watersheds and ocean
jurisdictions of states or nations; or the environments of particular
species or biophysical features such as the habitat of Pacific Salmon,
the Gulf Stream, or the Sargasso Sea. These bounded biophysical
resources and environments I term the *[biophysical
ecology]{.underline}* for a particular policy-making purpose.

Included in my definition of "coastal and ocean environments" are also
two other ecologic systems, the *[human ecology]{.underline}* and the
*[institutional ecology]{.underline}*. The *[human ecology]{.underline}*
are those humans and human behaviors that affect, are affected by, or
are otherwise concerned with the elements of a defined biophysical
ecology. I define the *[institutional ecology]{.underline}* as those
governance institutions that govern or affect the behavior of people in
the human ecological system. So, for example, if we are considering the
salmon fishery of the U.S. Pacific Northwest, the biophysical ecology is
defined by the salmon species and their habitats throughout their
migratory range (Idaho, Washington, Oregon, Canada, and the North
Pacific Ocean). The human ecology consists of those humans and their
behaviors that affect the salmon directly (fishing) or the salmon
habitats (development, agriculture, or hydroelectric power), or even the
biophysical trophic linkages with salmon (predators, prey). The
institutional ecology consists of those policy and management
institutions (local, state, regional, national, and international) whose
policies and rule-making affect the defined human ecology. There are, of
course feedback loops among all of the elements of this "total ecology",
including the relationship between "civil society" and our formal public
trust institutions.

Thus, when I use the term "coastal and ocean environment" for the
purposes of policy-making, I am including all three of the above
'ecologies' -- biophysical, human, and institutional.

It is also important to note at the outset that all public policy for
coastal and ocean resources has biophysical, economic and social
objectives, and when implemented has attendant biophysical, economic and
social impacts. Public policy decisions, usually in the form of
regulations or incentives, involve *[changing human
behavior]{.underline}*. Every public policy decision involves tradeoffs
between some state of the biophysical environment (abundance of fish,
water quality) and some flow of costs and benefits to humans (dollars,
cultural traditions, aesthetic values).

My own definition of the term "ecosystem management" is the policy
towards, and management of, human behaviors (human ecology), through a
specific governance structure (institutional ecology), that affect, or
are affected by, a defined biophysical environment (biophysical
ecology). I will frame my comments below within this definition, and
discuss the policy frameworks necessary to address the biophysical,
human, and institutional dimensions of ecosystem management of coastal
and ocean resources.

# **Characteristics of Coastal and Ocean Environments**

For most of the world's human population, the ocean is 'out of sight,
out of mind' (Orbach, 2002). Not only do most humans not live or work on
or in the ocean, but it is in fact an extremely hostile environment for
humans. It is too salty to drink or to irrigate crops. Its density both
smothers us if we are immersed in it and crushes us if we go too deep
without elaborate protection. Its waves bash us on beaches and in boats,
and its biochemical characteristics foul and corrode our machines and
structures. We can more easily go -- and commonly do go \-- one mile up
into the atmosphere than one mile deep into the ocean. Even though an
increasing number of us live or work near the ocean, it is still not an
"intimate environment" for most humans (Revelle, 1969; Orbach, 1982).

This matters precisely because humans develop governance institutions
for those spaces and resources about which they care most, and with
which they are the most intimately involved. This is why the most
complete set of governance institutions evolved first for humans in
relation to terrestrial, as opposed to ocean and atmospheric, spaces and
resources, beginning several thousand years ago. Those are the spaces
and resources for which we first developed awareness, and intimate and
dense use.

In the ocean, on the other hand, human societies did not effectively
begin to govern human behavior on the ocean through public policy in any
large measure until late in the 1700s with the adoption of the 3-mile
Territorial Sea, and no substantial universal management of ocean
resources occurred until the middle of the 1900s, beginning with the
mineral resources of the continental shelves and eventually extending to
the current 200-mile Exclusive Economic Zones (EEZ). Even with universal
200-mile Exclusive Economic Zones having been declared by riparian
states, in accordance with the Law of the Sea Convention, approximately
40% of the world ocean remains outside of areas of national
jurisdiction. Added to this are the twin notions of traditional "open
access" to resources such as fisheries, and the companion principle of
the "freedom of the seas", elucidated in the early 1600s and still alive
today as a basis for much policy-making for the ocean. The principles of
private property and the appropriateness of the management of public
trust resources, long established in terrestrial and even atmospheric
environments, have only recently begun to be applied to ocean
environments and resources (Orbach 2002).

Thus, the challenge of managing ocean environments and resources is a
relatively new one compared to terrestrial ones and, at the moment,
human society has more powerful and complete public policies for human
activity on land \-- and even in the atmosphere \-- than for human
activity in the ocean.

# **The Biophysical Ecology**

In virtually every part of the coastal and ocean environment where human
behavior is a significant presence, the biophysical environment
continues to degrade. There are notable exceptions to this -- some cases
of improved water quality, recovered fisheries, or increases in the
populations or threatened or endangered species -- but they are truly
the exception. There are three reasons for this continued
degradation: 1) lack of awareness or information regarding the issue; 2)
an inadequate public policy framework within which to address the issue;
or 3) a lack of political will, or political will that makes the policy
tradeoff in favor of the conscious degradation of the biophysical
ecology.

The ocean covers over 70% of the earth's surface, and throughout history
much of that area has been relatively inaccessible to humans. Although
humans have had significant impact on coastal and some nearshore
resources for many centuries, it is only in the last 150 years that
humans have had the capacity to impact oceanic resources to a
significant degree. We have now demonstrated the effects of that
capacity.

The important point to this testimony is that the biophysical resources
of the oceans \-- from fisheries, to mineral resources, to
pharmaceuticals, to the ocean's role in weather -- are an immense
potential resource and are critical for the future of humankind. Our
scientific knowledge of these resources, which leads to awareness of
their specific importance to, and potential use by, humans, is sorely
lacking. Our investment in ocean research and exploration, for example,
is only a tiny fraction of that invested in terrestrial or atmospheric
research. We must make a comparable investment in ocean research and
exploration to see the full potential of ocean resources.

# Legislative Implications

This immediate application of the above situation to current pending
legislation in the U.S. Congress is that authorizations and
appropriations for coastal and ocean research should be significantly
increased, in both the biophysical and social sciences, as is
recommended in both the reports of the U.S. Commission on Ocean Policy
(USCOP) and the Pew Ocean Commission (POC). This will give us the basis
for the rational and comprehensive management of ocean resources and
environments, as well as the means for increasing awareness of issues
involving these resources and environments.

# **The Human Ecology**

As a society, in our conceptualization of "environmental issues", in our
research and data collection, and in our construction of public policy
processes, we have made the error of focusing too much on the
biophysical ecology of coastal and ocean issues. *[It is imperative that
we have as much documented, valid data and information about the human
ecology of environmental issues as we do about the biophysical
ecology]{.underline}*. This is not the case at present. For example,
virtually all of the scientific components of our federal coastal and
ocean management agencies are dominated by natural or physical
scientists, with only a small smattering of social scientists. The
result of this is that we have been unable to adequately document or
judge the tradeoffs between the state of the biophysical ecology and the
state of the human ecology that are required for rational, comprehensive
policy and management decisions.

# Legislative Implications

The immediate application of this situation to current pending
legislation in the U.S. Congress is that every piece of legislation that
makes reference to "ecosystems" or to "ecosystem management" (for
example, the Magnusen-Stevens reauthorization bills) should include as
much reference to the human ecology of ecosystems (often termed the
"socio-economic" or "socio-cultural" characteristics) as to the
biophysical ecology of ecosystems, and that this attention should carry
though to the research and application funding process, both within the
federal agencies and in extramural funding for social science research.

# **The Institutional Ecology**

The institutional ecology of coastal and ocean governance -- ocean and
coastal legislation and those entities with authority and responsibility
for the implementation of that legislation -- in the U.S. is most often
correctly characterized as fragmented and single-issue oriented. That
is, we have one piece of legislation for marine fisheries, one for
offshore oil and gas, one for shipping, one for marine sanctuaries.
There is clearly insufficient coordination among these legislative
mandates, and among the agencies to which the legislation gives
authority and responsibility. There is also a lack of coordination among
local, state, regional, national and international levels of policy and
policy-making (Cicin and Knecht, 2002; USCOP; POC).

The authority and responsibility for developing, reauthorizing, and
implementing this legislation is also fragment and not well-coordinated.
For example, a myriad of different committees and subcommittees of the
U.S. Congress have authority or responsibility for coastal and ocean
legislation, and a myriad of different federal agencies and sub-agencies
have authority or responsibility for implementing this legislation
(USCOP, 2004; POC, 2003). The major federal "ocean agency", NOAA, is
famously placed in an inappropriate agency, the Department of Commerce
(see Wenk, 1972, for the history of this placement). Major authority for
coastal and ocean policy also resides in, among others, the departments
of Interior (Fish and Wildlife Service, Minerals Management Service),
Defense (Navy, Army Corps of Engineers), and in the Environmental
Protection Agency (Oceans, Coast and Estuaries), often for policy and
management topics very similar to those under the authority of various
NOAA entities (National Marine Fisheries Service, Office of Ocean and
Coastal Resource Management (OCRM)). One case of this is the placement
of the Coastal Zone Management Program in OCRM/NOAA under the Coastal
Zone Management Act, while the National Estuary Program is in Oceans,
Coast and Estuaries/EPA under the Clean Water Act.

Much of this split jurisdiction makes both overall policy-making and
specific regulatory processes difficult. As an example of the former, a
mechanism to mediate conflicts among the mandates of the
Magnusen-Stevens Fishery Conservation and Management Act (marine
fisheries); the Outer Continental Shelf Lands Act (offshore oil and gas
development), and the Marine Mammal and Endangered Species Acts does not
exist. All are based on different principles and values, and all direct
the federal regulatory agencies towards different goals. Unfortunately,
this occurs in a world where the biophysical and human ecologies of
marine fisheries, offshore oil and gas development, and marine mammal
and threatened and endangered species protection are inextricably
intertwined. In the area of specific regulatory processes, one example
is that NMFS/NOAA (Commerce) has authority and responsibility for
threatened and endangered sea turtles while they are in the ocean, while
the Fish and Wildlife Service (Interior) has authority and
responsibility for the same turtles when they come ashore to nest (and
local and state governments have authority over many of the factors that
affect sea turtles, such as beach lighting and beach nourishment).

# Legislative Implications

The immediate application of this issue to current pending legislation
in the U.S. Congress is two-fold. First, in cases of conflicting
legislative mandates regarding the same resources or environments, the
legislation should be "harmonized" to give clear policy direction to the
appropriate administrative agencies. Second, serious consideration
should be given to the recommendation of both the USCOP and POC that
comprehensive ocean policy and planning legislation be passed to
reconcile these fragmented and conflicting mandates, authorities and
responsibilities under a comprehensive policy and planning framework for
coasts and oceans. Such comprehensive legislation would include both
attention to specific mandates and agencies (such as the need for
organic legislation to establish the structure and function of NOAA,
wherever that structure and function may ultimately reside, as proposed
by both the USCOP and POC), and to authority and responsibility for
overall ocean planning within the U.S. Exclusive Economic Zone in
legislative vehicles such as the National Ocean Policy Act proposed by
the Pew Oceans Commission. Such legislation could, for example, provide
for a comprehensive framework for zoning of the different uses of the
EEZ (see Crowder et al, 2006). The current federal Committee on Ocean
Policy, established through Executive Order and which reports to the
President through the Council on Environmental Quality, has the
potential to provide administrative and some policy coordination for
coastal and ocean issues. However, such a Committee will not be able to
address the overall integration of policy principles that could be
accomplished through comprehensive ocean legislation.

The above recommendations apply primarily to activities in the U.S. EEZ,
and between and among the U.S. federal government and the states for
activities in the EEZ. Bracketing the EEZ, however, are two needs
referred to, once again, by both the USCOP and the POC. These are: 1)
The need for an ecosystem-based, regional policy and management system
for environments and resources that connect the watersheds and EEZ of
the U.S. and its Territories, Commonwealths and possessions together,
such as is reflected in the idea of "Regional Ocean Councils" (Nicholas
Institute, 2006) suggested by both the USCOP and the POC; and 2) the
need for better international cooperation on coastal and ocean policy
and management, such as would be reflected in the U.S. ratification of
the Law of the Sea Convention and Treaty. Even though the U.S. has
implemented virtually all of the elements of the Convention, the fact
that the U.S. has not formally ratified the Convention and Treaty is an
important omission in our necessary linkage with other countries on
coastal and ocean policy issues and processes. This fact is also noted
by both the USCOP and the POC.

**[Summary]{.underline}**

The coastal and ocean resources and environments of the U.S. will be
well-served by the advancement of the concept of "ecosystem management".
Advancing this concept should include attention to the biophysical,
human and institutional dimensions of coastal and ocean environments.
These three dimensions must be mapped onto one another to provide a
complete picture of our coastal and ocean systems, and to allow
rational, comprehensive policy and management processes to be developed,
both within the U.S. and in the international community.

**[References]{.underline}**

Cicin-Sain, B. and R. Knecht, 2000. The Future of U.S. Ocean Policy:
Choices for the New Century. Washington, D.C.: Island Press.

Crowder, L., et al, 2006. Resolving mismatches in U.S. Ocean Governance.
*Science* 313:617-18

Nicholas Institute, 2006. Pathways to Ocean Ecosystem-based Management:
Design Principles for Regional Ocean Governance in the United States.
Nicholas Institute for Environmental Policy Solutions. Durham: Duke
University.

Orbach, M., 1982. U.S. Marine Policy and the Ocean Ethos. *Marine
Technology Society* *Journal* 16:4:41-49.

Orbach, M., 2002. "Beyond the Freedom of the Seas: Ocean Policy for the
Third Millennium". Washington, D.C. National Academy Press

Pew Oceans Commission, 2003. America's Living Oceans: Charting a Course
for Sea Change. Washington, D.C.: Pew Oceans Commission.

Revelle, R., 1969. The Ocean. *Scientific American* Special Issue 221:3,
September, 1969, pp 55-65.

U.S. Commission on Ocean Policy, 2004. An Ocean Blueprint for the 21^st^
Century. Washington, D.C.: U.S. Commission on Ocean Policy.

Wenk, E., 1972. The Politics of the Ocean. Seattle, WA: University of
Washington Press