OCEAN AND COASTALECOSYSTEM-BASEDMANAGEMENT
IMPLEMENTATION HANDBOOK2009
E N V I R O N M E N TA L L A W I N S T I T U T E

Ocean and Coastal Ecosystem-BasedManagement:
Implementation Handbook

Environmental Law Institute2009

OCEBM Handbook

ACKNOWLEDGEMENTS
This Handbook was prepared by the Environmental Law Institute, with funding from the David and Lucile Packard
Foundation. Primary authors include Kathryn Mengerink, Adam Schempp, and Jay Austin. Jordan Diamond,
Annie Brock, Rebecca Gruby, and Ross Wolfarth provided additional research and drafting support. We gratefully
acknowledge the advice, information, and feedback provided by the participants in our EBM Working Groups
including the following: Sarah Abramson (Heal the Bay), Anders Andren (Wisconsin Sea Grant), Katherine Andrews(NOAA), Katie Arkema (Natural Capital Project), Drew Bohan (Ocean Protection Council), Priscilla Brooks(Conservation Law Foundation), Laura Cantral (Meridian Institute), William Eichbaum (World Wildlife Fund),Chad English (Communication Partnership for Science and the Sea (COMPASS)), Erica Fleishman (National
Center for Ecological Analysis and Synthesis (NCEAS)), Kristen Fletcher (Coastal States Organization), Morgan
Gopnik (Consultant), Benjamin Halpern (NCEAS), Carrie Kappel (NCEAS), Jessica Landman (World WildlifeFund), Rob Masonis (American Rivers), Richard McLaughlin (Texas A&M University, Corpus Christi), Karen
McLeod (COMPASS), Peyton Robertson (NOAA), Bernardo Oscar Broitman Rojas (NCEAS), Andrew Rosenberg(University of New Hampshire), Mary Ruckelshaus (NOAA), Janis Searles (The Ocean Conservancy), Peter Shelley(Conservation Law Foundation), and Dean Wendt (California State University, San Luis Obispo). We would also
like to thank the organizers of and participants at the three regional meetings ELI co-hosted:•••Managing for a Healthy Gulf of Mexico Ecosystem in partnership with Dr. Richard McLaughlin (Harte
Research Institute for Gulf of Mexico Studies), November 2007
Managing for a Healthy California Current Ecosystem in partnership with Dr. Harry N. Scheiber (Law of the
Sea Institute in the Institute for Legal Research at UC Berkeley), April 2008
Mid-Atlantic Regional Ocean Forum in partnership with Mr. Jay Odell (The Nature Conservancy), Dr. Biliana
Cicin-Sain (Gerard J. Mangone Center for Marine Policy, University of Delaware), Mr. Tony MacDonald(Urban Coast Institute, Monmouth University, New Jersey), Ms. Kristen Fletcher (Coastal States Organization),and Ms. Laura Cantral (Joint Ocean Commission Initiative), December 2008

These meetings provided diverse and informative viewpoints, experiences, and perspectives on the need for andways to implement ecosystem-based management. Many of the examples in this report were identified in the courseof discussions at the regional and working group meetings.

About ELI Publications—

ELI publishes Research Reports that present the analysis and conclusions of the policy studies ELI undertakes toimprove environmental law and policy. In addition, ELI publishes several journals and reporters — including theEnvironmental Law Reporter, The Environmental Forum, and the National Wetlands Newsletter — and books,
which contribute to education of the profession and disseminate diverse points of view and opinions to stimulatea robust and creative exchange of ideas. Those publications, which express opinions of the authors and notnecessarily those of the Institute, its Board of Directors, or funding organizations, exemplify ELI’s commitment todialogue with all sectors. ELI welcomes suggestions for article and book topics and encourages the submission ofdraft manuscripts and book proposals.
Ocean and Coastal Ecosystem-Based Management: Implementation Handbook
Copyright © 2009 Environmental Law Institute®, Washington, D.C. All rights reserved. Cover photos courtesy of
Wolcott Henry 2005/Marine Photobank.
An electronic retrievable copy (PDF file) of this report may be obtained for no cost from the Environmental Law
Institute Website www.eli.org; click on “ELI Publications,” then search for this report.
[Note: ELI Terms of Use will apply and are available on site.](Environmental Law Institute®, The Environmental Forum®, and ELR® are registered trademarks of theEnvironmental Law Institute)

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TABLE OF CONTENTSEXECUTIVE SUMMARY............................................................................................................................. iI.
INTRODUCTION: KEY COMPONENTS OF OCEAN AND COASTAL ECOSYSTEM-BASEDMANAGEMENT............................................................................................................................................1
A.
The Need for Ecosystem-Based Management. .......................................................................1
B.
Overview of Ecosystem-Based Management..........................................................................7
Summary of Methods and Handbook Contents....................................................................12C.
II.
ECOSYSTEM-BASED VISION AND PLANNING......................................................................13A.
Vision and Planning In Brief.....................................................................................................13
B.
Vision and Planning In Practice................................................................................................15
1.
Overall Planning Approaches..................................................................................................15
2.
Develop a Regional Vision......................................................................................................20
3.
Conduct Threats Analysis.......................................................................................................24
4.
Identify Concrete Goals and Measurable Indicators...............................................................25
5.
Develop an Implementation Plan...........................................................................................31
III.
ECOSYSTEM SCIENCE AND INFORMATION..........................................................................36
A.
Science and Information in Brief...............................................................................................36
B.
Science and Information in Practice. ........................................................................................37
1.
Incorporate Scientific Decision-Making Throughout the EBM Program...............................37
2.
Use Available Data to Inform Management Decisions...........................................................42
3.
Collect New Data to Inform Management Decisions.............................................................49
4.
Share Information Across Jurisdictions and Sectors...............................................................55
IV.
ACCOUNTABILITY, & ADAPTIVE MANAGEMENT...............................................................60
A.
Accountability and Adaptive Management in Brief.................................................................60
B.
Accountability and Adaptive Management in Practice...........................................................63
1.
Governance Structure..............................................................................................................632.
Planning Requirements...........................................................................................................73
3.
Implementation Approaches...................................................................................................76V.
CUMULATIVE IMPACTS..............................................................................................................80
A.
Cumulative Impacts In Brief. .....................................................................................................80
B.
Cumulative Impacts In Practice.................................................................................................84
1.
Preservation by Limiting or Prohibiting Human Use.............................................................84
2.
Allowing Sustainable Human Use..........................................................................................91
3.
Restoring Ecosystems after Degradation..............................................................................108
VI.
TRADEOFFS.................................................................................................................................113
A.
Tradeoffs In Brief....................................................................................................................113
B.
Tradeoffs In Practice. .............................................................................................................116
1.
Value Societal, Economic, and Ecosystem Benefits and Harms...........................................116
2.
Make Explicit Tradeoffs........................................................................................................120
3.
Resolve Disputes...................................................................................................................127
VII.
CONCLUSIONS: MAJOR GAPS AND BEST OPPORTUNITIES.............................................128
APPENDIX A: Summary of Options and Examples..................................................................................131
APPENDIX B: Glossary of Institutions.....................................................................................................141

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EXECUTIVE SUMMARY
The Environmental Law Institute (ELI) produced this Handbook to identify successful
approaches to implementing marine ecosystem-based management (EBM), describe theirlimitations, and highlight opportunities to apply them in the future. There is no single perfect
example of EBM implementation. Therefore, this Handbook provides a spectrum of examples
that take steps toward EBM, all of which have their strengths and weaknesses. It also describes
new ideas about how to achieve success with EBM implementation that may not yet exist inpractice. The Handbook is designed to share a variety of approaches that may be useful indifferent settings depending upon regional needs and opportunities.
In an ideal world, robust scientific information would inform the development of a common
regional vision and plan for a healthy and resilient ocean and coastal ecosystem. The visionand plan would set clear goals for maintaining the full suite of ecosystem services, while
taking into consideration social, economic, and environmental needs. Mechanisms would
be in place to monitor efforts, determine success, and revise activities based on review of the
program. Resource managers, planners, and decision-makers would use the plan as the basis forminimizing cumulative impacts that occur over time, across the ecosystem, and across sectors.
The plan also would serve as the basis for making tradeoffs within and across sectors. And at allstages, the process would be transparent and participatory.
Rather than cover all the multiple aspects of EBM, we focused on five specific challenges
to EBM implementation and governance that arose repeatedly in the course of our research,
interviews, and working group meetings. These are: (1) developing an ecosystem-based visionand plan; (2) incorporating ecosystem science and information into management decisions; (3)creating accountability and adaptive management for executing ecosystem plans; (4) addressing
cumulative ecosystem impacts within and across management sectors; and (5) making tradeoffs
among competing and/or conflicting ocean uses. Each is given its own Chapter in the Handbook,and summarized in this section.

ECOSYSTEM-BASED VISION AND PLANNING
Central to ecosystem-based management is the need to develop a common vision of a healthy
and resilient marine environment that considers the ecosystem, society, and the economy; aswell as a plan of action to achieve that vision. To be EBM-focused, the regional vision should
consider the needs of the ecosystem, society, and the economy, and strive to maintain the fullsuite of ecosystem services upon which humans rely. From such a vision, the regional actors
should collaboratively develop an implementation plan that prioritizes actions and has specific,

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tangible, and measurable objectives. The vision and implementation plan set the stage for aneffective adaptive management program.
Obstacles that may prevent development and implementation of a truly ecosystem-based plan
include: lack of capacity to achieve objectives; agency mandates or primary objectives thatprevent EBM implementation; and lack of common objectives across a region.
Chapter II considers the following procedural aspects to planning and specific approaches todeveloping plans:(1) Overall planning approaches.
(2) Develop a regional vision.
(3) Conduct threats analysis.
(4) Identify concrete goals and measurable indicators.
(5) Develop an implementation plan.
An EBM vision should be the result of agreed common goals and strategies of the region andshould help guide the overall program toward an ecosystem-based approach. EBM is a process
to achieve a certain result; therefore, EBM should not be undertaken simply for the sake of doing
EBM. Instead it should target specific threats to ecosystem health and resilience.
In practice, the drivers for program development often are resource degradation and the needto restore ecosystem damage. In some places, however, state governments are working toward
maintaining or enhancing ocean ecosystems and have passed laws to help plan for and manage
new and expanding ocean uses. In both situations, achieving EBM is not the goal. Rather, thegoal is to use this science-based collaborative approach to achieve the goals of maintaining,enhancing, or restoring ecosystem function in the face of existing and new ocean uses.
The planning process must include the appropriate regional institutions and stakeholders in orderto develop a legitimate process, including non-traditional participants whose activities affect theocean such as the transportation sector and the agricultural sector. To create an effective planthat is designed to support healthy and resilient ecosystems, a strategic and adaptive planning
process is essential.
A threats assessment should help guide the development of concrete goals and measurable
indicators. Expressing specific indicators to measure success enables adaptive management
and creates a mechanism for the EBM program and other stakeholders to evaluate whether the
program is accomplishing its goals. To be effective, indicators should inform management action
and be linked to the overall ecosystem goals.
Implementation plans can drive collective action, and with the right elements can support
adaptive management processes and accountable governance systems. In addition to sharing aii

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vision, identifying concrete goals and measurable indicators for success, common plan elements
include: designation of lead agencies for a description of the legal authority under which action
can be taken or a memorandum of understanding to delineate partnerships; and implementation
cost estimates and funding sources.

ECOSYSTEM SCIENCE AND INFORMATION
Science-based natural resource management often considers species- or sector-specificinformation but falls short of achieving a comprehensive understanding of the myriad
components that interact to form a healthy ecosystem. Furthermore, even the most basic
information about physical structure, physical processes, and ecology is limited at best. EBM
programs can and do take a variety of approaches toward accessing or developing the dataneeded to make effective decisions. Potential ways to further develop and utilize ecosystemscience in decision-making include the following approaches:(1) Incorporate scientific decision-making throughout the EBM program.
(2) Use available data to inform management decisions.
(3) Collect new data to inform management decisions.
(4) Share information across sectors and jurisdictions.
Ecosystem-based management requires an understanding of ecosystem structure, function
and processes in order to make the appropriate management decisions. Thus, science-based
decision-making is an essential aspect of EBM. Existing scientific committees or structures may
already be poised to serve as advisors to a regional ocean governance program. In the absenceof existing bodies, a new science committee could serve as an important link to the scientificcommunity and support science-based decision-making.
While a great deal of data is available, it may not be effectively connected to the decisionmaking system. Especially important is the need to take advantage of long-term data sets andcontinued monitoring efforts as a way to understand baselines and evaluate management success.
Also, creating digital maps of social and ecological information is an increasingly important way
to communicate EBM data to managers, decision-makers, and stakeholders.
New data and existing data should inform management decisions. Ways to enhance datacollection and integration with management including research planning based on EBM
needs, establishing mechanisms to transfer new information to managers, and identifying legal
mechanisms to enhance data collection by resource users.
One of the major challenges with regional ecosystem science is the lack of a common sourceof information. Also, without proper communication and collaboration, agencies may not fully
utilize data from other agencies or academic institutions or may conduct redundant research.
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ACCOUNTABILITY AND ADAPTIVE MANAGEMENT
Ecosystem-based management relies on mechanisms to ensure that institutions participate in
EBM and are held accountable to the regional programs. Also, regional programs must be held
accountable to higher levels of government and ultimately to the communities they represent.
Closely tied to accountability is the need to have a management system that adapts to new
information and changing conditions. Thus, this chapter addresses both accountability andadaptive management together.
Several implementation challenges can be linked to the need for better accountability. Institutions
often lack a clear legal mandate or the authority to achieve EBM objectives. Sector-based
laws, regulations, and policies may conflict with regional objectives. Finally, an absence of
meaningful reporting mechanisms can prevent transparency and accountability. Accountability
approaches that help overcome these challenges include:(1) Governance structure(2) Planning requirements(3) Implementation approaches
Implementing EBM plans once they are established is one of the chief challenges seen in
many regions. Governance programs can create processes and structures to help achieve
accountability. Key approaches include developing appropriate mandates or founding
documents, establishing an adaptive management process, and ensuring meaningful public
participation. Also, properly developed plans help achieve accountability and support adaptive
management.

CUMULATIVE IMPACTS
More than a restructured governance system, EBM is a management approach that seeks tominimize human impacts to the marine environment that result in loss of ecosystem services.
Effective management of the marine environment should consider cumulative impacts and makedecisions that minimize these impacts so that marine ecosystems remain healthy and resilient.
One way that government agencies manage ecosystems is by managing the activities of thepeople who use them. Several approaches are possible. Some activities may take place in theabsence of any regulatory framework. More often, government agencies regulate human uses
through the use of a permitting system. In other cases, laws and policies may be designed toencourage certain behaviors or activities through incentive-based programs. And some locations
may be completely protected and off-limit to all human uses, while certain activities may becompletely prohibited no matter the location.
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This Chapter considers the following three broad mechanisms to address cumulative impacts:(1) Preservation by Limiting or Prohibiting Human Use(2) Allowing Sustainable Human Use(3) Restoring Ecosystems after Degradation
Preservation by withholding areas from human use is a traditional means of minimizing humanimpact. This includes, for example, establishment of federal or state protected areas or the useof private mechanisms such as easements or land acquisition to protect regions. However, thisapproach has limited utility since most of the ocean and coastal environment is and likely will
not be designated for preservation. In an EBM context, preservation approaches can be one way
among many to reduce human impact.
Most ocean and coastal areas are available for human development or use to some extent. Thus,a key to effective minimization of cumulative impacts is the development or application of
approaches that allow sustainable use. Challenges to this approach include a lack of scientific
data and models that can properly support cumulative impact analysis and decision-making, andan existing legal and regulatory framework that reacts to use and development on a case-by-caseand/or sector-by-sector basis.
While preventing degradation is a key need, the reality is that many important ocean and coastal
ecosystems or parts of these ecosystems are already degraded. A review of existing regional
ocean governance programs, in fact, reveals programs that are largely focused on restoration.

TRADEOFFS
Closely linked to the need to reduce cumulative impacts is the need to make explicit tradeoffs
among potentially competing or conflicting ocean and coastal uses. Done correctly, creating asystem to make tradeoffs should lead to management that (1) addresses cross-sector ecosystem
impacts; (2) is fair; and (3) enables the identification and implementation of win-win scenarios.
There are few existing regional ocean management programs that make proactive tradeoffs
among potentially competing and/or conflicting uses.
This section focuses on the identification and use of proactive tradeoff approaches that could beincorporated into EBM systems:(1) Value Societal, Economic, and Ecosystem Benefits and Harms(2) Make Explicit Tradeoffs(3) Resolve Disputes

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A primary goal of EBM is to conserve ecosystem services—benefits provided to humans by the
ecosystem, including provisioning, regulating, cultural, and supporting services. Developing
mechanisms to value ecosystem services through quantitative scientific processes, as well as
public processes, can help lay the groundwork for making explicit tradeoffs among potentiallycompeting and/or conflicting uses.
In most situations, society makes inadvertent or implicit tradeoffs among ocean and coastal uses
without specifically considering the benefits and harms of all foreseeable uses. This can lead toloss of ecosystem services and an unfair process of establishing access and rights to resources
A system of tradeoffs can help minimize later disputes. However, as EBM plans are
implemented and more information is learned, disputes will likely arise.

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I. INTRODUCTION: KEY COMPONENTS
OF OCEAN AND COASTAL ECOSYSTEMBASED MANAGEMENT“Ecosystem-based management is an integrated approach to management that considers
entire ecosystems, including humans. The goal of ecosystem-based management is tomaintain an ecosystem in a healthy, productive and resilient condition so that it can
provide the services humans want and need. Ecosystem-based management differs fromcurrent approaches that usually focus on a single species, sector, activity or concern; it
considers the cumulative impacts of different sectors.”		
--Scientific Consensus Statement on Marine Ecosystem Based Management

A. 	The Need for Ecosystem-Based Management
Human Activities and Ecosystem Challenges
In 2002, 775,000 salmon returned to California rivers to spawn. In 2008, scientists predicted
only 58,200 would return. In response to this population decline, the Pacific Fishery
Management Council announced the closure of the California salmon fishery. What is the cause?
According to a Council press release, “[m]any biologists believe a combination of human-caused
and natural factors are to blame, including freshwater in-stream water withdrawals, habitat
alterations, dam operations, construction, pollution, and changes in hatchery operations.” In
response the Council requested the development of a task force to examine all the possible
causes.
While these causes are under investigation, what is the solution? By itself, the Pacific Fishery
Management Council has one option: reduce fishing pressure. The available solution is singlesector, but the actual causes may be many. This raises two issues. First, fairness—is it fair to put
the entire burden of the resource decline on fishers when they are one among several potential
causes? And second, assuming the decline is caused or exacerbated by human activities otherthan fishing, will a reduction in fishing solve the problem or simply manage a declining stock?
The salmon collapse in California encapsulates the challenge that ecosystem-based management(EBM) strives to address—how to manage for the overall health of the ocean and coastal
 Karen McLeod et al., Scientific Consensus Statement on Marine Ecosystem-Based Management (2005), available at http://compassonline.org/?q=EBM.
 See, e.g., Anon., PFMC Meeting to Set Fisheries; Seeks Task Force on Causes for Decline, Columbia Basin Fish & Wildlife News
Bulletin, Mar. 21, 2008, at http://www.cbbulletin.com/free/266402.aspx.

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environment, considering multiple ecosystem impacts across time and space in a way that
explicitly and transparently makes tradeoffs among potentially competing uses.
Figure 1 is a map of human impacts on the marine environment, demonstrating that more than
40 percent of the world’s oceans experience major impacts from a range of human activities that
includes fishing, shipping, land-based sources of pollution, and other uses.
Figure 1. Human Impacts--Halpern et al. (2008)

Halpern et al. (2008) developed threat maps for 17 different human activities such as fishing, climatechange, and pollution across 14 different marine ecosystems. The authors combined thisinformation to develop the cumulative impact map shown here.

As a result of the human impacts on the marine environment, many marine and coastal
ecosystems no longer deliver the full suite of ecosystem services upon which humans have cometo rely. A primary goal of marine ecosystem-based management is to conserve ecosystemservices, which are the benefits provided by ecosystems. This approach to marine management
 McLeod et al., supra note 1.
 Benjamin Halpern et al, Global Map of Human Impact on Marine Ecosystems [hereinafter Global Map], 319 Science 948(2008).
 Andrew A. Rosenberg, Regional Governance and Ecosystem-Based Management of Ocean and Coastal Resources: Can We
Get There From Here? 16 Duke Envtl. L. & Pol’y F. 179 (2006), available at http://www.law.duke.edu/shell/cite.pl?16+Duke+Envtl.+L.+&+Pol%27y+F.+179#F4.
 Millennium Ecosystem Assessment, Ecosystems and Human Well-Being: Synthesis 39 (2005), available at http://www.millenniumassessment.org/documents/document.356.aspx.pdf.

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strives to preserve all ecosystem services, including those benefits that support human well-being.
The Millennium Ecosystem Assessment identifies four categories of ecosystem services:
provisioning services, regulating services, cultural services, and supporting services.
Provisioning services are the products supplied by ecosystems. Oceans and coasts offer a wide
range of food, and coastal wetlands provide fresh water. Many genetic resources, biochemicals,
and medicines also are derived from the marine environment.
Regulating services are the benefits obtained from natural regulation by ecosystem processes.
The marine environment plays an essential role in climate by acting as a sink for carbon dioxideand heat. Coastal wetlands purify water and even out water flow. Coastal ecosystems and coral
reefs protect coastal areas from natural hazards and shoreline erosion.
Cultural services are the nonmaterial benefits people gain from ecosystems. The marine
environment provides a place for recreation and ecotourism. Cultural heritage and social
relations, such as the customs and traditions of fishing communities, are often tied to coastal andocean ecosystems.
Supporting services are benefits that are necessary for the continuance of other ecosystemservices. Many photosynthetic organisms live in marine ecosystems, providing oxygen andserving as a foundation for the food chain. The marine environment and coastal wetlands
additionally maintain nutrient cycles upon which a wide range of ecosystems depend.
An example of the loss of marine ecosystem services is a study of 200 years of human impact
in the Bay of Fundy. The study reveals that 60-90 percent of wetlands have been lost; threemarine mammals were hunted to extinction; and fish stocks have been reduced substantially.
These losses translate to losses in provisioning, regulating, supporting, and cultural services once
provided by the ecosystem.
Human use of the ocean and coastal environment includes a broad range of activities that maycompete for resources and space. Figure 2 is a location map of the Neptune liquefied natural
gas terminal and pipeline, which will be completed in 2009.10 It demonstrates the legal andregulatory complexity and use designations in this multi-use environment. Missing from thismap, which adds to the complexity, are human activities such as fishing and whale watching,designated dredge disposal sites, and the many habitats and species that are found in this busy
region.

 Id at 40.
  Id. at 40.
  Heike K. Lotze and Inka Milewski, Two Centuries of Multiple Human Impacts and Successive Changes in a North Atlantic
Food Web, 14 Ecological Applications 1428 (2004).
10 Ecology & Environment, Inc., Location Map of Neptune Subsea Pipeline and Off-Shore LNG Terminal (to be operational in2009) (on file with authors; reprinted with permission from Suez LNG NA LLC and Ecology and Environment Inc).

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Figure 2. Location Map of Neptune Subsea Pipeline and Off-Shore LNG Terminal© Ecology & Environment, Inc. GIS Department Project #L:\Tallahassee\Neptune\maps\website_maps\ProjectArea.mxd 07/11/08

Beverly

BEVERLEY
MANCHESTER

North Shore
Ocean Sanctuary
Stellwagen Bank
National Marine
Sanctuary

Peabody
Salem

SALEM

Neptune Northern
Pipeline RouteMarblehead

Neptune Northern Buoy
Swampscott

Lynn

MARBLEHEAD

South Essex
Ocean Sanctuary
Neptune Southern Buoy

Wate
rs
Stat eFederal/State Waters Boundary
Jurisdictional Boundary
Stellwagen Bank Sanctuary
North Shore Ocean Sanctuary
South Essex Ocean Sanctuary

Precautionary Area

ME
VT

NH

Ship

NY
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CT
NJ

l W atSM

Existing HubLine Pipeline

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ra

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ane

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a ra

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Location Map of Proposed Neptune LNG Pipeline and Terminal

Figure 2 demonstrates the legal and regulatory complexity of the multi-use environment surrounding
Boston Harbor. Ocean activities include fishing, whale watching, shipping, dredge operations, and LNG
transport. Area designations including shipping lanes and state and federal sanctuaries. Local, state,
and federal jurisdictions are noted.

Governance Challenges
The current system of governance makes it extraordinarily difficult to effectively manage oceanand coastal ecosystems for sustainable use. First, management and regulation occurs in sectorbased silos (Figure 3A). This Handbook considers six sectors: (1) land use; (2) habitat; (3) water
quality and quantity; (4) human health; (5) living resources; and (6) ocean industries. This is justone of many possible ways to divide the different ocean uses that occur every day.
Within each sector, multiple activities cause impacts and are managed by multiple laws andinstitutions (Figure 3B). While often considered in isolation, these various sectors interact toaffect the same environments and also are affected by the laws, policies, and management ofdifferent sectors (Figure 3A).

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In addition, management and regulation occur across different levels of government, and eachmanaging or regulatory institution must consider the multiple objectives of society, environment,
and economy in the decision-making process (Figure 3C). This complex system of government
makes it challenging to maintain ecosystem health and resilience in order to maximize the fullsuite of ecosystem services provided by ocean and coastal environments.
Figure 3. Management Silos and Complex Systems
A. Management and regulatorycomplexity: multiple sectors withmultiple interactions acrosssectors are managed in theabsence of common objectives
Land U se
W aterQ uality&
Q uantity

H abitatH um an
H ealthLivingR esource

B. In each sector, multiple activities
cause impacts & aremanaged/regulated by multiple laws
& institutions—e.g., water quality

Human Activity
D re d g e an d fill o p e ra tion s
D ischa rg e o f in d ustria l
w a steD e ve lo p m e n t
Dam s
A ccid e n ta l disch a rg e s
U rb a n ru no ff
A g ricultu ral run o ff
SewageD ive rsio ns

Water Quality
Impacts
pH
S e d im e n t lo a d
E ro sion
Th e rm a l ch a ng e s
E u tro p hicatio n
To xic p o lluta n ts

O ceanIndustries

C. Management and regulation
occurs across levels ofgovernment and must consider
multiple objectives.
LOCAL

Environment

Federal Laws to Address Activities and Impacts
C le a n W ate r A ct
O il P o llu tion A ct
F e d e ral P o w e r A ct
C o m p reh e nsive E n viron m en tal R e spo n se ,C o m p e nsa tio n a n d L iab ility A ct
C le a n A ir A ct
N a tio n al E n viron m en tal P o licy A ct
C o a stal Z on e M a n a g em e n t A ct

Society

FEDERAL

Federal Institutions Implementing Laws
E n viro n m en tal P ro tectio n A gen cy
U .S . C o a st G u a rd
F e d e ral E n e rg y R e g u la to ry C om m issio n
N a tio n al O cea n ic an d A tm o sph e ric A d m in istra tio n
U .S . A rm y C o rp s o f E ng ine e rs

STATE
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In addition to complex governance and the lack of coordination and cooperation among
management and regulatory institutions, there are many legal, regulatory, and implementation
gaps that inhibit our ability to comprehensively manage ocean and coastal environments. Table 1
provides an example of common gaps within a single sector—water quality management.
Table 1. Legal and Regulatory Gaps in Water Quality Management
1. States/EPA set water body standards (designation and criteria to support designation)
GAP: Standards not necessarily based on goal of maintaining a full suite of ecosystem services.
GAP: Designations may be single-scope in objective (however, some are based on a measure ofecosystem function)
2. States/EPA determine if water bodies are impaired.
GAP: Impairment determined on a pollutant-by-pollutant basis, not overall ecosystem health.
GAP: Water bodies are often divided into segments and evaluated on a segment-by-segment basis, which
does not effectively consider linkages throughout the watershed.
3. If impaired states/EPA develop a report of the impairment and a plan to address impairment(called a total maximum daily load (TMDL)).
GAP: A plan is only created after a waterbody is impaired or threatened with impairment, not as aproactive approach to maintain a healthy ecosystem.
GAP: There are few legal requirements to implement the plan.
4. States/EPA regulate pollutant discharge from point sources.
GAP: The Clean Water Act only requires permits for point sources of pollution, not non-point sources.
This leaves out major pollutant sources including, for example, agriculture, runoff, and air pollution.

Many legal and regulatory gaps and conflicts exist among management sectors and institutions.
One of the biggest gaps is the inability to minimize cross-sector cumulative impacts and to maketradeoffs among the uses that impact the ocean and coastal ecosystems in a comprehensive andforward-looking way. Because there are no mechanisms to address these impacts collectively
and make explicit tradeoffs, the ability to achieve sustainable use is limited.
One of the best examples of regulatory overlap is related to hydrokinetic energy development on
the ocean. Under the Energy Policy Act of 2005, the Department of the Interior has the authority

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to regulate alternative energy on the Outer Continental Shelf (beyond 3 miles offshore).11 The
Federal Energy Regulatory Commission (FERC) claims authority to regulate hydrokinetic energy(wave, tidal, and current energy) under the Federal Power Act in state and federal waters. This
conflict has been minimized by a recent memorandum of understanding between the FERC and
Department of the Interior, which gives FERC licensing authority and the Department of theInterior leasing authority.12

B.

Overview of Ecosystem-Based Management

Ecosystem-based management is an approach that focuses on managing the many humanactivities that impact the ocean and coastal environment to maintain the health and resilience ofthe ecosystem and the full suite of services it provides. This means properly managing humanactivities across time, space, and sectors to minimize the cumulative impacts that degrade
ecosystem health and function.
As Figure 4 illustrates, two major governance questions emerge: (1) what management structuresand processes will help minimize adverse impacts while allowing sustainable human use; and (2)what substantive requirements will help minimize adverse impacts while allowing sustainablehuman use?
An EBM approach to these questions would consider the inter-relationships of the environment,
society, and economy in formulating solutions. Its structure and processes are typicallyenvisioned as regional, collaborative, science-based, plan-based, adaptive, and precautionary
with robust mechanisms to create accountability, make tradeoffs, and minimize cumulative
impacts. This Handbook further considers the legal challenges for this including how to set
impact thresholds, link funding to plan implementation, link the regulatory system to ecosystem
plans, and create enforceable laws and policies based on ecosystem plans.

11 Federal waters begin 9 miles offshore for Texas and the Gulf Coast of Florida.
12 Memorandum of Understanding between the Department of the Interior and Federal Regulatory Energy Commission(2009), available at http://www.ferc.gov/legal/maj-ord-reg/mou/mou-doi.pdf.

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Figure 4. Minimizing Adverse Human Impacts and Enhancing Positive Impacts

What management structure and processes will help minimize adverse impacts whileallowing sustainable human use? What substantive requirements will help minimize
adverse impacts while allowing sustainable human use?

Primary Considerations

Environment

Society

Economy

Structures & Processes•
R egiona l•
C ollab orative•
S cience -based•
P la n-base d•
A da ptive•
P recaution ary•
A ccounta bility
m echanism s•
T radeoff m echanism s

Legal Challenges•
S et im pact thresholds•
Link funding (ince ntives,
research, restoration) to
pla n im plem entation•
Link regulatory s ystem toecos ys tem plan•
C reate enforceable la w s &policies b ased on
ecos ys tem plan

In an ideal world of EBM, robust scientific information would inform the development of acommon regional vision and plan for a healthy and resilient ocean and coastal ecosystem. The
vision and plan would set clear goals to maintain the full suite of ecosystem services, while
taking into consideration social, economic, and environmental needs. Mechanisms would bein place to monitor efforts, determine success, and amend activities based on review of the
program. Resource managers, planners, and decision-makers would use the plan as the basis forminimizing cumulative impacts that occur over time, across the ecosystem, and across sectors.
The plan also would serve as the basis for making tradeoffs within and across sectors. And at allstages, the process would be transparent and participatory.
This Handbook focuses on the elements of EBM that relate directly to governance—specificallysetting goals and priorities, some elements of monitoring and assessment, and making andimplementing EBM decisions (Figure 5). Regional ocean governance can provide a framework
to integrate of ocean and coastal management across jurisdictions and sectors to achieve ahealthy and resilient marine ecosystem.13 In practice, regional ocean governance bodies vary intheir capacity—ranging from informational and advisory to having full regulatory and decisionmaking authority.

13  See, e.g., Joint Ocean Commission Initiative & Monterey Bay Aquarium, An Agenda for Action: Moving Regional Ocean Governance from
Theory to Practice (2007); see also Ingrid Nugent & Tim Profeta, Pathway to Ocean Ecosystem-Based Management: Design Principles for
Regional Ocean Governance in the United States 3 (2006), available at http://www.nicholas.duke.edu/institute/oceanesm.pdf.

Environmental Law InstituteOCEBM Handbook

This Handbook presents a range of regional ocean governance approaches. It should also be
noted that regional ocean governance is not the same thing as EBM and can exist in the absenceof an EBM program. For example, a regional ocean governance program could aim to achievea specific objective such as short-term economic growth. However, regional ocean governanceis a core element of EBM implementation in practice. To be considered EBM as envisioned bycurrent practitioners, the program should be based on rigorous ecosystem science, include robust
stakeholder participation, and ensure that the full suite of ecosystem services remains intact
in a sustainably used ecosystem. It is a system that involves tradeoffs among ocean uses andminimization of cumulative impacts. It is necessarily adaptive.
Figure 5. EBM Program—Organizational & Structural Elements

What organizational structure and process can be used tomake and implement EBM decisions?
In fo rm a tio n a l, a d viso ry a n d/o r
d e cisio n -m a kin g au tho rity

Regional
Ocean
Governance

CROSS-CUTTINGELEMENTS• R igorous

ecos ys tem
science• R obust

D evelop visionand plan toachieve goal ofm aintaining
ecosystem
services uponw hich hum ans rely

Implementation Systemstak eholder
participation• M echan ism s tocreateaccounta bility,
adap t, m ak e
trade offs, andm inim ize
cum ulative
im pacts

Institution A

Institution B

Institution C…e t cPositive ecosystem response

Im p le m en ta tio n sh ou ld
b e co o rd in a ted a nd
a p p ro ache s in clu d e ,e .g ., in ce n tives, g ra n ts,
re se a rch , e d uca tio no u tre ach , a n d
le g al/re gu la to ry a ctio ns

In existing EBM-like efforts, regional ocean governance bodies are the central organizing bodies thatallow stakeholders, agencies, and other institutions to share information, develop ecosystem visions
and plans, and develop strategies to implement the plans. This figure shows common structural andorganizational elements. The following chapters build upon this diagram to demonstrate information
flows and key processes essential to EBM implementation success.

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In this Handbook, “region” is meant to connote the full spectrum of program sizes, not simply
multi-state efforts (Figure 6). Existing U.S. regional ocean governance approaches include
large-scale multi-state efforts such as the Chesapeake Bay Program, the West Coast Governors
Agreement, and the Gulf of Mexico Alliance; single-state approaches such as the Puget Sound
Partnership, the California Ocean Protection Council, and the Massachusetts Ocean Partnership;and small scale programs like the San Luis Obispo Science and Ecosystem Alliance, the San
Juan Islands program, and the Elkhorn Slough EBM program. All of these programs focus on
managing the needs of development and resource use with sustainability and conservation. Theyand other programs, along with sector-specific ecosystem-approaches provide the basis of theinformation contained in this Handbook.
Figure 6. The Size of the Governance Region Depends on Program Scale—Examples
L o cal: M o rro B a y, C a lifo rn ia

S u b -S ta te: P u ge t S o un d , W ash in g to n

S ta te : M a ssach use tts

M u lti-S ta te : C h esa pe a ke B a yMorro Bay map from EPA, Surf Your Watershed. Puget Sound map from the Puget Sound Partnership, highlighting
one of seven action areas (see http://www.psp.wa.gov/aa_whidbey.php). Massachusetts map of the nearshore ocean
management planning area boundary is from the Massachusetts Office of Coastal Zone Management (http://www.
mass.gov/czm/oceanmanagement/index.htm). Chesapeake Bay Map from Phillips et al., Discharge, Nitrate Load,and Residence Time of Ground Water in the Chesapeake Bay Watershed, (http://md.water.usgs.gov/publications/fs150-99/html/index.htm).

While regional ocean governance programs explicitly strive for ecosystem health and sustainable
use, they often fall short of their stated objectives. This can happen for a variety of reasons, including
setting overly ambitious goals, lack of leadership to achieve objectives, inadequate funding, lack of alegal mandate to force implementation, and conflicting priorities or mandates, among others.
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In part, the ability of regional ocean governance programs to achieve their goals depends upon
the type of authority granted to the programs. In some instances, soft-law approaches likememorandums of understanding or letters of agreement form the basis of the program, leaving it
up to existing sector-specific and environmental laws to create the legal and regulatory basis foraction.14 In other instances, regional programs are established under state law, by compact, orby treaty, and their authority is delineated in the founding legal document.15 As a result, regional
programs’ abilities range from advisory to regulatory.16
Because of the various approaches to establishing regional ocean governance, this Handbook
considers examples from all types and identifies advantages and limitations of each. It focuses
on five key governance components of effective ecosystem-based management:(1) Ecosystem-based plans to achieve conservation and sustainability objectives and guide
governance decisions(2) Scientific information to inform ecosystem-based plans and decisions(3) Accountability of activities to existing ecosystem-based plans and programs(4) Ability to address cumulative impacts over time, over space, and across sectors(5) Ability to make tradeoffs within and across sectors
While existing legal authority may not enable full implementation of these EBM objectives,
this Handbook identifies existing approaches to achieve ecosystem management. It includes
examination of laws, regulations, and policies that can be used to take incremental steps in the
direction of EBM, even absent a new legislative mandate. It also notes the limitations of theselaws and institutional approaches for achieving EBM objectives and identifies key gaps that need
to be filled in order to achieve a robust EBM framework at the state, regional, or national level.
The Handbook is divided into five Chapters, corresponding to the five governance challenges.
Chapter II, Ecosystem Planning, identifies key science-based planning mechanisms andexplores the ability to expand science-based planning across jurisdictions and sectors. Chapter
III, Ecosystem Information, explores the legal and institutional options for science-based
management through sector-specific laws, regional programs, and cross-cutting laws andpolicies. Chapter IV, Accountability, examines mechanisms for holding institutions accountableto ecosystem plans once they have been established. Chapter V, Cumulative Impacts, explores
existing mechanisms to minimize cumulative impacts across time, space, and sectors. Finally,
Chapter VI, Tradeoffs, builds on the previous chapters and explores how existing laws or softlaw approaches can help decision-makers balance competing ocean uses in practice.

14 Examples include West Coast Governors Agreement, Gulf of Mexico Alliance, and Chesapeake Bay Program.
15 Examples include California Ocean Protection Council, Puget Sound Partnership, International Joint Commission, Delaware
River Compact, North Carolina Coastal Habitat Protection Plan, and Massachusetts Ocean Management Initiative.
16 Environmental Law Institute [hereinafter ELI], Ecosystem-Based Management: Laws and Institutions (2007) [hereinafter EBM: Laws andInstitutions], available at http://www.eli.org.

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OCEBM Handbook

C. 	Summary of Methods and Handbook Contents
ELI developed this Handbook to share different approaches to U.S. ocean and coastal EBM
implementation,17 focusing particularly on issues related to governance. The Handbook provides
a spectrum of examples that take steps toward EBM. There are strengths and weaknesses in all
approaches presented. The Handbook is not meant to provide the one best approach to achieving
EBM. Instead, it is meant to provide examples that may be useful in different settings depending
upon regional needs and implementation opportunities.
In each of the five main Chapters, there is a discussion of the general concept and its relationshipto EBM, with a visual model outlining the contents of the Chapter. Each Chapter provides asuite of potential approaches for addressing the particular challenge, each of which is illustrated
with concrete examples from existing regional ocean governance programs, as well as otherregional governance programs and U.S. laws and policies. The potential approaches are meant todemonstrate how to achieve effective EBM governance.
The examples provided in this Handbook are largely drawn from state-based or multi-state
approaches, and, in a few instances, small-scale EBM programs. Some sector-specific examples
highlight sector-based implementation or demonstrate an EBM approach that could be applied ina broader cross-sector setting.
Many of the approaches in this Handbook represent examples of good governance that could anddo apply in much broader contexts. For example, in the chapter focused on cumulative impacts,
many examples stem from laws and policies beyond marine EBM. However, these general“good governance” approaches may be fundamental to the successful implementation of EBM,
and are sometimes lacking in existing programs.
While most Handbook examples are documented in published or online materials, many of theideas and some of the most insightful examples derive from the meetings and interviews that
ELI has conducted and participated in during this project. In all, ELI co-hosted three regional
stakeholder meetings with dozens of participants at each meeting. We conducted dozens
of interviews to better understand the particular successes and challenges of existing EBM
programs. ELI staff also participated in several EBM conferences and broader ocean and coastal
meetings. Finally, this effort relied heavily on the expertise of ELI’s EBM Working Group,
which met three times over a two-year period. The Working Group provided a wealth of realworld experience and examples, which helped the authors conceptualize EBM governance andthink critically about appropriate work products.

17 With this project, ELI specifically focused on U.S. ocean governance. We acknowledge that there is a wealth of examples
from other developed and developing regions of the world, and that the approaches that are most useful in the U.S. may not workin other regions.

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II. ECOSYSTEM-BASED VISION AND
PLANNING
A. 	Vision and Planning In Brief
Central to ecosystem-based management is the need to develop a common vision of a healthy
and resilient marine environment that considers the ecosystem, society, and the economy; and aplan of action to achieve that vision (Figure 7).
Figure 7: EBM Vision and Plan
COMMON ECOSYSTEM PLAN ELEMENTS(1) R egiona l vision that consid ers ecos ystem , social an d econom ic needs.
(2) T hreats to achieving tha t vision.
(3) K e y priorities a nd spec ific objectives(4) Im plem entatio n p la n includ ing specific task s, lead age nc y, leg al auth ority, and co st.

POTENTIAL PARTICIPANTS
Government: Local, S ta te, F edera l
Stakeholders: P rivate S ector, S ocia lO rganizatio ns , E n vironm ental O rga nizatio ns
Regional
Ocean
Governance

ELEMENTS• science• stakeholders• accountability,

adaptation,
trade offs, andcum ulative
im pacts

D e ve lo p vision a n dplan to a ch ie vego a l of m a in ta in in gecosystem
services up o n
w h ich h u m an s re ly.

Implementation System

Institution A

Institution B

Institution C…etc

Positive ecosystem response

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OCEBM Handbook

To be EBM-focused, the regional vision should consider the needs of the ecosystem, society,and the economy. It should strive to maintain the full suite of ecosystem services upon whichhumans rely. From this vision, the region should collaboratively develop an implementation planthat prioritizes actions and has specific, tangible, and measurable objectives.
Several obstacles may prevent the development and implementation of a truly ecosystem-based
plan. Many existing plans are not fully implemented due to lack of funding or lack of capacity
to achieve objectives. From a legal and regulatory perspective, agency mandates or primaryobjectives may prevent the implementation of an ecosystem-based plan at the sector level. This
could be exacerbated by the need to target limited resources toward accomplishing an agency’s
primary objectives. Lack of common interests across a region could limit the development andimplementation of a comprehensive ecosystem-based plan. Several steps that can be taken todevelop an implementation plan are discussed in this section.
Before delving into specific plan elements, this Chapter considers the procedural aspectsof planning—namely the mechanisms and approaches used to develop the plan. Is plandevelopment a public process or is it an internal process? Is it a plan based on consensus or is it
a collection of different management strategies and ideas? Who participates in planning? Thissection first examines:(1) Overall planning approaches.
•••

Consider drivers for program development.
Include appropriate institutions and stakeholders.
Use a strategic and adaptive process.

In addition to overall approaches, this chapter describes some common elements of ecosystembased plans for the marine environment in more detail, including approaches that:(2) Develop a regional vision.
••Develop a vision that considers ecosystem, social, and economic needs.
Include specific target date to achieve overall vision.

(3) Conduct threats analysis.
•

Describe specific threats and impacts that the regional plan and program will address.

(4) Identify concrete goals and measurable indicators.
•

14

Use ecosystem assessments and threats analysis to inform development of concretegoals and measurable indicators.

Environmental Law InstituteOCEBM Handbook••

While working within a comprehensive EBM approach, keep concrete goals focusedon key priorities.
Include specific indicators to measure success.

(5) Develop an implementation plan.
•••

Designate a lead agency.
Identify the legal authority to act.
Estimate implementation cost, funding sources, and cost of inaction.

B. 	Vision and Planning In Practice1.

Overall Planning Approaches

1.1. Consider drivers for program development.
Rationale: Many interviewees and meeting participants have commented that EBM should
respond to a specific need. In practice, the drivers for program development are often resource
degradation and the need to restore ecosystem damage. In some places, however, state
governments are working toward maintaining or enhancing ocean ecosystems and have passed
laws to help plan for and manage new and expanding ocean uses. In both situations, achieving
EBM is not a goal in itself. The goal is to use this science-based collaborative approach toachieve the objectives of maintaining, enhancing, or restoring ecosystem function in the face ofexisting and new ocean uses.
Example: Degraded Ecosystems—Chesapeake Bay Program and Puget Sound Partnership
In 1979, Congress funded $27 million worth of research focused on understanding Chesapeake
Bay degradation. Established in 1983, the Chesapeake Bay Program responded to the scientificfindings of a five-year study with the creation of the first regional agreement for the Bay.18 In
the 1983 Chesapeake Bay Agreement, EPA, Maryland, Pennsylvania, Virginia, and the Districtof Columbia agreed to collaborate to restore the water quality and living resources of the Bay,

18 Chesapeake Bay Program, History of the Bay Program¸ at http://www.chesapeakebay.net/historyofcbp.
aspx?menuitem=14904.

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recognizing that the complexity of the problem required a joint solution.19 The Agreement
established an Executive Council tasked with assessing and overseeing the implementation of
coordinated plans.20
A more recent restoration-based program is the Puget Sound Partnership. Its goal is “is tomake Puget Sound healthy again, and create a roadmap for how to get it done.”21 Washington
Governor Gregoire established the first Puget Sound Partnership in 2005, tasking it to “develop
recommendations for preserving the health and ecosystem of Puget Sound, and to help educate
and enlist the public in achieving recovery of the Sound by 2020.”22 After the release of therecommendations report, the state legislature passed a law establishing a permanent Partnershipcharged with restoring the Sound by 2020.
Example: Legislative Opportunity or Mandate—California Ocean Protection Council
California lawmakers passed the California Ocean Protection Act in 2004, establishing theCalifornia Ocean Protection Council.23 The Council is tasked with coordinating state activities
related to conservation and protection of ocean resources.24 While restoration is included
among the objectives, the language of the law focuses more on forward-looking coordinated andintegrated management approaches rather than creating a management system to correct pastecosystem impacts.

19 1983 Chesapeake Bay Agreement, available at http://www.chesapeakebay.net/historyofcbp.aspx?menuitem=14904.
20 Id.
21  Puget Sound Partnership, About the Partnership, at http://www.psp.wa.gov/aboutthepartnership.php.
22 Puget Sound Partnership, Sound Health, Sound Future: Protecting and Restoring Puget Sound (2006), available at http://www.psparchives.com/publications/about_us/psi_reports/final/final/Final_wAPPx_lr.pdf.
23  Cal Pub. Res. Code § 35500 et seq. (2004).
24 § 35615(a)(1).

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1.2. Include appropriate institutions and stakeholders.
Rationale: The planning process must include the appropriate regional institutions andstakeholders in order to develop a legitimate process and create a plan that can address theimportant regional challenges by tapping the participants’ expertise and resources. The specificinstitutions and stakeholders will vary by region, but often include ocean-related natural
resource agencies, ocean-related ocean regulatory agencies, and the stakeholder they regulate.
Less often seen in practice but expressed as a need is the inclusion of less-obvious participants
whose activities affect the ocean such as the transportation sector and the agricultural sector.
Limitations to broad inclusion include the difficulty in making consensus-based decisions as thediversity and number of participants expands; the challenge of finding a site that can host a large
number of participants; and the difficulty of scheduling meetings to accommodate this large
number of participants. In practice, existing regional governance programs often create small
leading bodies with more diverse and larger subcommittees to inform the decision-making of
the leading body.25
Example: Planning with Experts and Stakeholders—Puget Sound Partnership
In the development of its 2020 Action Agenda, the Puget Sound Partnership (Partnership) took
an inclusive approach to the planning process that maximized the use of available expertise andaddressed a broad range of stakeholder input. The Partnership posed questions to scientists,
elected officials, businesses, and local communities. It held topical forums with regional
experts and implementer-focused action meetings that concentrated on specific challenges andtop priorities.26 The Partnership engaged its Science Panel and Ecosystem Coordination Board
when reviewing input received and when refining the plan. By consulting the Board and thePanel, the Partnership included the ideas of individuals from the state legislature, businesses,
environmental organizations, tribal governments, counties, cities, and port districts, stateagencies with environmental management responsibilities in Puget Sound, federal agencies withresponsibilities in Puget Sound, and scientists.
Example: Planning with Experts and Stakeholders—Massachusetts Oceans Act
In the development of its integrated ocean management plan, Massachusetts is engaging a range
of institutions and stakeholders in the planning process. While the state’s Secretary of Energy
and Environmental Affairs oversees and coordinates the planning process, the Secretary must
incorporate the input of the Ocean Advisory Commission and the Ocean Science Advisory
25 A description of the types of participants in existing regional programs can be found in ELI, EBM: LAWS AND INSTITUTIONS,
supra note 16.
26 Puget Sound Partnership, Puget Sound Action Agenda [hereinafter Partnership Action Agenda] 3 (December 2008), available at
http://www.psp.wa.gov/downloads/ACTION_AGENDA_2008/Action_Agenda.pdf (accessed January 13, 2009).

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Council.27 By consulting both the Commission and the Council, the Secretary incorporates
the ideas of individuals from the state legislature, the Office of Coastal Zone Management,
the Division of Marine Fisheries, the Department of Environmental Protection, regional
planning areas, the scientific community, and commercial fishing, environmental, and offshore
renewable energy interest groups.28 In addition, the Joint Committee on State Administration
and Regulatory Oversight and the Joint Committee on Environment, Natural Resources, andAgriculture may review the proposed ocean plan.29

1.3. Use a strategic and adaptive process.
Rationale: To design an effective plan that will achieve outcomes that support healthy andresilient ecosystems, a strategic planning process is essential. Also, it is well recognized thatplans should adapt as knowledge, conditions, and circumstances change.
Example: The Nature Conservancy Conservation Approach and 5-S Approach
The Nature Conservancy (TNC) conservation approach is a four-step cyclical process: (1) set
priorities through ecoregional planning and assessment; (2) develop strategies at multiple scales
to address priorities and threats; (3) take action; and (4) measure success.30 In specific areas,
TNC uses its “5-S Framework for Conservation Project Management.” The 5-S approach
includes: (1) systems, focal conservation targets and key ecological attributes; (2) stresses, major
types of impacts on targets and attributes; (3) source of stress, the agents causing stresses; (4)strategies, full array of actions needed to address the source of stress; and (5) success measures,the monitoring process for assessing progress toward abatement of stresses.
Example: An Analytical Framework—NOAA Integrated Ecosystem Assessment
NOAA is developing pilot Integrated Ecosystem Assessments (IEAs) in several U.S. regions.
According to its creators, “[a]n IEA is a formal synthesis and quantitative analysis of information
on relevant natural and socioeconomic factors relative to specified ecosystem management
goals.”31 The IEA process involves five considerations: (1) drivers of ecosystem change, (2)pressures on the ecosystem caused by the drivers, (3) the state of the ecosystem as a result of
27 Mass. Gen Law ch. 21A § 4C (a) (2008).
28 § 4C (a)-(d).
29 § 4C (i).
30 The Nature Conservancy, Conservation by Design: A Framework for Mission Success (2004), available at http://www.nature.org/
aboutus/howwework/files/cbd_en.pdf.
31 Phillip S. Levin, Michael J. Fogarty, Gary C. Matlock, & Marjorie Ernst, Integrated Ecosystem Assessments, NOAA Technical
Memorandum NMFS-NWFSC-92 (2008), http://www.nwfsc.noaa.gov/assets/25/6801_07302008_144647_IEA_TM92Final.pdf(includes key published examples of IEA implementation).

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the pressures, (4) the impact of the state of the ecosystem, and (5) the management response(Figure 8).32 The process should be iterative and result in management evaluation, which will
feedback and inform a new process of driver pressure state  impact  response. Includedin the IEA should be a characterization of target levels and thresholds for important ecosystemcomponents.33
Figure 8. IEA Process34

IEA Pr ocess

Dr iver -Pr essur e-State-Impact-Response(DPSIR)
DriverManagement
Evaluation

Response

Pressure

agricultural &urban runoffchangeinputs

Forecasts &Risk Assessments

exampleabundanceof LMR s

Impactcoastalnutrients

hypoxia

Ecosystem
Indicators

State

EcologicalModels
IEAs contain multiple DPSIRs

Example: Deliberations and Consensus—Chesapeake Bay Fishery Ecosystem Plan
The Chesapeake Bay Fishery Ecosystem Plan (FEP) is a sector-specific approach, but one that
could be adapted to a broader EBM context. The FEP is a consensus document developed in
response to the recommendations made by the NMFS Ecosystem Principles Advisory Panel,
which was established in response to a request from Congress.35 The plan is a product of
the Ecosystem Plan Technical Advisory Panel deliberations and consensus. NOAA and the
Chesapeake Bay Program hosted a regional workshop to formulate the strategy and guidelines
for plan development.36

32 Id.
33  Id.
34 Steven Murawski & Emily Menashes, What is an Integrated Ecosystem Assessment? (PowerPoint presentation, Mar 2007),
available at www.gulfofmaine.org/ebm/meeting2007/presentations/noaa_murawski_files/noaa_murawski.ppt.
Reprinted with permission from Steven Murawski.
35 The Chesapeake Fisheries Ecosystem Plan Technical Advisory Panel, Fisheries Ecosystem Planning for Chesapeake Bay ix, 4 (2006) [hereinafter Chesapeake Fisheries Ecosystem Plan].
36 Id. at xii.

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The developers of the plan represent the following institutions: federal institutions (NOAA
Chesapeake Bay Office, U.S. Environmental Protection Agency), multi-state institutions(Atlantic States Marine Fisheries Commission), a state institution (Maryland Department of
Natural Resources), and academic institutions (University of Maryland Center for Environmental
Science, Virginia Institute of Marine Science, Academy of Natural Sciences). Further support
came from the Chesapeake Bay Fisheries Steering Committee and several regional experts.
Example: Consensus-Based Approach—North Carolina Coastal Habitat Conservation Plan
North Carolina utilizes a consensus-based, strategic approach to developing the North Carolina
Coastal Habitat Protection Plan (CHPP). Development of the plan requires coordination among
the state agencies responsible for fisheries management, coastal zone management, and waterquality management.37 The state’s Marine Fisheries Commission creates the initial draft of the
CHPP. The chairs of the three state agencies involved in the planning process— the Marine
Fisheries Commission, the Coastal Resources Commission, and the Environmental Management
Commission— then each appoint two commission members to a review committee.38 The sixmember committee reviews and revises the draft plan based on consensus.39 Each Commission
then examines the draft, and any disagreements are resolved through the creation of a sixmember conference committee.40 The result is the development of a plan based on consensus
among the three state agencies. Through an adaptive process, the agencies review and revise the
CHPP every five years.41

2.

Develop a Regional Vision

2.1. Develop a vision that considers ecosystem, social, and economic needs.
Rationale: An EBM vision should be the result of agreed common goals and strategies of theregion including both government institutions and stakeholders. The vision should help guide theoverall program toward an ecosystem-based approach that recognizes the important intersection
between ecosystem, social, and economic needs. Expressing an explicit vision should help EBM
programs focus as they develop and implement plans.

37
38
39
40
41 

North Carolina Fisheries Reform Act, § 143B-279.8(a) (1997).
§ 143B-279.8(b).
§ 143B-279.8(b).
§ 143B-279.8(b).
§ 143B-279.8(b).

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If the Plan is developed pursuant to a legal mandate, the mandate may specify the plan vision andthe other elements of the plan. Table 2 provides examples of plans developed in accordance witha legal mandate, as well as those developed in the absence of one.
Table 2. Examples of Regional Visions
Program

Vision in Plan or Founding Document

Gulf of Maine Council on the Marine
Environment

In its current 5-year plan, The Gulf of Maine Council expresses thefollowing long-term goals:“Goal 1 Coastal and marine habitats are in a healthy, productive, andresilient condition.
Goal 2 Environmental conditions in the Gulf of Maine support
ecosystem and human health.
Goal 3 Gulf of Maine coastal communities are vibrant andhave marine-dependent industries that are healthy and globallycompetitive.”

California Ocean Protection Council

The COPC’s Strategic Plan includes a two-page vision statement that
identifies “what success might look like.” The vision describes anenvironment that is “clean, safe, prospering, and sustainably managed.”
It includes a vision of management that is ecosystem-based, relies on
the precautionary, principle, and is adaptive. It describes a management
approach based on sound science and policies that lead to better
education.

Gulf of Mexico Alliance

As stated in its Action Plan, the Gulf of Mexico Alliance is “intent on
significantly increasing regional collaboration to enhance the ecologicaland economic health of the Gulf of Mexico.”West Coast Governors Agreement on
Ocean Health

The West Coast Governors Action Plan, it describes a vision of a healthy
ocean:“In this plan, a “healthy ocean” means that marine, coastal, and estuarine
ecosystems, the watersheds that drain into these waters, the plant andanimal communities therein, and the physical, chemical, and biologicalprocesses involved are diverse and functioning, and the economies
and people dependent on them are thriving. A healthy ocean provides
aesthetic, cultural, and recreational values. It also supports the characterand quality of life of coastal communities and a vibrant, sustainableeconomy. Acknowledging that isolated efforts cannot address the breadthof degradation to the ocean, the states are committed to working together
to address critical protection and management issues faced by all threestates. By combining resources, the three states will affect positivechange in the present state of ocean health.”

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Program

Vision in Plan or Founding Document

Puget Sound Partnership

The Puget Sound Partnership is in the process of developing its Action
Agenda. The initial outline envisions a healthy ocean. The Partnershipstates that the section will articulate the goals of the Partnership. “Itwill describe what a healthy Puget Sound is and the key measures andtargets we will use to assess our progress toward Puget Sound recovery.”
The Puget Sound Partnership Action Agenda defines a healthy Puget
Sound as “a thriving natural world, high quality of life for people, and avibrant economy.”42 The Action Agenda envisions a healthy ecosystem
as comprising three important properties: resiliency to changes causedby humans or natural events; redundancy, or the presence of species andhabitats in more than a single location; and a historically representative
sample of species and habitats.43 The comprehensive vision is also tied
to strategic priorities and desired outcomes.

Aleutian Islands Fishery EcosystemPlan

As stated in the Overview of the Aleutian Islands Fishery EcosystemPlan, “[t]he goal of this FEP is to provide enhanced scientificinformation and measurable indicators to evaluate and promoteecosystem health, sustainable fisheries, and vibrant communities in the
Aleutian Islands region.” While sector-specific, the vision includes
consideration of the ecosystem, economy (fisheries), and society (vibrantcommunities). The Ecosystem Committee of the Council44 determined
the goal of this FEP collaboratively with both the Council and the FEP
team, a group of experts who ultimately wrote the FEP.45

Chesapeake Bay Fishery Ecosystem
Plan

The NMFS Ecosystem Principles Advisory Panel established the FEP
goal of “an umbrella document containing information on the structureand function of the ecosystem in which fishing activities occur, sothat managers can be aware of the effects their decisions have on theecosystem, and the effects other components of the ecosystem have on
its fisheries.”46 In response to this goal, the FEP Technical Advisory
Panel created a vision with seven guiding principles.

4243444546

42 Partnership Action Agenda, supra note 26 at 8.
43  Id. at 12.
44 The Ecosystem Committee was composed of the chair of the Council, a representative of the Marine Conservation Alliance,
the head of Oceana, the head of EPA Region 8, a professor at UW, and the head of the Alaska Fishery Science Center.
45 Personal communication, on file with authors (Jan. 13, 2009).
46 Chesapeake Fisheries Ecosystem Plan, supra note 35 at 4.

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2.2. Include specific target date to achieve overall vision.
Rationale: Part of the challenge of building accountability into the regional ocean governanceprogram, setting a specific date for achieving the vision helps create concrete goals andobjectives. Timelines offer an accountability mechanism that could entail either a legal or nonlegal approach. Deadlines establish a standardized way to gauge progress, and thus provide an
opportunity to increase accountability. Timelines can be adaptive in order to address existingneeds and reflect lessons learned.
Example: Agreement-Based Target Dates—Chesapeake Bay Program and Gulf of Maine
Council on the Marine Environment
The Chesapeake Bay Program provides an example of a voluntary approach to deadlines.
“Chesapeake 2000” outlines goals in five areas: living resources, vital habitat, water quality,
land use, and stewardship and community engagement. Many goals in these five areas have set
deadlines.
The Gulf of Maine Council on the Marine Environment (Gulf of Maine Council) establishes
long-term goals of protecting and restoring habitats, fostering environmental and human health,and supporting vibrant communities, and creates a five-year action plan to move closer towardachieving these goals.47 This is the fourth action plan for the Gulf of Maine Council—a program
established in 1989.
Example: Mandated Target Date—Puget Sound Partnership
The Puget Sound Partnership has the explicit goal of achieving a “healthy Puget Sound” by
2020. According to the state law, the Partnership is to develop an action agenda “based on
science and include[ing] clear, measurable goals for the recovery of Puget Sound by 2020.”48

47
48

Gulf of Maine Council on the Marine Environment, Action Plan 2007-2012 (2007), at http://www.gulfofmaine.org/actionplan/.
Engrossed Substitute Senate Bill 5372 [hereinafter ESSB 5372], § 1 (Wash. 2007).

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3.

Conduct Threats Analysis

3.1. Describe specific threats and impacts that the regional plan and program will address.
Rationale: ELI’s research indicated that one of the elements needed to achieve EBM
implementation was a demonstration that the EBM approach will solve specific problems facing
the region. EBM is a process to achieve a certain result; thus, EBM should not be undertaken
simply for the sake of “doing EBM.”
Example: Frameworks and Strategies—The Nature Conservancy 5-S Framework forConservation Project Management and NOAA Integrated Ecosystem Assessment
As described in the previous section on overall planning processes, The Nature Conservancy’s
approach to conservation planning offers useful insights. As part of its 5-S framework, it
includes identifying the stresses on the system and the sources of stress. These can collectively
be considered the challenges that the program and plan will seek to address.
Described previously, NOAA’s Integrated Ecosystem Assessment is a process for supporting
EBM. At the outset is a determination of the driver, pressure, and state of the ecosystem. Figure
9 uses the examples of agricultural runoff as the driver, coastal nutrients as the pressure, andhypoxia as the state of the ecosystem.
Example: Regional Program Approaches—Gulf of Maine Council on the Marine
Environment and Gulf of Mexico Alliance
The Gulf of Maine Council focuses its specific actions on goals that demonstrate success. For
example, the first goal is to protect and restore habitats. In the Council’s description of thespecific action items, it briefly describes the problems. For example, under the first goal, thePlan states:
This goal focuses on four related issues that affect the health of the Gulf of Maine, its
watershed, and the marine economic sector.
a. Invasive Species. Non-native plants and animals pose a major threat to the ecosystemand economic uses of the Gulf.
b. Land-based Activities. Human activities on land can lead directly or indirectly todegradation of the Gulf of Maine. …49

49

Id. at 2.

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In its Action Plan, the Gulf of Mexico Alliance identifies five goals: water quality, wetland
restoration; environmental education; characterization of Gulf habitats; and reductions in nutrient
inputs. Prior to describing specific actions, the Plan briefly summarizes the specific challenge
and discusses how the Alliance can help. While not explicitly stated in the plan, the Alliancepresumably considered the ecosystem threats and prioritized actions based on those threats inthe course of developing the plan. However, some key threats, such as nutrient-loading fromupstream states, are not addressed by the plan.

4.

Identify Concrete Goals and Measurable Indicators

4.1. Use ecosystem assessments and threats analysis to inform development of concretegoals and measurable indicators.
Rationale: An important part of EBM is the development of strategies to achieve healthy andresilient ecosystems. This means that plan concrete goals and measurable indicators of successshould be based on an understanding of the ecosystem and the threats to that system. The
threats assessment should help guide the next phase of plan development—i.e. help determine
what actions are necessary to minimize critical threats to the health and resilience of theecosystem. Several adaptive management models take this type of approach. For example, theTNC 5-S program and NOAA IEA are two iterative strategies that consider threats and develop
actions according to the threats (see previous section for description of TNC and NOAA
approaches).
Example: Sector-Specific Approach—Aleutian Islands Fishery Ecosystem Plan
The Aleutian Islands Fishery Ecosystem Plan (AIFEP) uses expert opinion to assess ecosystemrisks and to establish plan priorities. After identifying 22 key interactions (including climate
and physical, predator-prey, fishing effects, regulatory, and other socio-economic activity
interactions) that occur within the Aleutian Islands ecosystem, the plan determines eachinteraction’s level of impact and likelihood of occurrence. For example, the Plan identifies
increased acidification due to climate change as a high priority based on its potential level ofimpact and the likelihood of it occurring.50 Based on these assessments, the plan assigns eachkey interaction a risk assessment priority level. The plan utilizes this assessment to evaluate theNorth Pacific Fishery Management Council’s current efforts to address these risks, and how theCouncil could respond in the future.51
50 Aleutian Islands Ecosystem Team, Aleutian Islands Fishery Ecosystem Plan, 20, available at http://www.fakr.noaa.gov/npfmc/current_issues/ecosystem/AIFEPbrochure1207.pdf.
51  Id. at 18-20.

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Example: Cross-Sector Regional Approach—Puget Sound Action Agenda
When developing the priorities of the Puget Sound Action Agenda, the Puget Sound Partnershipdrew upon three ongoing efforts to assess the threats to the Sound. At the regional level, theAgenda utilized data generated by NOAA and the National Marine Fisheries Service as apart of an Integrated Ecosystem Assessment of Puget Sound. PSP also engaged scientific andpolicy experts to evaluate threats to a healthy Sound. By discussing major constraints withlocal implementers from the seven Puget Sound action areas, threats at the local level also
shaped the Agenda’s priorities and objectives.52 Thus, these three threat analyses informed thedevelopment of the Action Agenda’s priorities: (1) protect intact ecosystem processes, structures,and functions; (2) restore ecosystem processes, structures, and functions; (3) prevent waterpollution at its source; (4) coordinate work on priority actions; and (5) build an implementation,
monitoring, and accountability management system.53
4.2. While working within a comprehensive EBM approach, keep concrete goals focusedon key priorities.
Rationale: In all regions, whatever their scale, there is likely to be a long list of potentialsocial, economic, and environmental challenges. This means that the planning document could
identify an enormous list of activities as part of its comprehensive approach. However, a planthat tries to achieve too many objectives at once may have trouble achieving any of them anddemonstrating success. ELI’s research suggests that EBM programs should focus on issues
that are best solved through regional collaboration, rather than attempting to make all issues
regional.
Example: Broad Goals to Annual Targets—Chesapeake Bay Program
Chesapeake 2000 outlines 102 restoration commitments that fall within five broad goals. The
list of objectives is ambitious, and in some cases the Chesapeake Bay Program establishedrestoration goals that it could not realistically achieve given the available resources.54 In
response to GAO’s 2005 assessment and the Consolidated Appropriations Act of 2008, theChesapeake Bay Program revised its implementation goals in order to better account for limited
resources. The Chesapeake Bay Program partners developed 16 realistic annual targets, taking
into consideration both historic and existing program progress and funding.55 The 16 targets

52 Partnership Action Agenda, supra note 26 at 28.
53  Id. at 29-30.
54 U.S. Gen. Acct. Off. [hereinafter GAO], Chesapeake Bay Program: Improved Strategies Are Needed to Better Assess, Report, and Manage
Restoration Progress, Doc No. 06-96, at 6 (2005), available at http://www.gao.gov/new.items/d0696.pdf.
55 U.S. Environmental Protection Agency [hereinafter EPA], Region 3, Strengthening the Management, Coordination, and Accountability of
the Chesapeake Bay Program 14, available at http://cap.chesapeakebay.net/docs/EPA_Chesapeake_Bay_CAP.pdf.

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include three Bay-wide measures supported by all topic areas, and reflect achievable objectives
given the program’s current resources and initiatives.
Example: Attainable Goal-Setting—Gulf of Mexico Alliance
ELI learned through interviews that the Gulf of Mexico Alliance intentionally limited priorities
to those issues that were regional in nature and could be addressed by the five coastal states thatmade up the Alliance. One of the goals in taking this approach was to demonstrate success withthis initiative by working on a smaller number of attainable goals. For example, the Action Planlists harmful algal blooms that impair a wide range of coastal activities. To tie this problem
to the Alliance solution, it states “The five Gulf States face similar water quality problems inmany critical and shared watersheds and can recognize the value of a collaborative regional
approach to address these issues. A better scientific understanding of problems, as well as sharedsuccesses, will result in cost-savings and more effective management.”565758
4.3. Include specific indicators to measure success.
Rationale: Defining specific indicators (also described as “reference points, directions orsurfaces, thresholds, limits, targets, etc.”)57 to measure success enables adaptive management
and creates a mechanism for the EBM program and its stakeholders to evaluate whether the
program is accomplishing its goals. Indicators often focus on the health of the ecosystemor components of the ecosystem as well as society, economy, and the management process.
Indicators can be qualitative or quantitative. To be effective, indicators should informmanagement action—actions which should be linked to the overall ecosystem goals. Sectorbased management provides examples. A comprehensive set of marine ecosystem-based
management indicators has yet to be developed. However, scientists and managers are moving
in the direction of indicators that support ecosystem-based management.8

56 Gulf of Mexico Alliance, Governors’ Action Plan for Healthy and Resilient Coasts 12 (2006).
57 Jason S. Link, Translating Ecosystem Indicators into Decision Criteria, 62 ICES J. Marine Sci. 569 (2005). To move beyond
single-species fisheries management for example, Link (2005) identifies fourteen indicators that relate to length of all species,
size spectrum of all species, biomass of flatfish, pelagic species, high trophic level species, and piscivores, landings of target
species, interactions per species, fishery removals of all species, species richness, number of cycles, abundance of scavengers,
volume of gelatinous zooplankton, and area of live, hard corals
58 Id. at 570.

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Example: Fisheries Indicators—Chesapeake Bay59
In the 1980s, the surrounding states and relevant agencies formed a partnership to protect andrestore the Chesapeake Bay ecosystem. The Chesapeake Bay Program issued a reaffirmationof its commitment and restatement of its objectives in 2000. Among the stated goals, thepartnership pledged to restore and preserve the finfish and other living resources within thebay, including their habitats and relationships. The goal was divided into more specifictargets: through 2003 they focused on single species restoration efforts, then beginning in 2004
emphasized multi-species management. By 2005 there were to be “ecosystem-based multispecies management plans for targeted species,” followed by efforts to “revise andimplement existing fisheries management plans to incorporate ecological, social and economic
considerations, multi-species fisheries management and ecosystem approaches” by 2007.60
In practice, however, the transition from single-species to multi-species management could
not be accomplished instantaneously. Indicators of overall ecosystem health could not be
immediately implemented. Thus the Program developed two sets of goals and indicators bywhich to assess progress in fisheries management towards an ecosystem-based approach. The
first set encompassed the actual health of the fisheries, based on individual targets set for eachof five key fishery species – for example, increasing the level of spawning biomass of blue crab,
increasing the overall biomass of native oysters, or achieving a desirable catch per unit effort forshad.61
The second set of goals and indicators uses the results of the health-based indicators, but focuseson monitoring framework progress towards ecosystem-based fisheries management (EBFM),
based on whether the individual fishery management frameworks incorporated multi-species
and/or ecosystem-wide considerations. To make the assessments easy to compare and track, an
index was established that divides the management framework into three phases of development:(i) single-species fisheries management (SSFM), (ii) SSFM with multi-species management
consideration, and (iii) EBFM. An individual fishery management framework can earn amaximum number of points within each stage, and then the points from each stage are summed
for a total score of up to 100 points. The scoring system makes it possible to directly compare
each fishery’s progress towards EBFM, while the subdivided categories simultaneously show theoverall health of the individual fisheries.62 For example, even though in 2007 the Striped Bass
59 Resources for fisheries indicators include Stephen Jordan & Edward Houde, Managed fisheries of the Chesapeake Bay, in
Chesapeake Fisheries Ecosystem Plan, supra note 35 at 237–51 (containing explanations and examples of fisheries ecosystem assessment tools and indicators for fisheries).
60 Chesapeake Bay Program, Chesapeake 2000 (June 28, 2000).
61  Id.; Chesapeake Bay Program, Health Assessment Indicator Goals, available at http://archive.chesapeakebay.net/status/status07/
IndicatorGoalsHealthAssessment.doc; Chesapeake Bay Program, Replacement Indicator Information: Shad Abundance Indicator for the Chesapeake Bay (Jan. 24, 2008), available at http://archive.chesapeakebay.net/pubs/calendar/MONSC_12-18-07_Handout_9_9244.
pdf.
62 See Robert J. Wood & Ben J. Longstaff, Tracking Progress Towards Ecosystem Based Fisheries Management, Proceedingsof Coastal Zone 07, July 22-26, 2007 (Portland, Oregon), available at http://www.csc.noaa.gov/cz/2007/Coastal_Zone_07_Pro-28

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spawning biomass was at 100 percent of its target level, its overall score was 63 points because it
had not yet achieved EBFM.63
Example: Water Quality Indicators—Everglades64
In the late 1990s, the Army Corps of Engineers undertook the design and development of anew plan to protect and restore the Florida Everglades. The restudy, issued in 1999, contained
a recommended comprehensive restoration plan that was adopted in the Water Resources
Development Act of 2000—the resulting project has been referred to as the world’s largest
ecosystem restoration effort.65 An integral part of the plan to restore the Everglades is restoring
regional water quality conditions. To achieve this, one of the plan’s recommendations was toestablish numeric water quality criteria for the various waterbodies. If initial monitoring efforts
focused on establishing baseline data, then the criteria would provide concrete restoration goals
and a method for assessing progress.66
In general, the comprehensive plan uses performance measures and periodic interim goals togauge the progress of restoration efforts. For instance, consider the goal of restoring water
quality in one of the primary waterbodies in the Everglades, Lake Okeechobee. The ecology ofLake Okeechobee is detrimentally affected by excessive blue-green algal blooms and unnaturally
fluctuating water levels.67 Therefore two of the lake’s performance measures are (1) decreasing
phosphorous concentrations from initial concentrations of over 100ppb to a concentration ofjust 40ppb,68 and (2) eliminating extreme water level events of over 17 or less than 10 feet while
keeping seasonal water level variation between 12.5-15.5 feet.69 With these numerical goals inplace, the recommended interim goals were easily defined as decreased levels of phosphorous

ceedings/PDFs/Tuesday_Abstracts/3542.Wood.pdf; see also Chesapeake Bay Program, 2008 Fisheries Management Effort
Index, Data file, available at http://archive.chesapeakebay.net/status/status08/fisheriesmanagementindex2008.xls.
63  See Chesapeake Bay Program, 2008 Fisheries Management Effort Index, supra note 62; Chesapeake Bay Program, 2007
Health and Restoration Assessment, CBP/TRS-291-08, EPA-903-R-08-002 (Mar. 2008), available at http://www.chesapeakebay.
net/content/publications/cbp_26038.pdf.
64 Resources for water quality indicators include EPA, National Coastal Conditions Report III (Dec. 2008) (providing indicators
for water quality, sediment quality, benthic conditions, coastal habitat conditions, and fish tissue contamination); Robert F.
Doren, Joel C. Trexler, Andrew D. Gottlieb, & Matthew C. Harwell, Ecological indicators for system-wide assessment of the greater
everglades ecosystem restoration program (2008) (providing a list of criteria to use when determining indicator applicability. The
article is focused on the Everglades but the criteria are useful in other contexts).
65 U.S. Army Corps of Engineers, Central and Southern Florida Project Comprehensive Review Study, Final Integrated Feasibility Report
and Programmatic Impact Statement (PEIS) (1999), available at http://www.evergladesplan.org/pub/restudy_eis.aspx#mainreport[hereinafter Comprehensive Everglades Restoration Plan (CERP)]; Water Resources Development Act of 2000, P.L. 106-541 (Dec. 11,
2000).
66 See CERP, surpa note 65 at § 9.48.
67 CERP, Restoration Coordination and Verification (RECOVER), The Recover Team’s Recommendations for Interim Goals and Interim Targets
for the Comprehensive Everglades Restoration Plan ii (Feb. 17, 2005) [hereinafter RECOVER Recommendations].
68 CERP, System-wide Performance Measure Documentation Sheet, Lake Okeechobee Performance Measure—Lake Stage (Mar. 7, 2007).
69 CERP, System-wide Performance Measure Documentation Sheet, Lake Okeechobee Performance Measure—Water Quality Mosaic (Mar. 8,2007).

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and decreased occurrences of harmful high and low water levels – e.g., lake levels above 17 feetwere expected to decline 50 percent by 2015.70
Example: Land Use Indicators—Gulf of Maine Council on the Marine Environment
To achieve its broad restoration and protection goals, the Council has a program addressing
mitigation of coastal development impacts. The short-term objective is to increase coastallawmakers’ understanding of how to reduce the coastal environmental impacts of land-based
activities. The mid-term goal is to enact legislation requiring such impact minimization, improve
local planning tools to achieve such reductions, and get private entities to likewise minimize
their impacts. The long-term goal is to minimize the impact of coastal activities on the overall
environment.71 The Council’s eighteen-month Work Plan then delineates specific tasks forachieving these outcomes.72 Simultaneously, the Ecosystem Indicator Partnership is working
on developing indicators for ecosystem monitoring – as relevant to land-based activities, it isestablishing coastal development indicators for point sources, employment density, population
density, and impervious surfaces.73
Example: Management Indicators—MPA Guidebook
The MPA guidebook, How is Your MPA Doing?: A Guidebook of Natural and Social Indicators
for Evaluating Marine Protected Area Management Effectiveness, provides a step-by-stepprocess for selecting indicators, planning evaluation, conducting evaluation, and communicating
results and adapting management.74 While focused on marine protected areas specifically, thisapproach may be useful in a broader marine EBM context. The process for selecting indicators
includes: (1) identifying MPA goals and objectives; (2) matching relevant indicators to MPA
goals and objectives; (3) reviewing and prioritizing the indicators; (4) possibly prioritizing a
subset of indicators if all are not feasible; and (5) identifying connections among indicators.75 It
includes a list of biophysical indicators such as species abundance, population structure, habitat
distribution and complexity, and food web integrity.76 Socioeconomic indicators include local
marine resource use patterns, values and beliefs about marine resources, quality of human health,

70 RECOVER Recommendations, supra note 67 at 17-26; Intergovernmental Agreement Among the U.S. Dep’t of the Army, U.S.
Dep’t of the Interior, and the State of Florida Establishing Interim Restoration Goals for the Comprehensive Everglades Restoration Plan (Mar. 2, 2007).
71  Gulf of Maine Council on the Marine Environment, Action Plan 2007-2012, supra note 47.
72 Gulf of Maine Council on the Marine Environment, Work Plan January 2007 to July 2008 (Dec. 2006), available at http://www.
gulfofmaine.org/actionplan/Jan07-Jun08%20Work%20Plan%20Final.pdf.
73 Gulf of Maine Council on the Marine Environment, EcoSystem Indicator Partnership (ESIP), Primary Indicators, http://www.
gulfofmaine.org/esip/index.php#Primary%20Indicators.
74 Robert S. Pomeroy, John E. Parks, & Lani M. Watson, How is Your MPA Doing? A Guidebook of Natural and Social Indicators for Evaluating Marine Protected Areas Management Effectiveness (2004).
75 Id. at 8.
76 Id. at 52-53.

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number and nature of markets, and percentage of stakeholder group in leadership positions.77
Governance indicators include existence of a decision-making and management body, local
understanding of MPA rules and regulations, the level of training provided to stakeholders inparticipation, and clearly defined enforcement procedures.78 In all instances, indicators arelinked to overarching management goals and specific objectives.

5.

Develop an Implementation Plan

5.1. Designate a lead agency.
Rationale: In many voluntary regional programs that lack explicit implementation mandates,
the specific institution tasked with taking action may not be apparent. Especially when a legal
mandate is lacking, designation of a lead agency may enhance accountability and encourageplan implementation. Not only is the agency on notice of its role, but stakeholders and thebroader public will have information about the party responsible for action.
Example: Activities Matrix—Gulf of Mexico Alliance
In its Implementation Activities Matrix, the Gulf of Mexico Alliance lists the lead agency,
contributors, and collaborators for all specific actions.79 The lead agency is responsible foraccomplishing the particular activity. The contributors have agreed to provide funding or in-kind
support to accomplish the activity, and the collaborators must be included in the decision-making
process for the particular activity.
Example: List of Actions and Institutions—California Ocean Protection Council
In its first strategic plan, the Ocean Protection Council (OPC) includes an appendix, “Detailed
List of Actions: Potential OPC and Partner Roles.”80 In it, the Council identifies the leadagency including the OPC itself and all partners including other agencies and non-governmentalorganizations. It also articulates the role of the OPC in implementing each objective including(1) coordination, collaboration, and integration; (2) policy guidance; and (3) funding. It states
whether the OPC will serve a leading, direct, or supporting role in the implementation.

77
78
79
80

Id. at 116-117.
Id. at 164-165.
Gulf of Mexico Alliance, Implementation Activities Matrix, available at http://gulfofmexicoalliance.org/actionplan/welcome.html.
California Ocean Protection Council, A Vision for Our Ocean and Coast: Five-Year Strategic Plan (2006).

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5.2. Identify the legal authority to act.
Rationale: To support the implementation plan and demonstrate how it can be achieved, some
programs describe the legal authority under which action can be taken. In situations where theprogram is mandated by law, the statutory or regulatory text may delineate the legal authority
for action and the agency responsible for implementation. For soft-law programs, the legal
authority to act to implement the plan may not be clear. A memorandum of understanding
may be used in some circumstances to provide the legal basis for an agency to participate in an
EBM program. Otherwise, the plan itself may indicate the legal authority for specific actions.
Clearly stated legal authority may be especially important for soft-law regional governanceapproaches that are not operating under specific legal mandates, as a way to demonstrate an
institution’s ability to achieve its commitments.
Example: Legal Mandate—California Ocean Protection Act and Massachusetts Oceans Act
The California Ocean Protection Act establishes the California Ocean Protection Council anddesignates the Secretary of the Resources Agency, Secretary for Environmental Protection,
and Chair of the State Lands Commission as the council members.81 It delineates the
responsibilities of the Council including coordinating state agency activities, creating policies,and recommending changes to state and federal laws and policies.82
Under the Massachusetts Oceans Act, the Secretary of Energy and Environmental Affairs is
granted “oversight, coordination and planning authority.”83 The law requires the Secretary, in
consultation with an ocean advisory commission, to create an ocean plan; and once the planis created “all certificates, licenses, permits and approvals for any proposed structures, uses or
activities” in the planning area must be consistent with the plan.84
Example: Memorandum of Understanding—Chesapeake Bay
Memoranda of understanding or agreement (MOUs) help establish the role of different agencies
in undertaking a regional governance program. While MOUs are soft-law agreements that do notcreate binding requirements or change other legal mandates, they do help delineate the actions ofparticular agencies or institutions. Also, some MOUs specifically indicate the legal authority thatallows the agencies or institutions to participate or engage in specific activities.
Several MOUs pertain to the effective management of the Chesapeake Bay. For example,
EPA and the U.S. Fish and Wildlife Service signed an MOU in 1988 to facilitate information
81
82
83 
84

California Ocean Protection Act, Cal. Pub. Res. Code § 35600 (2004).
§ 35615.
Mass. Gen Laws ch. 21A, § 4C(a) (2008).
§ 4C(e).

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exchange between agencies.85 In the MOU, the agencies state the activities that will be
undertaken to achieve their goals. It also lists existing responsibilities and activities including
the laws under which the agencies act when engaging in information-gathering activities.

5.3. Estimate implementation cost, funding sources, and cost of inaction.
Rationale: To support the implementation plan and demonstrate how it can be achieved, some
programs estimate the specific costs of implementation and sources of funding. The cost andfunding sources will help the planning team to understand the potential for implementation
success and to determine where fund-raising efforts may be needed. If an action is funded,
the likelihood of successful implementation may be higher than for an unfunded action item.
Also, determining the cost of implementation may help with priority-setting. However, a morenuanced cost-benefit analysis may be a better approach for setting priorities: in other words, it
may be useful to balance the discussion of cost of action with the cost of inaction.
Example: Cost of Action—Chesapeake Bay Commission, Gulf of Maine Council on the
Marine Environment, and Gulf of Mexico Alliance
In 2002, the Chesapeake Bay Commission began a study to determine the cost of implementing
the Chesapeake 2000 plan.86 The study found that the implementation cost was $18.7 billion, of
which approximately $13 billion was still needed.87 The Commission conducted this analysis
as a first step in raising the necessary financial support88 Its report breaks down available
funding and funding needs by state (Maryland, Pennsylvania and Virginia), and for each state
lists the funds available and needed for living resources, vital habitat, water quality, land use,and community engagement. Within each spending category, the funding and costs are further
divided based on specific issues. For example, the vital habitat section includes funding and costestimates for submerged aquatic vegetation, watersheds, wetlands, and forests. The Commission
goes on to briefly consider the policy implications of the funding availability and shortfalls, andmakes recommendations to prioritize action based on the cost and benefit of activities.
In addition to a specific five-year action plan, the Gulf of Maine Council created an 18-monthwork plan, which describes specific activities and provides information on activity financing.
The financing section includes a list of tasks, the amount and type of cost (e.g. contractual, inkind, printing, etc), and sources of funding. In some cases, the work plan demonstrates that
85 Memorandum of Understanding between the U.S. Fish and Wildlife Service and the U.S. Environmental Protection Agency(1988), available at http://www.chesapeakebay.net/content/publications/cbp_12564.pdf.
86 Chesapeake Bay Commission, The Cost of a Clean Bay: Assessing Funding Needs Throughout the Watershed (2003), available at http://
www.chesbay.state.va.us/Publications/C2Kfunding.pdf.
87 Id. at 2.
88 Id.

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some activities are unfunded, which could limit the ability of the Council and its collaborators to
implement portions of the plan.
While not describing the specific cost of different actions, the Alliance’s Implementation
Activities Matrix includes a list of contributors that have agreed to provide funding or in-kind
support to achieve the activity.89
Example: Cost of Inaction—Stern Review on the Economics of Climate Change and The
Sunken Billions
The Stern Review Report on the Economics of Climate Change is a global assessment of thepredicted impacts of climate change, the cost of climate change, and methods and costs of
responding to such change.90 It provides an example of how long-term economic analysis
can help determine potential law and policy responses based on the cost of inaction versus
the cost of action. By incorporating the revised risks of catastrophic climate change predictedby scientific uncertainty and newly discovered feedback loops, the report projects that pastestimates of economic damage due to climate change have been too low, and that the actual
damage would by equivalent to a permanent loss of 5 percent of global GDP if current trends
continue. Factoring in non-market losses, as well as the disproportionate effect of climatechange on developing countries due to their hotter climates, poorer water supplies, and higher
dependence on agriculture, leads to an estimated 20 percent loss of global GDP. While this typeof report likely would not be made part of an EBM final plan, analysis like this could contributeto the determination of the costs and benefits of different policy options. Evaluating the cost ofinaction could also play an important role in making tradeoff decisions (discussed in Chapter
VI).
The Sunken Billions is a report developed by the Sustainable Development Network to provide
an economic justification for fisheries reform.91 Similar to the Stern Review, this type ofapproach could be applied in the EBM context to develop plans and make tradeoffs. The
Sunken Billions example highlights the use of economic costs and benefits to develop policy
recommendations or solutions that maximize long-term economic well-being in addition tomaintaining ecosystem function. The report finds that current operation of marine fisheries costs
the global economy approximately $50 billion annually and $22 trillion over the last thirty years
relative to optimal fishing practices, in addition to the economic losses from habitat destruction
and the impact of illegal fishing. The report recommends a shift from the traditional maximum
sustainable yield (MSY) approach to a broader approach of maximum economic yield (MEY),
89 Gulf of Mexico Alliance, Implementation Activities Matrix, supra note 79.
90 Nicholas Stern, Stern Review on the Economics of Climate Change (2006), available at http://www.hm-treasury.gov.uk/sternreview_index.htm.
91  Agriculture and Rural Development, Sustainable Development Network, The Sunken Billions: The Economic Justification for Fisheries
Reform (2008), available at http://siteresources.worldbank.org/EXTARD/Resources/336681-1215724937571/SunkenBillionsAdvanceWebEd.pdf.

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which is in most cases a smaller tonnage. The report recommends reducing the world’s fishingcapacity by approximately half.

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OCEBM Handbook

III. ECOSYSTEM SCIENCE AND
INFORMATION
A. 	Science and Information in Brief
Science-based natural resource management often considers species- or sector-specificinformation but falls far short of achieving a comprehensive understanding of the myriad
components that interact to form a healthy ecosystem. Marine resource management is plagued
by a more fundamental challenge—even the most basic information about physical structure,physical processes, and ecology is limited at best, let alone information to form a reasonable
understanding of the complex interactions within functional marine ecosystems.
EBM programs can and do take a variety of approaches toward accessing or developing the dataneeded to make effective decisions. Potential approaches for addressing ecosystem science indecision-making include the following:(1) Incorporate scientific decision-making throughout the EBM program.
••

Require decision-making based on sound science.
Use a science committee to serve as liaison to the scientific community and to advise
the regional governance body.

(2) Use available data to inform management decisions.
••••

Use long-term monitoring data.
Synthesize existing data to evaluate multiple parameters of the ecosystem.
Map ecological and social data to inform decision-making.
Synthesize existing data to evaluate cumulative human impacts.

(3) Collect new data to inform management decisions.
•
•
•
•
•

36

Develop a research plan based on regional needs.
Fund targeted research that informs management decisions.
Be timely with data sharing.
Use existing legal authority to consider multiple ecosystem parameters.
Use permitting authority to ensure that permittees support ecosystem-based
monitoring and research.

Environmental Law InstituteOCEBM Handbook(4) Share information across sectors and jurisdictions.
•••

Establish linkages among institutions.
Standardize information across jurisdictions and sectors.
Develop regional information systems.

This Chapter briefly describes concrete U.S. examples of these four approaches, including
describing the limitations of specific examples.

B. 	Science and Information in Practice1.

Incorporate Scientific Decision-Making throughout the
EBM Program

1.1. Require decision-making based on sound science.
Rationale: Ecosystem-based management is a management approach that “explicitly accounts
for the interconnectedness within systems.”92 This requires an understanding of ecosystem
structure, function and processes in order to make the appropriate management decisions. Thus,
science-based decision-making is an essential aspect of EBM. This includes using existingdata and gathering new data in a way that informs ecosystem-based decisions. It may include,for example, the development and use of scientific advisory bodies to inform policy-makers,
development of research plans to fill data gaps, and funding targeted science that supports
management decisions.
Example: Ecosystem Decision-Making—California Ocean Protection Council
California takes a multi-faceted approach toward fully incorporating science into decisionmaking. In creating the California Ocean Protection Council, the California Ocean Protection
Act stated that “[a] goal of all state actions shall be to improve monitoring and data gathering,
and advance scientific understanding, to continually improve efforts to protect, conserve, restore,
and manage coastal waters and ocean ecosystems.”93 It is also an explicit purpose of the Act to92 McLeod et al., supra note 1.
93  Cal. Pub. Res. Code § 35510 (2004).

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OCEBM Handbook“[i]dentify scientific research and planning that is useful for the protection and conservation ofcoastal waters and ocean ecosystems, and coordinate and assist state agencies in addressing thoseneeds.”94
Several responsibilities of the Council relate to collecting important data and using it to informmanagement decisions. It is the role of the Council to “[e]stablish policies to coordinate thecollection, evaluation, and sharing of scientific data related to coastal and ocean resources amongagencies.”95 The Council is tasked with “[establishing] a science advisory team of distinguishedscientists to assist the council in meeting the purpose of this division.” 96 The Council istasked with (1) contracting with the California Ocean Science Trust and other institutions to
conduct needed research, and (2) transmitting research results to state agencies to inform policy
decisions.97
Example: Sector-Based Decision-Making—Magnuson-Stevens Fishery Conservation andManagement Act and the Marine Mammal Protection Act
Originally passed in 1976, then amended in 1996 and 2006, the Magnuson-Stevens FisheryConservation and Management Act (MSA) has long been the dominant legislation governing
fisheries management in the United States. Recognizing that “[t]he collection of reliable data isessential to the effective conservation, management, and scientific understanding of the fisheryresources of the United States,” one of the foundational policies of the MSA is “to assure thatthe national fishery conservation and management program utilizes, and is based upon, the best
scientific information available.”98
The MSA established eight regional fishery management councils (RFMCs). As of 2006, every
new council member is expected to complete a training course developed by the Secretary ofCommerce on a variety of relevant topics, such as “fishery science and basic stock assessment
methods” and/or “fishery management techniques, data needs, and Council procedures.”99
The RFMCs are responsible for developing individual fishery management plans, which arestatutorily required to be based upon the best scientific information available.100 Each RFMC is
also required to establish and maintain a scientific and statistical committee to “assist it in thedevelopment, collection, evaluation, and peer review of such statistical, biological, economic,
social, and other scientific information as is relevant to such Council’s development andamendment of any fishery management plan.” The 2006 MSA amendments expanded the duties
94 § 35515.
95 § 35615(2).
96 § 35615(3).
97 §§ 35615(4)-(5).
98 Magnuson-Stevens Fishery Conservation and Management Act [hereinafter MSA], §§ 2(a)(8), (c)(3); 16 U.S.C. §§1802(a)(8), (c)(3) (2007).
99 MSA § 302(k); 16 U.S.C. § 1852(k). For more information on RFMC voting and non-voting member requirements and thenomination and appointment process, see §§ 302(a)-(d); §§ 1852(a)-(d) and 50 C.F.R. § 600.215 (2009).
100 MSA § 301(a)(2); 16 U.S.C. § 1851(a)(2).

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Environmental Law InstituteOCEBM Handbookof the scientific and statistical committee, requiring it to “provide its Council ongoing scientificadvice for fishery management decisions.”101 Finally, each RFMC is required to work with its
scientific and statistical committee to set five-year research priorities for fisheries, habitats, andother relevant fields.102
In addition to the research duties of the scientific and statistical committees, the Secretary ofCommerce is required to maintain a comprehensive fishery research program that is “designed
to acquire knowledge and information, including statistics, on fishery conservation andmanagement and on the economics and social characteristics of the fisheries.”103 The 2006
MSA amendments additionally mandated that a regional ecosystem study be conducted. The
study was to encompass “the state of the science for advancing the concepts and integrationof ecosystem considerations in regional fishery management” and to include, among otherthings, “recommendations for scientific data, information and technology requirements forunderstanding ecosystem processes.”104
Since 1972 the Marine Mammal Protection Act (MMPA) has prohibited the take of marine
mammals in the U.S. The Secretary105 has the authority to allow exceptions to the moratorium
and to prescribe regulations for the taking and importing of marine mammals “on the basis of thebest scientific evidence available and in consultation with the Marine Mammal Commission.”106
The requirement is more stringent when the Secretary is determining whether a species orstock is no longer depleted—in such cases the decision must be made “solely” based on thebest scientific information available, and the determination must undergo notice-and-comment
rulemaking.107
The MMPA also creates mechanisms for developing and analyzing the best scientific evidence
available. The Marine Mammal Commission (Commission) consists of three presidential
appointees knowledgeable in marine ecology and resource management, and among otherthings is required to study “the condition of the stocks of marine mammals, of methods fortheir protection and conservation, . . . [and] of research programs conducted or proposed to be
conducted under the authority of this Act.”108 It must conduct or direct research it determines isnecessary or desirable to achieve this objective, and make recommendations to federal entities
101 § 302(g)(1)(B); § 1852(g)(1)(B). Examples of the advice to be provided include recommendations for acceptable biological catch, preventing overfishing, and achieving rebuilding targets, and reports on stock status and health and the sustainabilityof fishing practices.
102 § 302(h)(7); § 1852(h)(7).
103 § 404(a); § 1881c(a).
104 § 406(f)(1); § 1882(f)(1).
105 The term “Secretary” refers to the Secretary of Commerce if the species under discussion is a member of the order Pinnipedia, other than walruses; or meaning the Secretary of the Interior for any other species. Marine Mammal Protection Act, §3(12)(A); 16 U.S.C. § 1362(12)(A) (2006).
106 §§ 101(a)(3)(A), 103(a); §§ 1371(a)(3)(A), 1373(a).
107 § 115(a); § 1383b(a) (emphasis added).
108 § 202; § 1402.

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OCEBM Handbook

regarding what must be done.109 The Commission also is required to create a Committee of
Scientific Advisors on Marine Mammals and to consult with the Committee “on all studies andrecommendations which it may propose to make or has made, on research programs conductedor proposed to be conducted under the authority of this Act, and on all applications for permits
for scientific research.”110
In 1994 the MMPA was amended to include another important provision affecting the body ofavailable scientific information. Section 117 implemented a stock assessment requirement for
all marine mammals and established three regional scientific review groups. The Secretary must
prepare stock assessments based on the best scientific information available, which address avariety of criteria ranging from geographic range to estimates of human-caused mortality andserious injury. These stock assessments undergo notice-and-comment rulemaking and arereviewed every 1-3 years. Further, three independent regional scientific review groups of experts
in related fields were established to advise the Secretary on matters such as marine
mammal population estimates, scientific uncertainties and research gaps, the impacts of habitat
destruction, and other appropriate issues.111

1.2. Use a science committee to serve as liaison to the scientific community and advise theregional governance body.
Rationale: Existing scientific committees or structures may be in place and poised to serveas advisors to a regional ocean governance program. In the absence of existing bodies, a newscience committee can serve as an important link to the scientific community and supportscience-based decision-making.
Example: State-Law Approach—California Ocean Sciences Trust and Ocean Protection
Council, Puget Sound Partnership, Massachusetts Ocean Management Initiative
Established under the California Ocean Resources Stewardship Act of 2000, the California
Ocean Sciences Trust has a mission to foster collaboration and make sure that the best scienceavailable is incorporated into ocean policy and management decisions.112 Since the creationof the Ocean Protection Council (OPC), the Trust has taken on the responsibility of providing
science advice to the OPC. The Executive Director of the Trust is formally named as the Science

109 § 202; § 1402.
110 §§ 203(a), (c); §§ 1403(a), (c). If the MMC does not adopt a recommendation made by the Committee, it must forward
the recommendation to the appropriate Federal agency and explain its rationale.
111 § 117; § 1386.
112 California Ocean Sciences Trust, One-Page Summary (2008) (on file with authors).

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Advisor to the OPC. In addition to providing advice, the Advisor serves as the OPC
representative on relevant West Coast projects and activities.
The California Ocean Protection Act requires the establishment of a scientific advisorycommittee that is to include scientists from a range of disciplines and provide independent andtimely analysis using best available science.113 The science advisory committee has several
responsibilities, including identifying and prioritizing research questions, and reviewing andevaluating research results to support OPC decisions.114
The Puget Sound Partnership is composed of three major bodies: the Leadership Council; theEcosystem Coordination Board (which advises the Council and is made up of 27 members that
represent different regional interests); and the Science Panel.115 The nine-member Science Panelserves as an “independent, nonrepresentational” scientific body that identifies environmental
indicators and benchmarks to incorporate into the Partnership’s action plan.116 The Science Panelalso is tasked with identifying science gaps and making recommendations on research priorities,
among other responsibilities.117 Members of the Science Panel are appointed in a two-stepprocess. The Washington Academy of Sciences nominates fifteen scientists that represent the fullrange of scientific disciplines and the Leadership Council appoints nine members from that list.118
In accordance with the Massachusetts Oceans Act of 2008, a science advisory council wasestablished to assist the Secretary of Energy and Environmental Affairs in creating a baseline
assessment and obtaining other necessary scientific information.119 The science advisory council
is made up of 9 members appointed by the Secretary. Three members must be from academic
institutions, three from nonprofit organizations, and three from government agencies.120 Since its
inception, the science council has met three times and is working toward a baseline assessment.
In addition to the science advisory input, ocean management planning includes the creation of six
agency working groups.121 The working groups prepare reports synthesizing available data on
the following topics: (1) habitat, (2) fisheries, (3) transportation, navigation, and infrastructure,(4) sediment, (5) recreation and cultural services, and (6) renewable energy.122

113  Cal. Pub. Res. Code § 35615(3) (2004).
114 § 35615(3).
115 Puget Sound Partnership, at http://www.psp.wa.gov/.
116 ESSB 5372 § 9 (2007).
117 § 10.
118 § 9.
119 Mass. Gen. Law ch. 21A § 4C(d) (2007).
120 § 4C(d).
121 Massachusetts Executive Office of Energy and Environmental Affairs, Ocean Planning Technical Materials, at http://www.mass.gov/?pageID=eoeeaterminal&L=3&L0=Home&L1=Ocean+%26+Coastal+Management&L2=Massachusetts+Ocean+Plan&si
d=Eoeea&b=terminalcontent&f=eea_oceans_tech_materials&csid=Eoeea.
122 Id.

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OCEBM Handbook

Example: Soft-Law and Federal Approach—Chesapeake Bay Program
The Chesapeake Bay Program has a Scientific and Technical Advisory Committee thatprovides guidance to the Program on measures to restore and protect the Bay. Its actions
include developing technical reports and papers, leading discussion groups, assisting in projectreviews, developing technical conferences and workshops, and working with the Chesapeake
Bay Program subcommittees and workgroups.123 For example, in response to the Chesapeake2000 agreement, the Committee developed a scientific and technical needs report that identifies
scientific and technical priorities to satisfy the goals related to living resources, habitat, water
quality, sustainable development, and stewardship.124
The federal Chesapeake Bay Restoration Act of 2000 requires the U.S. EPA to continue its
Chesapeake Bay Program Office, which is tasked with “implementing and coordinating science,research, modeling, support services, monitoring, data collection, and other activities that support
the Chesapeake Bay Program.”125 The Act also requires the Chesapeake Bay Program Office toprovide information through publications and technical assistance; cooperate with other local,
state, and federal bodies to implement the Chesapeake Bay Agreement; coordinate EPA’s actions
with other agencies to improve water quality and living resources; and implement outreachprograms.126

2.

Use Available Data to Inform Management Decisions

Several ELI interviews and meetings revealed that there is a lack of support for long-termmonitoring of ecosystem function and health. In part this is due to government and foundation
funding priorities. For example, Governor Schwarzenegger used his line-item veto power in2008 to cut funding for coastal water quality monitoring by $984,000 in response to the financial
crisis facing California.127 Lack of long-term monitoring support also is due to funding cycles:
granting agencies often fund for a few years at a time at most.128 While long-term data sets canprovide substantial information about ecosystem change over time—for example, the famous
123 Chesapeake Bay Program’s Scientific and Technical Advisory Committee, About STAC, at http://www.chesapeake.org/
stac/stacinfo.
124 Chesapeake Bay Program’s Scientific and Technical Advisory Committee, Scientific and Technical Needs Assessment, at
http://www.chesapeake.org/stac/STNeeds.html#STN.
125 Chesapeake Bay Restoration Act of 2000, § 117(b).
126 § 117(b).
127 See, e.g., Terry Rodgers, Program to Check Beaches Curtailed, Union Tribune (Sept 25, 2008), at http://www.signonsandiego.com/news/metro/20080925-9999-1m25beach.html.
128 See, e.g., Todd Reeve et al., Building Science and Accountability into Community-Based Restoration: Can a New Funding
Approach Facilitate Effective and Accountable Restoration?, 31 Fisheries 17 (2006) (describing the challenges that BonnevilleEnvironmental Foundation and its grantees face in conducting restoration projects that include adequate monitoring and evaluation including short term funding cycles).

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Keeling Curve demonstrating CO2 rise in the atmosphere—monitoring often is an activity that
does not top the list of priorities for governments, funding agencies, and researchers, making
it difficult for these projects to compete in a grant-driven research world.129 Yet increased
generation and use of such data is precisely what is required for ecosystem-based decisionmaking and governance.

2.1. Use long-term monitoring data.
Rationale: Monitoring provides important baseline data about the health of the ecosystem. It
is useful both for early detection of sudden changes, such as the introduction of an invasive
species; and to demonstrate subtle changes over time, such as the long-term monitoring data of
CO2 emissions. Monitoring is seen as an essential way to determine whether investments andactivities are having a positive impact on the health of the ecosystem, and is therefore critical for
adaptive management strategies.130
Example: Data Sources—Integrated Ocean Observing System Regional Associations
Resource managers and others could use the data sets generated through Regional Associations(RAs) to inform EBM decisions.131 RAs often use remote sensing equipment that can produce
long-term data-sets. Some of the data are available on a real-time basis, which could be aneffective way to detect rapid changes. For example, at the Scripps Pier in Southern California,
one of the data collection sites for the Southern California Coastal Ocean Observing System(SCOOS), data are collected on chlorophyll, pressure, salinity, and temperature. Moorings inSouthern California provide additional information on currents and winds, and dissolved oxygen.
Also, SCOOS provides total coliform, fecal coliform, and enterococci data at many sites along theSouthern California coasts. Stormwater plumes also are tracked at several locations in that region.
Such data could help inform EBM decisions, planning, and evaluation of program success.
Example: Data Sets—National Assessments Database and National Land Cover Dataset
The U.S. EPA hosts the National Assessments Database, which includes water quality
information submitted by the states as required under the Clean Water Act.132 It included
129 See, e.g., Jeffrey Mervis, NOAA Loses Funding to Gather Long-Term Climate Data, 307 Science 188 (2005) (describing thecongressional spending cuts that eliminated funding for 110 climate observing stations and decreased funding to the famous
Keeling Curve Mauna Loa site).
130 See, e.g., Ricardo Bayon, et al., Environmental Funds: Lessons Learned and Future Prospects (1999), available at http://economics.
iucn.org.
131  See Appendix A: Useful Organizations for more information about the Integrated Ocean Observing System and Regional
Associations.
132 EPA, National Assessments Database, at http://www.epa.gov/waters/305b/.

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OCEBM Handbook

water quality information for bays, estuaries, and coastal shorelines, as well as freshwater
sources. Water bodies are listed by 8-digit US Geological Survey cataloging units and arelisted as “good,” “threatened,” or “impaired.” For impaired water bodies the database includes
information on the cause and source of impairments. The information collected by the statesand made available through this database is used to inform regulation of discharges from point
sources and management of nonpoint sources of pollution. The Database website includes an“Enviromapper for Water” that provides spatial data about water quality and analysis including,for example, impaired waters, combined sewer overflow points, jurisdictional boundaries, andEPA water monitoring stations. One limitation of the National Assessments Database is thatstates use different methods to assess water quality, meaning that water quality conditions cannot
be compared across states or used to analyze national or regional trends.
The Multi-Resolution Land Characteristics Consortium is a federal multi-agency partnership thathas used satellite imagery to develop its database.133 Lands are classified in one of 21 different
classes of land cover including, for example, open water, low-intensity developed land, highintensity developed land, cultivated crops, and emergent herbaceous wetlands. Data is available
for use by federal and state agencies and groups or individuals for non-commercial ventures.

2.2. Synthesize existing data to evaluate multiple parameters of the ecosystem.
Rationale: Targeted data often informs managers about specific aspects of ecosystem function.
However, there are relatively few examples of data sets that have been combined to indicate
the overall health and sustainability of an entire ecosystem. In order to manage an ecosystemeffectively, regions could support baseline ecosystem assessments using existing data. The
following examples include sector-specific ecosystem assessments as well as national
assessments that could inform regional programs.
Example: Synthesizing Regional Data—Aleutian Islands Fishery Ecosystem Plan andSouthern California Coastal Water Research Project
The North Pacific Fishery Management Council (NPFMC) appointed the Aleutian Islands
Ecosystem Team to draft the Aleutian Islands Fishery Ecosystem Plan (AIFEP). The goalsof the AIFEP are to integrate information from across fishery management plans and NEPA
documents, identify indicators to evaluate ecosystem health, focus on tool development andrefinement, identify research needs, and help the NPFMC set management goals and objectives
and understand the cumulative effects of management actions.134
133 Multi-Resolution Land Characteristics Consortium (MRLC), National Land Cover Database, at http://www.mrlc.gov/index.
php.
134 Aleutian Islands Ecosystem Team, supra note 50 at 2.

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The ecosystem plan has some limitations. Unlike fishery management plans that serve as thefoundation for the regulatory program, the AIFEP is purely a planning and policy document withno legal authority. However, the North Pacific Fishery Management Council has expressed its
intent to “[work] through the various considerations and recommendations identified in the plan,and [refine] them for Council action.”135 The Council also intends to update the plan annuallyand re-evaluate it every 3-5 years.
Created in 1969, the Southern California Coastal Water Research Project (SCCWRP) brings
together multiple state and federal agencies to conduct coastal environmental research.136 To
evaluate the status of the coastal ecosystem, SCCWRP takes an interdisciplinary approach to
examine marine ecology, oceanography, chemistry of contaminants, and contaminant inputs.137
Research includes region-wide surveys and monitoring.138
Example: Synthesizing National Data—National Coastal Condition Report and National
Estuarine Eutrophication Assessment
The National Estuarine Eutrophication Assessment (NEEA) evaluates both the current conditionsof estuaries and, in the 2008 update of the original 1999 document, changes in eutrophication
status since the late nineties.139 It evaluates the effectiveness of ongoing management efforts,
outlines potential solutions for eutrophication problems, and indicates research needs. The
primary tool used to gather data in the most recent update was an online survey of experts
employing the ASSETS (ASSessment of Estuarine Trophic Status) method, while the original
survey was conducted through site visits and regional workshops. The most recent NEEA
includes national and international case studies illustrating the impacts of eutrophication as well
as of particular management techniques.140
Data gaps and management connections are limitations of this assessment. To conduct the
update, the authors used self-reporting methods, which resulted in gathering information on 70
percent of systems, as opposed to 88 percent of systems in the original document. The reportsuggests that such data gaps could be filled by integrating existing monitoring programs such as
the Integrated Ocean Observation System (IOOS) and the National Water Quality Monitoring
Network (NWQMN) into the self-reporting mechanism. The report only provides ground-level

135 North Pacific Fishery Management Council, Current Issues 16 (2008).
136 Southern California Coastal Water Research Project, About SCCWRP, at http://www.sccwrp.org/view.php?id=34.
137 Alan J. Mearns, M. James Allen & Michael D. Moore, The Southern California Coastal Water Research Project—30 Years ofEnvironmental Research in the Southern California Bight, in SCCWRP 1999 Annual Report, available at ftp://ftp.sccwrp.org/pub/
download/DOCUMENTS/AnnualReports/1999AnnualReport/01_ar01.pdf.
138 Id. at 19-20.
139 S. Bricker et al., Effects of Nutrient Enrichment In the Nation’s Estuaries: A Decade of Change, NOAA Coastal Ocean Program
Decision Analysis Series No. 26 (2007); National Ocean Service, National Estuarine Eutrophication Assessment: Effects of Nutrient
Enrichment in the Nation’s Estuaries (1999).
140 Id.

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management strategies for individual case studies, and its final recommendations are limited to
improved communication with the public and with regulatory agencies.
The Clean Water Act mandates that the EPA report periodically on the condition of the country’s
coastal waters, which EPA does systematically through the National Coastal Condition Report.
The third report released in 2008 tracks trends in coastal condition between 1990 and 2002.141
The report compiles standardized data from a wide range of governmental sources, including
the EPA’s Environmental Monitoring and Assessment Program (EMAP), NOAA’s National
Status and Trends (NST) and Marine Monitoring and Assessment Programs, the FWS’s National
Wetlands Inventory (NWI), and the State of the Lakes Conference (SOLEC). The report alsouses data from states and other regulatory agencies concerning public use of coastal areas,
although such data is gathered using various methodologies and thus cannot be used for broad
comparisons.
It should be noted that the National Coastal Condition Report is purely an assessment, and while
it does identify changes in coastal condition and identify potential sources of such change, itdoes not make specific recommendations linking the data to management action. Additionally,
the existing report does not include most of Alaska, although future reports will correct thisdeficiency.

2.3. Map ecological and social data to inform decision-making.
Rationale: Mapping data is an increasingly popular way to synthesize ecosystem informationand communicate that information to decision-makers and the public. It is an essential elementof marine spatial planning and management—an approach that is increasingly seen as the best
way to achieve EBM.
Example: State-Based Approach—New York Ocean and Great Lakes Ecosystem Conservation
Council
The New York Council has developed an online mapping program, the Atlas, which includes
more than 300 datasets. The Atlas is meant to provide citizens and decision-makers withspatial information about New York’s ecosystems, including both administrative and ecologicalinformation.142 Administrative information includes county jurisdictional boundaries, major
cities, and area designations such as fishery closures and marine protected areas. Biological andphysical information includes, for example, invasive species locations, sea grass habitat, andwatershed boundaries.
141  EPA, National Coastal Condition Report III (2008).
142 New York Ocean and Great Lakes Ecosystem Conservation Council Announcement, on file with authors.

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Example: National Approach—NOAA Coastal Services Center
Tools under development by NOAA’s Coastal Services Center (CSC) include the “Digital
Coast Legislative Atlas,” which includes topographical and habitat data as well as regulatory
boundaries, and “georegulations”—spatial representation of coastal and ocean laws. For
example, those considering developing a regional ocean governance program could review theLegislative Atlas to determine the appropriate federal agencies and regional offices to include insuch a program. CSC is also working to support development of the marine cadastre, called forin the Energy Policy Act of 2005, to help in siting decisions for alternative energy production on
the Outer Continental Shelf.143
The Legislative Atlas is still under development. Most of the mapped data relates to federal laws
and institutions. Some region-specific state laws and institutions have been added or are in theprocess of being added. Also, while the Atlas provides basic information about jurisdictionalboundaries and applicable laws, it does not provide the nuanced details that would be needed for
an in-depth law and policy analysis.

2.4. Synthesize existing data to evaluate cumulative human impact.
Rationale: One of the challenges with ecosystem management is understanding the multiple
human-caused impacts on the ecosystem. New efforts are underway to develop computer-based
methods to quantitatively evaluate multiple human impacts on different marine habitats.
Example: National Center for Ecological Analysis and Synthesis Human Impacts StudyIn early 2008, a study o mapping of human impact on marine ecosystems led by Benjamin S.
Halpern and funded by the National Center for Ecological Analysis and Synthesis (NCEAS)
was published in Science. The research team compiled data on 17 anthropogenic drivers,
which encompassed the effects of climate change, fishing, and pollution, although data was notavailable for recreational fishing, aquaculture, disease, coastal engineering (habitat alteration),
point-source pollution, IUU fishing, and atmospheric pollution.144 The drivers were then impactweighted according to standardized, quantitative estimates of the varying effects each of theactivities would have in 20 different ecosystems.145 The project goal was to create a mapping
143 Nat’l Oceanic & Atmospheric Admin. [hereinafter NOAA], Coastal Services Center, Digital Coast: Legislative Atlas, at
http://www.csc.noaa.gov/legislativeatlas/.
144 Halpern et al., Global Map, supra note 4 at 950–951. The seventeen drivers were: benthic structures, commercial shipping, ocean-based pollution, species invasion, ocean acidification, UV, sea temperature, artisanal, low-bycatch, high-bycatch, nonhabitat-modifying low-bycatch, non-habitat-modifying hi-bycatch, habitat-modifying, direct human, nonpoint inorganic, nonpoint
organic, nutrient input.
145 Id. at 948–49.

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model that would account not only for the extent of human activities, but for the relative effectsof those activities. The result was a 1 km2 resolution map of human impact on global marine
ecosystems, not just the human footprint (see Figure 1, supra p.2).146
Mapping the spatial variation in estimated human impact enables interested parties to both
spatially manage drivers (e.g., rerouting shipping lanes to protect highly impacted or sensitive
areas) and to prioritize regional planning efforts (e.g., addressing drivers with the highest impact
scores first). In short, knowing the relative impact of different anthropogenic activities makes it
possible for parties to maximize the tradeoff between desired activities and ecological effects.147
The model created by Halpern et al. demonstrates the feasibility of such large-scale maps andoffers a starting point for similar but local-scale efforts.
Example: Use Marine Geospatial Ecology Tools to Make Management Decisions
Dr. Patrick N. Halpin specializes in using geographic information systems (GIS) to link marine
management and conservation to ecological processes. At the Marine Geospatial Ecology Lab
at Duke University, Dr. Halpin’s team of researchers has developed a library of open-source
programming tools for marine researchers and GIS analysts. Accessible through ArcGIS oras a set of Python modules and COM components, Marine Geospatial Ecology Tools (MGET)
is a collection of modeling tools designed for spatially-explicit ecological and oceanographic
data.148 The potential uses of MGET are numerous, ranging from habitat modeling to processing
remotely-sensed data. For example, from spatially-explicit species observation data andoceanographic images, MGET can fit and evaluate a multivariate statistical model that predicts
the probability of species occurrence; or MGET can simply automate the laborious process ofsampling dynamic variables or converting HDF oceanography products to ArcGIS rasters.149
The continually growing suite of tools is designed to enable marine and coastal researchers tolink spatial and temporal data with ecological processes to inform conservation and management.
If spatially-explicit data on human activities were available and inputted, marine management
could be informed by information on correlations between specific activities and ecologicalimpacts. MGET allows detailed, small-scale modeling of the individual impacts that Halpern etal. analyzed cumulatively for the global ocean.

146 Id. at 948–49.
147 Id. at 950–51.
148 For more information on the technical specifics and potential uses of MGET, see http://code.env.duke.edu/projects/mget.
149 For detailed explanations of these and other examples, see http://code.env.duke.edu/projects/mget/wiki/
MGET%20examples.

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3.

Collect New Data to Inform Management Decisions

3.1. Develop a research plan based on regional needs.
Rationale: To ensure that research supports regional needs based on the vision and goals of the
program, EBM programs should make use of existing research plans or establish mechanisms todevelop research plans as part of the EBM program.
Example: Multi-State Approach—Sea Grant Regional Research Support
Several aspects of Sea Grant make it an ideal information source when developing andimplementing an EBM program. First, Sea Grant supports regional coastal research that informs
management decisions. Second, regional Sea Grant programs are working together to develop
regional research agendas based on a needs assessment. Third, each Sea Grant program has
several field agents who work directly with the ocean community to answer important researchquestions.
Example: Single-State Approach—Puget Sound Partnership
According to state law, the Puget Sound Partnership Science Panel, after an initial assessment, isto submit updates to the Executive Director to reflect new scientific understanding. The updates
are to:(b) Describe the current scientific understanding of various physical attributes of
Puget Sound;(c) Serve as the scientific basis for the selection of environmental indicators
measuring the health of Puget Sound; and(d) Serve as the scientific basis for the status and trends of those environmental
indicators.150
The Science Panel also is tasked with developing a biennial science work plan that includes
an identification of scientific and technical recommendations; a description of science-based
activities in the Sound; scientific gap analysis; specific biennial science actions to address needs;
and recommendations for improvements to ongoing scientific endeavors.151

150 ESSB 5372 § 11(3) (2007).
151  § 11(5).

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Example: Federal Approach—Joint Subcommittee on Ocean Science and Technology Ocean
Research Priorities Plan and Implementation Strategy
Established in response to the U.S. Commission on Ocean Policy recommendations, theJoint Subcommittee on Ocean Science and Technology (JSOST) developed a national Ocean
Research Priorities Plan and Implementation Strategy that identifies research priorities for “themost compelling issues in key areas of interaction between society and the ocean.”152 JSOST
developed the plan through a participatory process that included consultation and contributions
from scientists and technical experts, resource managers, and others participating in workshops
and conferences and responding to draft documents.153
The Research Plan includes an articulated vision of future knowledge to help guide the researchplan development.154 It identifies critical elements of science and technology, including:“developing the understanding and capability to forecast ocean processes; providing the scientificinformation needed to support ecosystem-based management, particularly in coastal andnearshore environments; and accelerating deployment of an ocean-observing system that will,in turn, advance both forecasting and adaptive ecosystem-based management capabilities.”155
The Plan includes six themes related to stewardship, natural hazards and resilience, marine
operations, climate and ocean, ecosystem health, and human health.156 The Plan identifies twenty
ocean research priorities and four near-term priorities.157
3.2. Fund targeted research that informs management decisions.
Rationale: Not only is it necessary to fund research that supports management objectives, but
the funds should include reporting requirements that ensure that data is translated to managers
in a timely fashion.
Example: Creating a Trust—California Ocean Science Trust
The California Ocean Science Trust works with Sea Grant to manage the California Ocean
Protection Council’s funds for research. Research funds are being used to support ecosystembased research that has direct applicability to regional ecosystem planning and management.

152 Committee on Ocean Policy, NSTC Joint Subcommittee on Ocean Science and Technology [hereinafter JSOST], Ocean
Research Priorities Plan and Implementation Strategy, at http://ocean.ceq.gov/about/sup_jsost_prioritiesplan.html.
153  JSOST, Charting the Course for Ocean Science for the United States for the Next Decade: An Ocean Research Priorities Plan and Implementation Strategy (2007), available at http://ocean.ceq.gov/about/docs/orppfinal.pdf.
154 Id. at 1.
155 Id. at 4.
156 Id. at 9.
157 Id. at 10.

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The Trust helps to ensure that OPC-funded research targets the objectives of the OPC Five-year
Strategic Plan.158
Example: Regional Opportunities—IOOS Regional Associations
Regional organizations, federal and state agencies, academics, NGOs, and businesses may
participate in the development and work of the Integrated Ocean Observing System (IOOS)Regional Associations (RAs). Members have the opportunity to help shape the direction of
the RA. EBM programs or representatives could join RAs or otherwise work with them todevelop needed scientific data.159 Membership varies according to the MOUs and bylaws underwhich the RAs operate. Some membership requires dues that are paid as flat fees or on a sliding
scale. To date, the IOOS RAs provide physical and chemical data and have minimal biologicalinformation. Data collection and availability varies according to region.

3.3. Be timely with data sharing.
Rationale: There is often a temporal disconnect between management action and scientificresearch and monitoring. Managers may need to make decisions on a relatively quick schedule,
whereas conducting accurate scientific assessment to inform a management decision may takemuch longer. There is a need to have a system of information sharing that allows managers tounderstand research progress and interim results, while waiting for a report or publication thatfully analyzes a research question.
Example: Interim Reports—Chesapeake Bay Program
One of the challenges with science-based management is obtaining the information necessary
to make management decisions in a timely fashion. Institutional disconnects exist between
those in need of scientific information for decision-making and those conducting research. For
example, government institutions and actors may need information as it is collected, whereas
scientific institutions and actors may prefer to collect robust publishable data before sharing theinformation. The Chesapeake Bay Program has tried to address this information-sharing gap byrequiring quarterly reports from grantees that indicate research progress.160 Not only does thiscreate accountability mechanisms, but it may help managers make better decisions in the face of
scientific uncertainty.

158 California Ocean Science Trust, Science Services to the Ocean Protection Council, at http://www.calost.org/science_services_OPC.html.
159 See,e.g., GoMOOS, Membership in GoMOOS, at http://www.gomoos.org/membership/.
160 Personal communication, on file with authors (Nov 17, 2008).

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3.4. Use existing legal authority to consider multiple ecosystem parameters.
Rationale: Many environmental laws provide the legal authority for government institutions
to conduct research on multiple ecosystem parameters that affect the particular sector-based
resource.
Example: Sector-Based Approach to Considering Ecosystem—Magnuson-Stevens FisheryConservation and Management Act
The Magnuson-Stevens Fishery Conservation and Management Act (MSA) authorizes theconsideration of broad ecosystem parameters in conducting research to support fisheriesconservation and management. Even prior to the 2006 reauthorization, the language of the MSA
allowed for fisheries research that considers multiple ecosystem parameters. Section 404(c) of
the Act lays out the areas of research and includes “[r]esearch to support fishery conservationand management, including but not limited to, biological research concerning the abundance andlife history parameters of stocks of fish, the interdependence of fisheries or stocks of fish, theidentification of essential fish habitat, the impact of pollution on fish populations, the impact ofwetland and estuarine degradation, and other factors affecting the abundance and availability offish.”161
This provision would presumably allow a fisheries research program to meet EBM objectives—
an approach bolstered by the 1996 and 2007 amendments. Under the Sustainable Fisheries
Act (the 1996 amendments reauthorizing the MSA), an advisory panel was established to makerecommendations about “the extent to which ecosystem principles are being applied in fisheryconservation and management activities, including research activities” (§406(a)-(e)). The
resulting Ecosystem Principles Advisory Panel published its report to Congress in 1998, which
includes recommendations for implementing ecosystem principles, goals and policies.162 Its
primary recommendation was for each regional council to develop a fishery ecosystem plan.163
These recommendations directly informed the development of the Aleutian Islands Fishery
Ecosystem Plan and the Chesapeake Bay Fishery Ecosystem Plan, described in greater detailin the planning chapter. Section 406 was further amended in 2006 to include part (f) “Regional
Ecosystem Research.” This provision calls upon the Secretary of Commerce, in consultation
with the Marine Fisheries Councils, to “undertake and complete a study on the state of thescience for advancing the concepts and integration of ecosystem considerations in regional
fishery management.”164
161 MSA § 404(c); 16 U.S.C. § 1881c(c) (2007).
162 Ecosystem Principles Advisory Panel, Ecosystem-Based Fisheries Management: A Report to Congress, available at http://www.nmfs.
noaa.gov/sfa/EPAPrpt.pdf.
163  Id. at 27.
164 MSA § 406(f); 16 U.S.C. § 1882(f) (2007).

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Example: Ecosystem Approach to Water Quality Management—Maine’s Tiered Aquatic Life
Uses
Under the Clean Water Act, states establish water quality standards by designating uses andcreating criteria to support those uses.165 Designated uses can relate to the health of species aswell as how humans use the water body—e.g., recreation, fishing, and drinking water.166 Statescreate criteria for different designated uses. Criteria can be based on human health, nutrients,
and/or biological parameters, among others.167 Maine has developed “tiered aquatic life uses,”
making water quality management decisions based on quantitative ecosystem data that indicatesthe health of the aquatic life in the water body.168 It classifies water habitat as natural, very good
(unimpaired), sustainable (maintaining structure and function), and degraded (non-attainment ofminimum standard). To determine health of the ecosystem, the state measures a variety of
ecological parameters including species richness and abundance, diversity, indicator taxa, andtrophic groups.169

3.4. Use permitting authority to ensure that permittees support ecosystem-based
monitoring and research.
Rationale: Data collection is costly and time consuming. In certain instances it may be more
appropriate for permit-holders to be tasked with data collection as a condition of receiving
their permit. This can allow for expanded data collection programs that minimize the costs togovernment. However, in some instances, communities may be suspicious of data collected bythose developing, extracting, or polluting the resource.170
Example: Magnuson-Stevens Fishery Conservation and Management Act
Under MSA Section 401, the Secretary of Commerce is required to develop recommendations
for a standardized vessel registration and information management system. Under this provision,
the Secretary is called upon to make recommendations on requiring fish processors, fish dealers
and other ex-vessel purchasers to submit information (§ 401(9)). Fishing permits are tied to
165 EPA, Water Quality Standards, at http://www.epa.gov/waterscience/standards/.
166 EPA, Designated Uses, at http://www.epa.gov/waterscience/standards/uses/index.html.
167 EPA, Water Quality Criteria, at http://www.epa.gov/waterscience/criteria/.
168 Susan P. Davies, Maine’s Tiered Aquatic Life Standards and Biological Criteria (2003) (presentation), available at http://
epa.gov/waterscience/biocriteria/modules/wqs101-04-maine-tiered-standards-biocriteria.pdf.
169 Id. For more information, see Maine Bureau of Land & Water Quality, Monitoring and Assessment, at http://www.maine.
gov/dep/blwq/monitoring.htm.
170 For example, some local resource users in the Arctic are concerned that the main source of marine science is funded or research conducted by the oil and gas industry, and there is concern that the data may be biased in favor of that industry. Personalcommunication with community organization (Oct 2008).

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specific regulatory requirements, including reporting requirements, which typically relate directly
to the fishing activity rather than broader ecosystem information. For example, in the Northeast
Region, fishers are required to submit weekly trip reports when fish are received or purchasedthat include dealer information, vessel information, dates of purchase, price per unit, and landing
port.171 Also, in some fisheries, permit holders must carry observers onboard. Observers often
collect scientific data in addition to reporting violations. Permits could be granted conditionally,
and require additional data collection that would target broader ecosystem information.
Example: North Carolina In-Stream Water Quality Monitoring Requirements
In North Carolina, the Division of Water Quality collects instream monitoring data on awatershed basis in order to better assess the water quality of the ecosystem through themonitoring efforts of dischargers.172 Today, six coalitions in four river basins work together tomonitor 269 stations. The coalitions are created through memoranda of agreement (MOAs)
between the dischargers and the Division. For example, the Lower Neuse Basin MOA creates
upstream and downstream water quality monitoring requirements for permit-holders,173 whocollect data on temperature, dissolved oxygen, pH, nutrients, metals, turbidity, fecal coliform,and chlorophyll a.174 A single state certified laboratory analyzes data for the coalition region,
allowing for more consistent and comparable data. The Division collects this data and currently
has more than 50,000 records in its database.
Example: Wave Energy Development
The Federal Energy Regulatory Commission (FERC) claims authority to regulate “hydrokinetic
energy”—energy from waves, tides, and currents—in navigable waters of the U.S., including
ocean and coastal waters. The authorizing law, the Federal Power Act, requires that licenses
issued must include conditions for protection, mitigation, and enhancement “in order toadequately and equitably protect, mitigate damages to, and enhance, fish and wildlife,”175 aswell as other conditions that the Commission may require.176 In issuing an order to the Makah
Tribe for the licensing of a wave energy project in the Olympic National Marine Sanctuary, theCommission required the development of several fish and wildlife plans in consultation with
NOAA’s National Marine Sanctuary Program, the Makah Tribe, National Marine FisheriesService, U.S. Fish and Wildlife Service, Washington Department of Fish and Wildlife, and171  NOAA, National Marine Fisheries Service [hereinafter NOAA Fisheries], Northeast Region, Reporting Guidelines for Federally Permitted Seafood Dealers in the Northeast Region, available at http://www.nero.noaa.gov/dealer_er/highlights/DER_guidelines.pdf.
172 North Carolina Division of Water Quality, NPDES Discharge Monitoring Coalitions, at http://h2o.ehnr.state.nc.us/esb/coalitions.html.
173 Memorandum of Agreement between the State of North Carolina’s Division of Water Quality and the Lower River Basin
Association Permittees (Effective Feb. 1, 2004 – Jul. 30, 2009), available at http://h2o.ehnr.state.nc.us/esb/coalitions.html.
174 Id. at Appendix A.
175 16 U.S.C. § 803(j) (2000).
176 § 803(g).

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the Washington State Department of Ecology.177 These include plans for epibenthic studies
before and after installation, macroalgae and eelgrass surveys, water quality monitoring, noiseassessment, and marine mammal mitigation and monitoring.178

4. Share Information across Jurisdictions and Sectors
4.1. Establish linkages among institutions.
Rationale: Often information that can support EBM planning and decision-making alreadyexists. However, the information may not be easily accessible or even in a form that is usefulfor management. Without proper communication and collaboration, agencies may not fully
incorporate available information from other agencies or may conduct redundant research.
Example: Regional Science Collaboration—North Slope Science Initiative
The North Slope Science Initiative (NSSI) in Alaska provides an example of regional sciencecollaboration. The goal of NSSI is to increase inter-agency collaboration to address research,
inventory, and monitoring needs.179 A collaborative approach such as this could be linked
to a regional governance program or form a part of a regional governance program thatfacilitates information transfer among scientists and to the management and policy community.
Specifically, any regional EBM program that focuses on the Chukchi and Beaufort Seas should
consider working with NSSI to accomplish EBM science objectives. One challenge with NSSI isthat it was not created with additional funds to ensure implementation. According to the Charter,
member agencies are responsible for their own expenses. In interviews with people working in
the North Slope region, ELI learned that several people consider NSSI to be ineffective thus far
at creating the needed collaborative management.
Example: Online Networking—EBM Tools Network
The Ecosystem Based Management Tools Network supports the creation and use of EBM tools
in marine, coastal, and watershed contexts. Membership includes groups that create EBM
tools and those that use such tools in academic, governmental, and non-governmental settings.
The network itself is coordinated by NatureServe. The group’s primary creation is a public
177 Federal Energy Regulatory Commission 122 FERC ¶ 61,248, Order on Rehearing and Clarification and Amending License
14 (Mar 20, 2008).
178 Id. at 13-14.
179 North Slop Science Initiative, Introduction, at http://mtri.org/QuickPlace/northslope/Main.nsf/h_Toc/
c5babd578ff33f68852572ac005004f4/?OpenDocument.

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database of existing EBM tools, allowing those developing EBM programs to find and utilize
the most appropriate tools. The EBM Tools network particularly encourages development
in areas considered underserved, such as integrated land-sea planning and social sciencemodeling. The Network generally promotes best practices for the use and creation of EBM tools
with a particular focus on their interactivity, and has recently begun a tools training programeducating EBM practitioners on currently available tools and associated resources. The Network
also serves as a resource for funding, technical assistance and data, streamlining EBM tool
development and application through a full range of informational services.180

4.2. Standardize information across jurisdictions and sectors.
Rationale: Scientists may run into challenges synthesizing ecosystem information because of
the various data collection methods and reporting approaches. Without standardized protocols
for data collection and storage, researchers may have difficulty accurately synthesizing existing
information.
Example: Federal Fisheries Management
As part of the 1996 Sustainable Fisheries Act amendments, the Magnuson Stevens Fishery
Management and Conservation Act calls upon the Secretary of Commerce, in cooperation with
the Coast Guard, states, fishery councils, and fishery commissions, to develop recommendations
for implementing a standardized fishing vessel registration and information management
system on a regional basis.181 This provision requires recommendations that relate to vessel
registration, information collection requirements under the MSA as well as other marine resource
laws including the Marine Mammal Protection Act, and implementation through cooperative
agreements, among others.182 It also requires recommendations related to the establishmentof standardized units of measurement, nomenclature, and formats for the collection anddissemination of information.183
The result of the registration and information system requirements was a 1998 report to Congressthat described a model National Fisheries Information System, and, in 2003, NOAA Fisheries
took the first steps toward developing the system.184 The Fishery Information System projects
include a National Permit System Project to harmonize fishing permits systems across NOAA;

180 Ecosystem Based Management Tools Network Website, http://www.ebmtools.org/.
181 MSA § 401(a); 16 U.S.C. § 1881(a) (2007).
182 §§ 401(a)(1)-(4); §§ 1881(a)(1)-(4).
183 § 401(a)(6); § 1881(a)(6).
184 NOAA Fisheries Information System, About FIS, at http://www.st.nmfs.noaa.gov/fis/about/what.html; NOAA Fisheries,
Proposed Implementation of a Fishing Vessel Registration and Fisheries Information System: Report to Congress (1998).

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the Commercial Landings Integration Project to integrate regional commercial landing data at thenational level; the Pacific electronic fish ticket to capture and track fish ticket data; the Trip Data
Reconciliation Project to reconcile disparate data sets; the Electronic Reporting Roadmap related
to the use of vessel monitoring system data;185 and the FIS InPort Metadata Catalog allowing
NOAA and state and regional partners to share fisheries-dependent data and understand the“what, where, when, how, and who” about the data holdings; among other projects.186
Example: Southern California Coastal Water Research Project
The National Research Council reviewed marine monitoring in 1990, finding that dischargers
largely carried out monitoring.187 The NRC report also found that the monitoring methods
were inconsistent with different indicators and field and laboratory methods, and incompatible
data formats, making it impossible to synthesize the data to analyze the water quality acrossthe Southern California Bight.188 In response, the Southern California Coastal Water Research
Project (SCCWRP) standardized methods and coordinated data collection.189 Its firstcollaborative assessment in 1994 included 12 local, state, and federal agencies and focusedon fish and sediment quality.190 Its second collaborative assessment in 1998 included 62
organizations, and the assessment was expanded to include bays, harbors, port areas, and nearby
Mexican waters. It also added a microbiology component.191 To achieve standardization,
SCCWRP developed methods manuals, which now articulate required procedures for monitoring
facilities; conducted training exercises; and developed quality assurance protocols involving fieldaudits and blind sample analysis.192 Today fourteen agencies and organizations participate in
SCCWRP, including the most recent addition, the California Ocean Protection Council.193
Example: National Water Quality and Assessment Program
The USGS created the National Water Quality Assessment Program (NWQAP) in 1991 in orderto provide consistent, long-term data on U.S. water quality, primarily via direct stream analysis.
Over the first decade of the program, 51 study units covering nearly half the land mass of thelower 48 states, and accounting for over 65 percent of water use for irrigation and drinking,
185 NOAA Fisheries Information System, Project, at http://www.st.nmfs.noaa.gov/fis/about/what.html.
186 InPort—National Fisheries Information System, About InPort—Description of the InPort System, at https://inport.noaa.
gov/inport/about.
187 Brock B. Bernstein and Stephen B. Weisberg, Southern California’s Marine Monitoring System Ten Years After the National
Research Council Evaluation, 81 Envtl. Monitoring & Assessment 3 (2003).
188 Id. at 3-4.
189 For a history of the Southern California Coastal Water Quality Research Project, see Mearns, Allen & Moore, supra note137.
190 Id. at 20.
191  Bernstein & Weisberg, supra note 187 at 4.
192 Id. at 5.
193 Southern California Coastal Water Research Project, About SCCWRP—History, at http://www.sccwrp.org/view.
php?id=456.

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received intensive cross-disciplinary analysis by USGS teams, leading to the publication of overa thousand reports. In the second decade budget cuts have mandated a reduction to 42 study
units, and the NWQA has shifted emphasis to national and regional analysis.194 The programattempts to balance the goal of comparability, achieved through uniform sampling and analyticalmethods, with that of precision, achieved by tailoring analysis to the particular characteristics ofeach Study Unit.195 Past NWQA work has focused on establishing a reliable baseline on stream
and watershed conditions, which has been disseminated through partnerships with over 1,500
stakeholder organizations and agencies.196

4.3. Develop regional information systems.
Rationale: One of the major challenges with regional ecosystem science is the lack of acommon source of information. There are no comprehensive ecological, social, and economic
databases that can be used to inform management decisions. In addition to lacking anappropriate database of information, data collection and storage that supports EBM decisions israrely standardized across researchers or agencies. This makes the creation and maintenance ofa searchable database difficult at best.
Example: Regional Information—Chesapeake Information Management System
Among the requirements of the 1983 Chesapeake Bay Agreement was coordination of technicalmatters and sharing of data among participating parties, including in the development ofmanagement plans.197 In 1996, the Program developed a publicly available repository of
coordinated information through the Chesapeake Information Management System (CIMS).198
The CIMS-run Chesapeake Bay Program website includes modeling tools and data sets createdby the now well-established Chesapeake Bay Program research apparatus, as well as serving as
a repository of useful information from outside sources for use by planners and conservation
professionals.199 It also features a wide range of less technical materials for the general public.

194 U.S. Geological Survey [hereinafter USGS], National Water Quality Assessment Program: Entering a New Decade of Investigations,
Fact Sheet No. 071-01 at 5 (2001), available at http://pubs.usgs.gov/fs/fs-071-01/pdf/fs07101.pdf.
195 Robert J. Gilliom, William M. Alley & Martin E. Gurtz, Design of the National Water Quality Assessment Program: Occurrence and Distribution of Water-Quality Conditions, USGS Circular 1112, available at http://pubs.usgs.gov/circ/circ1112/introduction.html.
196 USGS, The National Water Quality Assessment Program: Informing Water resource Management and Protection Decisions 6, available
at http://water.usgs.gov/nawqa/xrel.pdf.
197 1983 Chesapeake Bay Agreement, available at http://www.chesapeakebay.net/pubs/1983ChesapeakeBayAgreement.
pdf.
198 Chesapeake Bay Program, Adoption Statement on Strategy for Increasing Basin-wide Public Access to Chesapeake Bay Information(1996), available at http://archive.chesapeakebay.net/pubs/532.pdf.
199 Chesapeake Bay Program, Data and Tools, at http://www.chesapeakebay.net/dataandtools.aspx?menuitem=14872.

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Example: National Information Center—Digital CoastNOAA Coastal Services Center leads the Digital Coast effort with extensive input from its
partners, including the Coastal States Organization and the National Association of Counties.
The Digital Coast is focused on centralizing useful tools and information. It is intended to serve
as a repository of data, tools, models, and training for coastal decision-makers.200 One of its
main features is the Legislative Atlas, which maps the limits and boundaries of federal and statearea-based laws onto GIS maps.201 In the future, NOAA CSC intends to expand the datasets andmodels beyond NOAA sources.

200 NOAA, Coastal Services Center, Digital Coast Details, at http://www.csc.noaa.gov/digitalcoast/about.html.
201  Matt Freeman, NOAA’s GIS-Enabled Web Site Helps Resource Managers Navigate Legislation, ArcWatch (Dec. 2007)
http://www.esri.com/news/arcwatch/1207/noaa.html.

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IV. ACCOUNTABILITY & ADAPTIVEMANAGEMENT
A. 	Accountability and Adaptive Management in
Brief
Effective ecosystem-based management implementation requires that institutions participate
in and are held accountable to the regional programs. These regional programs also must be
held accountable to higher levels of government and ultimately to the communities that they
represent.
Closely tied to accountability is the need to have a management system that adapts to new
information and changing conditions. This chapter addresses both accountability and adaptive
management—cross-cutting issues that appear throughout the Handbook. It revisits andreferences some information previously presented, and adds additional examples and insight.
Institutions participating in regional ocean governance often lack a clear legal mandate or theauthority to achieve their region-wide objectives. Instead these institutions look to sector-based
laws, regulations, and policies to provide the basis for participation in regional governanceprograms. This may lead to conflicting objectives, lack of incentive, or inability to implement
the EBM objectives established by the regional governance body. This section examines
different approaches for creating accountability and establishing obligations for participation inregional governance programs.
Due to the wide range of stakeholders involved in varying aspects of marine management, bothindividual actors and institutions can be held accountable for implementation of ecosystem-basedplans. For this reason, mechanisms to increase accountability in ecosystem-based planning canbe categorized more easily as either legal or non-legal methods. Accountability mechanisms thatstrive to achieve compliance among the regulated community and state and local governments
can generally be divided into two main categories: a deterrence-based approach that inducescompliance through legal obligations, or “the sticks;” and a compliance-based approach thatoffers a range of incentives in an effort to increase cooperation, or “the carrots.”202
Adaptive management involves testing management approaches, evaluating the effectiveness ofdifferent approaches, and making adjustments to management approaches based on outcomes
202 David Markell, ‘Slack’ in the Administrative State and Its Implications for Governance: The Issue of Accountability, 84 Or.
L. Rev. 1 (2005).

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and lessons learned.203 This section does not cover all aspects of adaptive management. Instead,
it focuses on adaptive management as it relates to EBM governance and accountability. Of chief
importance to accountability are planning, monitoring, and evaluation.
Figure 9. Accountability and Adaptive Management Mechanisms204
ADAPTIVE MANAGEMENT
CYCLE

Im plem entatio n
Ecosystem
response

P la nn ing

E valu ation

ACCOUNTABILITY APPROACHES
I. G o vern ance S tructure
II. P lann ing
III. M on itoring and E va lua tion

I. Build accountability into governance structure by:
V e stin g de cisio n -m a kin g in a re g io na l b o d y,
R e q u irin g rep o rtin g to e nh a nce tra nsp a re n cy an dm o n ito r p ro g ress.
• C re a tin g stro n g p u blic p a rticipa tio n m ech an ism s.

••

II. Build accountability into plan bycreating:• C o n cre te g oa ls .
• M e a su ra b le in d ica to rs u p on
w h ich to ga u g e succe ss .

ROG…
Ecosystem response

M on itorin g

III. Monitoring and Evaluation
approaches include:• M o n ito rin g im p le m e n ta tio n .
• A d a p tin g b y resp on d in g to
im p le m e n ta tio n succe ss a nd fa ilu re s.

The adaptive management cycle (adapted from Ehlers (2003)) show the five essential steps ofthis iterative management approach. This cycle can be linked by color to the accountability
diagram—noting that both the regional ocean governance body and implementation
institutions may engage at each step of the adaptive management process.
203  For a list of adaptive management resources, see CAMNet, Resources and Abstracts Pertaining to Adaptive Management,
at http://www.adaptivemanagement.net/resources.php.
204 Adaptive management diagram, adapted from Charles N. Ehler, Indicators to Measure Governance Performance in Integrated Coastal Management, 46 Ocean & Coastal Mgmt 335 (2003).

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The accountability approaches described are divided into three categories:(1) Governance structure••••

Mandate EBM.
Adopt an adaptive management framework.
Vest decision-making authority in regional body.
Create strong public participation mechanisms.

(2) Planning requirements••

Create concrete goals and objectives.
Create measurable indicators.

(3) Implementation approaches•••

Evaluate implementation success.
Require reporting.
Create incentives to participate in program and implement plans and repercussions
for implementation failures.

B. 	Accountability and Adaptive Management in
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b. Accountability and Adaptive Management inPractice1.

Governance Structure

1.1. Mandate EBM.
Rationale: Two challenges of a voluntary soft-law EBM program are the inability to requireparticipation of essential institutions and the inability to hold participating institutions
accountable to the program. One way to create these obligations is to mandate critical elementsof EBM and require implementation. Some states have taken steps to mandate EBM andlike ecosystem approaches by enacting state laws. The existing state approaches vary in theirimplementation requirements and the types of approaches they take to achieve accountability.
To date, no federal EBM laws have been passed mandating federal cooperation with EBM
implementation.205 However, federal laws such as the Coastal Zone Management Act offer
insight into the creation of a federal EBM system.206
Example: Building a Plan and Policy on Existing Law—New York Ocean and Great Lakes
Ecosystem Conservation Act
New York enacted a short law declaring that the policy of the state “shall be to conserve,
maintain and restore coastal ecosystems so that they are healthy, productive and resilient andable to deliver the resources people want and need.”207 The Act lists a set of principles thatshould guide coastal ecosystem governance,208 and creates a Conservation Council tasked with,among other things, “[defining] and implement[ing] an adaptive approach building upon existinglaws and programs to advance activities that affect coastal ecosystems in order to ensure thecoexistence of healthy ecosystems and human activities.”209 It calls upon the Council to integrate
and coordinate EBM with existing laws and programs; develop guidelines to achieve theprinciples and policies; and facilitate regional cooperation and coordination to address complex
issues that cross political and jurisdictional boundaries.

205 For an analysis of the need for an EBM mandate, see Heather Leslie, Andrew A. Rosenberg & Josh Eagle, Is a New Mandate Needed for Marine Ecosystem-Based Management? 6 Frontiers Ecol. & Envt. 43 (2008).
206 See ELI, Expanding the Use of Ecosystem-Based Management in the Coastal Zone Management Act (2009), available at http://www.eli.
org.
207 New York Environmental Conservation Law §14-0103(2) (2006).
208 §14-0103(3).
209 §14-0109.

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In addition to these broad EBM objectives, the Act specifically tasks the Council with creatinga report to the governor and legislature that defines needed executive and legislative actions,
includes a plan, schedule and funding activities to achieve the actions, creates an ocean andcoastal resource atlas, and establishes a research agenda, among other things.210 The report was
to be delivered in 2008: currently a draft report is available for public comment. Altogether,
New York’s law defines a policy that may help agencies focus on EBM objectives more
readily. It also requires the Conservation Council to take specific actions toward developing
EBM. However, the law falls short of creating a comprehensive EBM program with robust
accountability measures.
Example: Developing a Program for Restoration—Puget Sound Partnership
At the outset the law establishing the Puget Sound Partnership recognizes that “[l]eadership,
accountability, government transparency, thoughtful and responsible spending of public funds,
and public involvement” are needed to achieve a healthy Puget Sound.211 Like the New Yorklaw, the Washington law expresses a vision of EBM in the legislative findings. However, the law
expressly states that the Partnership will have neither regulatory authority nor implementation
authority over regulatory programs, limiting the breadth of its EBM mandate. Instead, the law
creates a Partnership tasked with developing and guiding the implementation of an action agenda
to restore the Sound by 2020, allocating funds, providing progress reports, setting priorities
and benchmarks, and adopting and applying accountability measures.212 Some accountability
measures are built into the law, including reporting provisions, public participation provisions,planning requirements, and implementation requirements that use incentives and funding tocreate accountability (see subsequent sections for descriptions).
Example: Developing a New Regulatory Framework—Massachusetts Oceans Act
The Massachusetts Oceans Act goes furthest in establishing a regulatory system for the ocean
based upon an ocean plan. It vests decision-making (including regulatory) authority in thestate Secretary of Energy and Environmental Affairs. According to the Massachusetts Ocean
Act, “[u]pon the secretary’s adoption of an ocean management plan, all certificates, licenses,
permits and approvals for any proposed structures, uses or activities in areas subject to the ocean
management plan shall be consistent, to the maximum extent practicable, with the plan.”213 The
Secretary is also vested with the authority to promulgate regulations in order to implement,
oversee, and enforce plan development. The regulations must include “provisions for the reviewof the ocean management plan, its baseline assessment and the enforceable provisions of relevant
statutes and regulations at least once every 5 years.”214
210
211 
212
213 
214

§ 14-0111.
ESSB 5372 § 1(d) (Wash. 2007).
§ 5(a).
Mass Gen. Laws ch. 21A § 4C(e) (2008).
§ 4C(h).

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The ocean management plan also will be incorporated into the existing state coastal zone
management plan.215 By making the ocean plan enforceable through these measures,
Massachusetts will have the authority to enforce the plan against federal agencies, state or
local government activity conducted with federal assistance, and any activities under a federal
license or permit “affecting any land or water use or natural resource of the coastal zone”216 inaccordance with the federal consistency provisions of the CZMA (see next).
Example: Ensuring Federal Consistency—Coastal Zone Management Act
According to the Coastal Zone Management Act, federal agency actions that affect the coastalzone must be consistent with the enforceable policies of the state.217 The enforceable policies
must be identified as part of the state’s coastal program, which must be approved by NOAA.218
This provision provides a legal hook for ensuring federal participation in a state program andcompliance with the enforceable policies of the coastal state. It also allows states to pursue legal
action for federal agency failure to comply with its enforceable policies.219
Example: Mandating State and Federal Cooperation—Atlantic Coastal Fisheries Cooperative
Management Act
The Atlantic Coastal Fisheries Cooperative Act is a federal law creating a cooperative interstate
management program through the Atlantic States Marine Fisheries Commission.220 In its
findings, Congress recognized that “[b]ecause no single governmental entity has exclusive
management authority for Atlantic coastal fishery resources, harvesting of such resources isfrequently subject to disparate, inconsistent, and intermittent State and Federal regulationthat has been detrimental to the conservation and sustainable use of such resources and to
the interests of fishermen and the Nation as a whole.”221 The law requires the Secretaries
of Commerce and the Interior to develop and implement a program to support the FisheriesCommission’s management efforts.222 It also creates a process for linking management between
state waters and the exclusive economic zone—in the absence of a Magnuson-Stevens Fisheryand Conservation Management Act plan, the Secretary of Commerce has the authority to develop
a plan that is compatible with a State Fisheries Commission plan.223

215 Massachusetts Ocean Act § 23 (referencing Mass Gen. Laws ch. 21A § 4(A)).
216 16 U.S.C. §§ 1456(c)(1)(A) (2005).
217 §§ 1456(c)(1)(A), 1456(d), 1456(c)(3)(A).
218 §1455(d).
219 For more information about EBM and the Coastal Zone Management Act, see ELI, Expanding the Use of Ecosystem-BasedManagement in the Coastal Zone Management Act, supra note 206.
220 16 U.S.C. § 5101 et seq. (1993).
221  § 5101(a)(3).
222 § 5103(a).
223  § 5103(b).

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The statute also creates requirements for the coastal states. It requires the Fisheries Commission
to develop fishery management plans, and coastal states must implement and enforce the plan
as it pertains to each state.224 If the Secretary of Commerce finds that a state has failed in its
implementation and enforcement responsibility, the Secretary is to declare a moratorium on
fishing in the non-complying state’s waters until compliance is achieved.225
The law, therefore, creates a coordinated interstate and federal program that explicitly determines
lead authorities, defines management obligations, and creates a system to address noncompliance. A similar approach could be adopted in the development of a regional EBM law.

1.2. Adopt an adaptive management framework.
Rationale: In order to manage effectively in the face of information gaps, scientific uncertainty,
and changing conditions, EBM programs should adopt an adaptive framework.226 This
includes creating an iterative system of planning and implementation; monitoring ecosystem,
society, and economic response; evaluating results; and developing or amending the plan andpossibly the governance system to address management successes and failures. This section
describes overall management frameworks, several elements of which relate directly to specificaccountability approaches. For additional information and examples related to adaptive
management and planning, see Chapter II, Ecosystem Planning, Section 1.3.
Example: Adaptive Management Strategy—Chesapeake Bay Program Action Plan and Puget
Sound Partnership Action Agenda
The Chesapeake Bay Program has, over its more than 25 years of existence, adapted to changing
conditions and new needs through the development of new plans, strategies, and programs.
However, until recently, it has not adopted a specific adaptive management framework.
Recently, the Program utilized Kaplan and Norton’s Five-Stage Model of Adaptive Management
to develop an adaptive management strategy.227 The five steps include: (1) strategy development;(2) translation of the strategy; (3) plan operations; (4) monitoring and learning; and (5) testing
and adapting the strategy. It measures the success of its strategies through the use of “realistic
annual targets,” which are then communicated using Chesapeake Bay Program “dashboards”(see Section 2.3 for a discussion of these indicators).
224 § 5104
225 §§ 5105-5106.
226 For a brief discussion of EBM and adaptive management, see McLeod et al., supra note 1; see also Heather M. Leslie & Karen
L. McLeod, Confronting the Challenges of Implementing Marine Ecosystem-Based Management 5 Frontiers Ecology & Envt (2007).
227 Chesapeake Bay Program, Chesapeake Adaptive Management Model, at http://cap.chesapeakebay.net/managementmodel.htm (citing Robert S. Kaplan & David P. Norton, Mastering the Management System, Harvard Business Review (2008).

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In Priority E of its Action Agenda, the Puget Sound Partnership identifies the need for a
performance management system that “includes adaptive management, coordinated monitoring,accountability for action, and coordinated data management.”228 The Partnership strives tostrengthen accountability by assessing progress, ensuring implementation, and adjusting efforts
in order to improve effectiveness.229 The Puget Sound Partnership plans to adopt a “Plan/Do/
Assess/Adapt framework,” using targets and benchmarks developed by the Science Panel todetermine how to enhance future efforts. Through the use of this framework, the Partnershipalso aims to increase transparency.230

1.3. Vest decision-making authority in a regional body.
Rationale: Vesting decision-making authority in a regional body is another legal mechanismthat holds the potential to strengthen accountability. This approach could increase transparency
and openness, as well as improve consistency and coordination. In an analysis of potential
marine zoning in California, Sivas and Caldwell note, however, that stripping agencies of their
historical authority may lack political viability.231
Example: Commission Authority—Delaware River Basin Commission
Created by state compact in 1961, the Delaware River Basin Commission is tasked with
developing and effectuating a river basin plan, allocating water resources among the statesignatories, assessing rates and charges on resources users, and approving or denying projects
that may impair water resources or conflict with the comprehensive plan.232 The jurisdiction of
the Commission includes the designated river basin and areas outside the basin when “necessaryor convenient to effectuate its powers and duties within the basin.”233 Before establishment of
the Commission, 43 state agencies, 14 interstate agencies, and 19 federal agencies exercisedauthority in a fragmented manner.234

228 Puget Sound Action Agenda, supra note 26 at 70.
229 Id. at 71.
230 Id. at 72.
231 Deborah A. Sivas & Margaret R. Caldwell, A New Vision for California Ocean Governance: Comprehensive EcosystemBased Marine Zoning, 27 Stan. Envtl. L.J. 209 (2008). In addition, the authors argue that reducing the number of decision-making
entities may reduce the incorporation of accumulated technical, scientific, and policy expertise. Standardization of the guidelines
used by each agency may be a way to attain a more comprehensive and coordinated system, without resorting to reduction of
agency authority.
232 Delaware River Basin Compact, Art. 3.
233  Art. 2.7.
234 Delaware River Basin Commission, DRBC Overview, at http://www.state.nj.us/drbc/over.htm.

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Example: Agency Oversight Authority—Massachusetts Ocean Management Initiative
While the Massachusetts Oceans Act does not vest all ocean decision-making authority in
one regional body or agency, it does give the Secretary of Energy and Environmental Affairs
oversight, coordination, and planning authority.235 It is the Secretary’s responsibility to workin consultation with an ocean advisory commission and ocean science advisory council todevelop the ocean management plan.236 The Secretary is tasked with promulgating regulations
to implement, administer and enforce the law.237 All certificates, licenses, permits, and approvals
for uses, structures, and activities must be consistent with the plan.238 In this way, a single
agency is held responsible for both plan development and ensuring its implementation.
Example: Sector-Based Authority—California Marine Life Protection Act
Since 1870, the California Fish and Game Commission has played a role in the management of
the state’s fish and wildlife resources. Under the Marine Life Protection Act, the Commission
must approve a master plan that guides implementation of the Marine Life Protection Program,decisions affecting new marine protected area sites, and major modifications to existing marine
protected areas.239 In addition to adopting a master plan, the Commission is responsible for
implementing the program, to the extent that funds are available.240 The Commission mustalso consider and act upon petitions from any interested party seeking to add, delete, or modify
marine protected areas.241
While the Commission is vested with the authority to approve and implement the master
plan, the California Fish and Game Department is responsible for preparing the plan.242 The
Department must convene a team to assist with plan development.243 The Department must
additionally hold workshops in each biogeographical region in order to incorporate theviews of residents and interested parties.244 In this way, the Department is responsible forplan development, while the Commission is vested with the authority for plan approval andimplementation. This process is well-underway in California.

235
236
237
238
239
240
241 
242
243 
244

Mass. Gen. Law ch 21 § 4C(a) (2008).
§ 4C(a).
§ 4C(g).
§ 4C(e).
Cal. Fish & Game Code, § 2855 (2004).
§ 2859.
§ 2861.
§ 2855.
§ 2855.
§ 2857.

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1.4. Create strong public participation mechanisms.
Rationale: Public opinion, whether it is positive or negative, can be a powerful motivator inpromoting accountability. Public opinion is often a driving force behind the actions of bothgovernment and industry, and can help generate the political will necessary to inspire action.
Considering the wide range of stakeholders with a vested interest in sustainability of the marine
environment, public opinion holds the potential to create both short-term and long-term changes
in policy implementation and accountability.
Along with reporting (described above), another approach to achieving accountability is theinclusion of public comments in the planning and decision-making process. Involving the
public can ensure that institutions account for stakeholder interests, and it creates greatertransparency and openness. Notice and comment can happen at several stages of EBM
governance—during the development of the regional governance system (e.g., Puget Sound
Partnership), development of regional plans (e.g., Massachusetts Ocean Partnership), andimplementation of regional plans through sector-specific agencies (e.g., federal fisheries regional
councils).
Citizen suits are legal mechanisms that typify the “sticks” approach to accountability. Private
citizens can either sue people alleged to be in violation of regulatory obligations, or they cansue government agencies alleged to have failed to perform mandatory duties.245 Citizen suits
against government agencies have resulted in changes ranging from the creation of entirely new
regulatory programs to a shift in focus, significant expansion, or accelerated implementation ofexisting regulatory programs. Citizen suits publicize the shortcomings of government agencies,
compelling these institutions to act responsibly even absent a potential lack of political will or
popularity.
Example: Connecting via the Internet—“Thank You Oceans” Campaign
New web-based tools are changing how governing bodies communicate with the public.
Internet tools such as blogs, email listservs, podcasts, and social networking sites provide new
avenues to connect ocean governance with the public, helping to achieve better accountability
through information-sharing. California’s “Thank You Oceans” Campaign, while not EBMspecific in focus, provides one example of using technology to communicate with the public.246
The Campaign’s purpose is “to instill in Californians a sense of personal connection andresponsibility to our ocean and coast.”247 Any member of the public can join the listserv, which
245 Robert Glicksman, The Value of Agency-Forcing Citizen Suits to Enforce Nondiscretionary Duties, 10 Widener L. Rev. 353(2004).
246 ThankYouOcean.Org, About ThankYouOcean.Org, at http://www.thankyouocean.org/about.
247 Id.

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sends out announcements about ocean-related government decisions, conservation issues
and opportunities, and general ocean information. By website and listserv it announces theavailability of various podcasts—ranging from a status report on the health of the red abalone
population to announcements about how the public can get involved with volunteer activities at
the National Marine Sanctuaries Program.
Example: Participation throughout the Process—Puget Sound Partnership and California
Marine Protected Area Network
Before creation of the permanent Puget Sound Partnership under state law, Washington’s
Governor created a Partnership Advisory Commission by executive order to develop
recommendations for a permanent Partnership. During development of the recommendations
leading to the state law, the Partnership included public participation and comments, which were
included in the final report presented to the Governor.
With the creation of the permanent Partnership, focus has shifted to developing an Action
Agenda. To help develop the Agenda, the Partnership first identified six goals, and held topic
forums on these issues. Small groups of science and policy experts helped frame the discussion
by developing discussion papers. The papers were utilized to engage topic forum participants
and online public reviewers. The comments will be included in the action plan agenda appendix
and will inform the Action Agenda’s development.248 Once created, the public will haveaccess to the Action Agenda.249 The public also will have an opportunity to participate at theimplementation stage, providing input in the development of standards and processes with which
to measure the success of Action Agenda implementation.250
The California Marine Life Protection Act (MLPA) tasked the California Department of Fish
and Game with preparing a plan for establishing an integrated system of protected areas anda coordinated management strategy.251 It directed the Department to convene a master planteam, composed of scientists and state agency representatives, so as to best include the scientificexpertise on marine protected areas in the new plan.252 It also required that the plan be “preparedwith the advice, assistance, and involvement of participants in the various fisheries and theirrepresentatives, marine conservationists, marine scientists, and other interested persons,”
including specific state and federal agencies.253

248 Puget Sound Partnership, Action Agenda: Meetings and Workshops, at http://www.psp.wa.gov/aa_meetings_past_tf.php.
249 ESSB 5372 § 13(5) (Wash. 2007).
250 § 17(2).
251  Cal. Fish & Game Code, § 2855 (2004).
252 § 2855(b).
253  § 2855(b)(4).

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After failed attempts to initiate the program, in August of 2004, the Department of Fish andGame, California Resources Agency, and the Resources Legacy Fund began a new effort,
referred to as the MLPA Initiative, to implement the Marine Life Protection Act.254 The initiative
divided the state into five study regions to be addressed independently rather than addressing
the state as a single unit.255 In light of this structure, the initiative established a blue-ribbon task
force composed of public leaders selected by the California Resources Agency to oversee theregional projects, prepare recommendations for coordinating marine protected area managementwith federal agencies, and direct expenditure of initiative funds.256 The initiative also establishedmaster plan science advisory teams for each study region.257 These teams are composed of thestate agency representatives and scientists required by the MLPA and are tasked with providing
the scientific knowledge and judgment needed to complete and implement the master plan.258
Additionally, the initiative established regional stakeholder advisory groups, composed ofindividuals selected by the Director of the Department of Fish and Game, to provide local
knowledge to the planning and implementation process.259
The MLPA Initiative has a four-step process for implementing the Marine Life Protection
Act.260 First, the regional stakeholder groups and science teams must develop regional profiles,
convene regional planning processes, and identify alternative approaches to marine protectedarea networks in their respective regions.261 Second, after evaluating new and existing marine
protected areas, each regional stakeholder group must develop alternative packages of marine
protected areas for its region.262 Third, the blue-ribbon task force evaluates these proposals,
identifies a preferred alternative, and submits all proposals to the California Fish and Game
Commission.263 The Commission then will prepare regulatory analyses of the proposals.264
Example: Public Forums and Meetings—Massachusetts Ocean Management Initiative andCalifornia Ocean Protection Council
Under the Massachusetts Oceans Act, the Secretary of Energy and Environment Affairs is
required to hold public meetings related to the ocean management plan and to provide publicaccess to the draft plan in electronic and printed form.265 In response to this requirement the
Secretary hosted 18 public forums to incorporate public comments during plan development
254
255
256
257
258
259
260
261 
262
263 
264
265

Cal. Dept. of Fish & Game, California Marine Life Protection Act: Revised Master Plan for Marine Protected Areas 9 (2008).
Id. at iii.
Id. at 15.
Id. at 16.
Id.
Id.
Id. at iii.
Id.
Id.
Id.
Id.
Mass. Gen. Law §§ 4C(c)(ii), (g).

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and intends to host another series of meetings once the plan is finalized.266 Likewise, under the
California Ocean Protection Act, the Ocean Protection Council must make its meetings open to
the public.267 In addition, the Council has the authority to sponsor conferences, symposia, andother public forums to seek public input.268
Example: Sector-Based Public Participation—Fishery Management Councils
In accordance with the Magnuson-Stevens Act, the fisheries management councils conduct
public hearings to allow for public comments on fishery management plans, amendments to suchplans, and their implementing regulations.269 Within 45 days of the close of a 60-day publiccomment period, the Secretary, in consultation with a given Council, must analyze the comments
and publish the final regulations. The public must also be provided opportunity to comment on
the administration of the plans.270
Example: Citizen Suit Provisions—Endangered Species Act
Citizen suit provisions in federal and state statutes usually provide any person the right tofile suit against government agencies and possibly private parties for violating the law. Suchprovisions give the public a direct role in the enforcement of laws and therefore create astrong accountability mechanism. To date, no state EBM laws contain citizen suit provisions.
However, citizen suits under the Endangered Species Act (ESA) provide an example ofenforcement of accountability that could be applied more broadly in the implementation of
ecosystem-based planning.271 Under Section 11(g), “any person may commence a civil suiton his own behalf” against private parties and overseeing federal agencies for violations of theAct. This includes the ability to file suit against the government for failure to perform nondiscretionary duties.272 This provision along with the creation of mandatory deadlines was added
to the Act by Congress in 1982 due to concern about the slow pace of listing decisions.273 Suchan approach could be applied in the EBM context: an EBM law could include a citizen suitprovision that would allow citizens to help enforce EBM plans.

266 For more information, see Massachusetts Ocean Coalition, at http://www.massoceanaction.org/; see also Massachusetts
Office of Coastal Management, The Massachusetts Ocean Management Initiative, at http://www.mass.gov/czm/oceanmanagement/index.htm.
267 Cal. Pub. Res. Code. § 35612(a) (2004).
268 § 35612(b).
269 MSA, § 313; 16 U.S.C. § 1862 (2007).
270 § 304; § 1854.
271  For a general summary of the Endangered Species Act, see Pamela Baldwin, Eugene H. Buck & M. Lynne Corn, The
Endangered Species Act: A Primer, CRS Report for Congress Order Code RL31654, available at http://www.enviro-lawyer.com/
ESASummary.pdf.
272 Endangered Species Act, § 11(g)(C); 16 U.S.C. § 1540(g)(C) (2000).
273  Sarah Matsumoto et al., Citizen’s Guide to the Endangered Species Act (2003), available at http://www.earthjustice.org/library/reports/Citizens_Guide_ESA.pdf.

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2.

Planning Requirements

This section overlaps considerably with the Chapter II, Ecosystem Planning but focuses morenarrowly focuses on the relationship of goals, objectives, and indicators to developing an
accountable system of EBM governance.

2.1. Create concrete goals and objectives.
Rationale: One step in the system of adaptive management that is critical for accountability
and often overlooked, is the evaluation stage of the iterative management cycle. However, to beable to evaluate a management program’s success, it is first necessary to have a plan of actionthat includes concrete goals and measurable objectives to allow evaluation.274 Preferably, atleast some of the measurable objectives will be quantitative in nature.
For additional information, see Chapter II, Ecosystem Planning, Section 4 for discussion.
Example: Land Use Goals and Objectives—Chesapeake Bay Program
Chesapeake 2000 recognized the role that sound land use plays in watershed health and EBM in
general. One of its stated goals was to “develop, promote and achieve sound land use practices
which protect and restore watershed resources and water quality, maintain reduced pollutant
loadings for the Bay and its tributaries, and restore and preserve aquatic living resources.” Morespecific methods by which to achieve this goal were detailed, one of which was the acquisitionand permanent preservation from development of 20 percent of the land area in the watershedby 2010. This amounted to 6.92 million acres – and as of July 2007, 6.88 million acres had beenpreserved.275
Example: Management Goals and Objectives—Gulf of Mexico Alliance
The Gulf of Mexico Alliance created the Implementation Activities Matrix to express theimplementation strategy for the Action Plan. The Matrix lists the specific goals and outcomes
described in the Action Plan and also has a column—“What will you do/deliver?”—that
describes concrete actions that will achieve the goal and outcome. For example, one of the water
quality goals is to improve government efficiency. To achieve this goal, one specific activity is
to host an annual Gulf of Mexico Forum. The column of specific commitments states that EPA
274 Charles N. Ehler, Indicators to Measure Governance Performance in Integrated Coastal Management, 46 Ocean & Coastal
Mgmt 335 (2003); Nugent & Profeta, supra note 13 at 6.
275 Chesapeake Bay Program, Chesapeake Bay Health and Restoration Assessment: A Report to the Citizens of the Bay Region 27 (2007),
available at http://www.chesapeakebay.net/content/publications/cbp_26038.pdf.

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will co-lead and co-sponsor the event and that Mississippi will participate and provide in-kind
support.276
Example: Invasive Species Goals—Gulf of Maine Council
The Gulf of Maine Council identifies long-range, mid-term, and short-term outcomes in its
Action Plan to create accountability and to help measure progress in achieving its ultimate goals.
For example, the Council has a goal of protecting and restoring habitats, which includes theobjective of addressing invasive species. One stated short-term (few years) goal is for coastallawmakers to have an increased understanding of the marine invasive species threats. One midterm (several years) goal is for regulators to take legal approaches to minimize adverse impacts
of invasive species. And the expressed long-term (more than a decade) goal is to minimize theadverse effect of marine invasive species on the coastal environment.
Example: Legal Basis for Concrete Goals and Objectives Development—Puget Sound
Partnership
Washington State vested the Puget Sound Partnership with responsibility for developing anaction agenda that would “[prioritize] necessary actions, both basin-wide and within specificareas, and [create] an approach that addresses all of the complex connections among the land,
water, web of species, and human needs. The action agenda will be based on science and include
clear, measurable goals for the recovery of Puget Sound by 2020.”277 Specifically, the action
agenda must include “measurable outcomes for each goal and objective specifically describing
what will be achieved, how it will be quantified, and how progress towards outcomes will bemeasured. The action agenda shall include near-term and long-term benchmarks designed toensure continuous progress needed to reach the goals, objectives, and designated outcomesby 2020” and “identify the agency, entity, or person responsible for completing the necessary
strategies and actions, and potential sources of funding.”278
Example: Legal Basis for Indicator Development—Massachusetts Oceans Act
In planning for Massachusetts’ coastal development, the Massachusetts Oceans Act requiresthat “[t]he plan shall: (i) set forth the commonwealth’s goals, siting priorities and standards for
ensuring effective stewardship of its ocean waters held in trust for the benefit of the public.”279

276
277
278
279

Gulf of Mexico Alliance, Implementation Activities Matrix, supra note 79.
ESSB 5372 §§ 1, 2(a) (Wash. 2007).
§§ 12, 13.
Mass. Gen. Law ch 21A § 4C(d) (2008).

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2.2. Create measurable indicators.
Rationale: Measurable indicators should be designed to allow evaluation of the program’s
success at achieving its concrete goals and measurable objectives. The Organization for
Economic Cooperation and Development lists two main requirements for indicators (1) thatthey should “[r]educe the number of measures which normally would be required for an exact
presentation of a situation;” and (2) that they “[s]implify the process of communication to
managers, stakeholders and communities.”280
Four main types of indicators are (1) input indicators related to resources allocated to thegoal; (2) process indicators; (3) output indicators indicating deliverables to the program; and(4) outcome indicators demonstrating on-the-ground results.281 Indicators should relate toenvironmental results as well as socioeconomic results.282
For a list of examples and descriptions, see Chapter II, Ecosystem Planning, Section 4.3,
“include specific indicators to measure success,” which includes the following examples:••••

Fisheries Indicators—The Chesapeake Bay, describing the development of indicatorsfrom a single-species approach to ecosystem-based fisheries management approach.
Water Quality Indicators—The Everglades, describing water quality indicators used tomeasure the progress of restoration efforts in the Everglades.
Land Use Indicators—Gulf of Maine Council, describing the development of indicators
for point sources, employment densities, population densities, and impervious surfaces asa way to measure mitigation of coastal development impacts.
Management Indicators—MPA Guidebook, providing a process for selecting indicatorsand listing biophysical, socioeconomic, and governance indicators.

280 Robert E. Bowen & Cory Riley, Socio-Economic Indicators & Integrated Coastal Management, 46 Ocean & Coastal Mgmt 299(2003) (citing the Organization for Economic Cooperation and Development).
281  Ehler, supra note 274 at 337.
282 Bowen & Riley, supra note 280. See Bowen & Riley for a table of socio-economic indicators. Id. at 307.

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3.

Implementation Approaches

3.1. Evaluate implementation success.
Rationale: The adaptive management cycle includes evaluation of implementation success.
The purpose of evaluation, as described by Ehler (2003), is to use the information gathered to(1) improve management performance and (2) as a way to create accountability in the program.
Example: Chesapeake Bay Realistic Annual Targets and Dashboards
Part of the Bay Program’s adaptive management approach is “realistic annual targets,” which
provide both an evaluation of the success in reaching a quantifiable objective and a projectionof upcoming annual achievements toward the goal. The Bay Program uses the “dashboards”
to communicate these results and provide information about why the program is succeeding or
missing its targets as a way of informing the public. The Bay Program’s submerged aquaticvegetation (SAV) efforts provide one example of this adaptive approach. Its current measurable
objective is to plant 1,000 acres of new SAV beds between 2003 and 2008 in accordance withthe plan, Chesapeake 2000. The realistic annual targets indicate the level of success and future
realistic estimates of progress. As of 2007, the Program had achieved 14 percent of this goal
(140 acres of new SAV beds) and intends to achieve 16 percent of this goal by 2009 (160
acres).283 The SAV planting dashboard provides a one-page easy-to-understand public document
mapping performance in relation to the actual objective, providing a brief strategic analysis
including challenges and actions needed, and a summary of project funding.284

283  For a complete list of realistic annual targets, see Chesapeake Bay Program, Goals, Measures and Progress, at http://
cap.chesapeakebay.net/progress.htm.
284 Chesapeake Bay Program, Submerged Aquatic Vegetation Planting, CAP Version 1.0 (2008), available at http://cap.chesapeakebay.net/docs/SAVFinalv2.pdf.

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3.2. Require reporting.
Rationale: One mechanism for achieving accountability in EBM is through reporting
requirements. These requirements can be enforced through a legal mandate or could beinstituted through a voluntary agreement. Reporting requirements can apply to a regulated
entity (e.g., grantee reports to regional governance body), to an institution (e.g., sector-based
agency report to regional governance program), or to the regional governance program (e.g.,reports to the legislature(s) or to the public). Internal reporting allows the EBM program toevaluate the effectiveness of plan and program implementation. External reporting helps
link EBM programs to the larger political process and to the public, creating an external
accountability mechanism. The effectiveness of reporting requirements, though, often depends
upon establishing meaningful indicators for evaluating success as described in the previous
section.
		
Example: Internal Reporting—Puget Sound Partnership
According to Washington state law, “[a]ny entity that receives state funds to implement actions
required in the [Puget Sound Partnership] action agenda shall report biennially to the council on
progress in completing the action and whether expected results have been achieved within thetime frames specified in the action agenda.”285
Example: External Reporting to Governor and Legislature—Puget Sound Partnership
According to state law, the Puget Sound Partnership must report to the Governor and the statelegislature every two years through a State of the Sound Report. The report must include thefollowing elements:(a) An assessment of progress by state and nonstate entities in implementing theaction agenda, including accomplishments in the use of state funds for action
agenda implementation;(b) A description of actions by implementing entities that are inconsistent with theaction agenda and steps taken to remedy the inconsistency;(c) The comments by the panel on progress in implementing the plan, as well as
findings arising from the assessment and monitoring program;(d) A review of citizen concerns provided to the partnership and the disposition of
those concerns;(e) A review of the expenditures of funds to state agencies for the implementationof programs affecting the protection and recovery of Puget Sound, and anassessment of whether the use of the funds is consistent with the action agenda; and285

ESSB 5372 § 16 (Wash. 2007).

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OCEBM Handbook(f) An identification of all funds provided to the partnership, andrecommendations as to how future state expenditures for all entities, including thepartnership, could better match the priorities of the action agenda.286
The Science Panel must separately comment on the state of ecosystem health and on the current
understanding of the science of the Sound and useful strategies.
Example: Independent Review—Puget Sound Partnership
In addition to the Puget Sound Partnership’s biennial State of the Sound Report, the state law
creates an independent system of review. According to the law, the Joint Legislative Audit
and Review Committee (JLARC) must review the Partnership’s implementation of the Action
Agenda in 2011. JLARC will also conduct two performance reviews in 2011 and 2016, which
will include:(a) A determination of the extent to which funds expended by the partnership orprovided in biennial budget acts expressly for implementing the action agenda
have contributed toward meeting the scientific benchmarks and the recovery
goals of the action agenda; (b) A determination of the efficiency and effectivenessof the partnership’s oversight of action agenda implementation, based upon theachievement of the objectives as measured by the established environmental
indicators and benchmarks; and(c) Any recommendations for improvements in the partnership’s performance andstructure, and to provide accountability for action agenda results by action entities.287
Example: External Report—Chesapeake Bay Health Report Card
The Chesapeake Ecocheck program, a collaboration between NOAA and the University of
Maryland, develops an annual report card that rates 15 regions using six indicators to determine
an index of overall health, water quality and biota. The six indicators focus on water quality
including water clarity, chlorophyll a, dissolved oxygen and biotic health including the benthic
community, aquatic grasses, and the phytoplankton community. In addition to rating eachregion, the report card rates the overall health of the Bay. The report card includes a map with
the identified grades, regional rankings and summaries, comparisons, and trends. For example,
in 2007, the overall Chesapeake Bay received a C-. The Upper West Shore of the Bay received
the highest grade, a B, and the York River and Patuxent River tied for low scores with D-. The
report describes the Upper Western Shore as being greatly improved due to aquatic grasses,
benthic community and chlorophyll a conditions but notes that the health of this region varies
greatly by year. In contrast, the York River experienced declines in chlorophyll a, aquatic
grasses, and the benthic community and received its lowest score since 1991.
286
287

§ 19.
§ 21.

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3.3. Create incentives to participate in the program and implement plans and establish
repercussions for implementation failures.
Rationale: Bringing regional constituents together, developing a plan, and implementing thatplan are all challenges to achieving successful EBM. Ensuring implementation of a regional
plan is central to the issue of accountability. Several examples exist of well-developed plansthat fall short of implementation objectives. Developing appropriate incentives are one way to
encourage implementation.288 Such incentives linked to appropriate repercussions for failure
could bolster accountability to regional plans.
Example: Funding, Implementation Support, and Public Engagement—Puget Sound
Partnership
The state law creating the Puget Sound Partnership includes several accountability mechanisms.
It allows the Leadership Council to “hold management conferences with implementing entities toreview and assess performance in undertaking implementation strategies.”289 If the LeadershipCouncil finds inconsistency with the Action Agenda it has the authority to support and assist
the implementing entity in order to remedy the inconsistency.290 If substantial noncomplianceis found, the Leadership Council is required to provide notice of this finding and the Executive
Director or the Council must work with the entity to remedy the non-compliance. In theevent a remedy is not found, the Council is to hold a public hearing to present its findings andproposed actions. If the entity still does not comply, the Council must issue written findings andhas the authority to recommend that the entity be ineligible for state financial assistance until
noncompliance is remedied.291
The Washington law creates accountability through financial incentives and disincentives. The
law states that projects and activities that are incompatible with the action agenda are not to
be funded and that funding should strategically targets priority action agenda items.292 The
Partnership is tasked with providing funding for Puget Sound restoration and is required toensure accountability in expenditure of the funds.293 Fund recipients must utilize the funds ina way that is most consistent with action agenda priorities. The Partnership may also suspend
funds or create conditions for future funding if the funds were not spent in a manner consistent
with the grant obligations.294
288 See Nugent and Profeta, supra note 13 for a brief discussion of the need for federal incentives to illicit meaningful participation in an EBM program.
289 ESSB 5372 § 17(2) (Wash. 2007).
290 § 17(2).
291  § 17(3).
292 § 16(1).
293  § 15(2).
294 § 15(3).

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V. CUMULATIVE IMPACTS
A. 	Cumulative Impacts In Brief
Scientific understanding of marine ecosystems and the direct and indirect impacts of humanactivities is expanding rapidly.295 Without good scientific information, accurately predicting
the consequences of cumulative impacts—i.e. added activities, multiple activities, or repetitive
activities—on particular ecosystems can be difficult. While this is one of the greatest obstacles
to identifying and minimizing human impacts on marine ecosystems, it is not the only one.
Marine economic sectors are largely regulated independently, making cross-sector evaluations
and ecosystem management complicated. In most sectors, sustainable limits on pollution andresource extraction are poorly defined. Additionally, few federal or state laws require explicit
consideration of cumulative impacts, and among those that do, the depth and breadth of analysis
are limited. Finally, guidelines for setting comprehensive but practical boundaries for cumulative
impacts analyses have yet to be developed.
EBM is more than a restructured governance system. It is a management approach that seeks tominimize human impacts to the marine environment that result in loss of the ecosystem services
upon which humans depend. In the EBM scientific consensus statement, scientists state that“[e]cosystem-based management differs from current approaches that usually focus on a single
species, sector, activity or concern; it considers the cumulative impacts of different sectors.”296
In this context, “cumulative impacts” refers to the net effect of all human activities—a broader
definition than the typical legal definition that considers cumulative impacts as those impacts thatare alone insignificant but together equate to a significant impact.
Effective management of the marine environment should do more than consider cumulative
impacts. Consideration of cumulative impacts should lead to decisions that minimize these
impacts and allow marine ecosystems to remain healthy and resilient. The impacts of humanactivity on the environment do not occur in isolation. A single action may have minor
consequences on a marine ecosystem but still have a significant cumulative impact whencombined with the effects of other actions. This impact may be “additive,” where a small
addition triggers a noticeable change due to the accumulation of prior additions; or “synergistic,”
where the separate impacts combine to create an altogether different effect on the environment
than any single activity.297 In either case, a critical component of ecosystem-based management
295
296
297

See, e.g., Halpern et al., Global Map, supra note 4.
McLeod et al., supra note 1 (emphasis added).
For a discussion of types of cumulative impacts, see Benjamin S. Halpern et al., Managing for Cumulative Impacts in

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is identifying the many human impacts, understanding their effects on the ecosystem, andminimizing them so that all ecosystem services are maintained.
As this Handbook shows, many regional governance programs in the U.S. are based on
soft-law agreements (e.g., memoranda of understanding, governors’ statements, and joint
aspirational documents), and that the programs tend to be advisory and informational in nature.298
Existing regional governance programs often focus on broad policies, restoration of disturbed
environments, education and outreach, and development of ecosystem data. There are often
disconnects between regional governance programs and the regulatory agencies that are making
day-to-day and project-by-project permitting and licensing decisions. However, it is precisely
these individual projects that occur across sectors, over time, and throughout the ecosystem thatcumulatively impact and destroy the environment.299
One way that government agencies manage ecosystems is by managing the activities of thepeople who use them. Several approaches are possible. Some activities may take place inthe absence of any regulatory framework. More often, government agencies regulate humanuses through the use of a permit system. In other cases, laws and policies may be designed toencourage certain behaviors or activities through incentive-based programs. And some locations
may be completely protected and off-limit to all human uses, while some activities may becompletely prohibited no matter the location.
Figure 10 provides a framework for how government can consider and minimize cumulative
impacts caused by human use. Government can prevent human use by preserving the naturalenvironment through designation of parks and protected areas (Fig. 10(A): this has beena traditional conservation approach. Government can minimize human use to maintainsustainability by prohibiting some activities or limiting activities in certain places or at certain
times, by encouraging sustainability through education and incentives, or by regulating humanuse through permits and licenses to ensure sustainability (Fig. 10(B)). 300 A third approach, whichshould be the last resort but is often the typical course of action, is to restore the environment
only after degradation has occurred (Fig. 10(C)). Because destructive human impact to themarine environment is ultimately the challenge that EBM attempts to overcome, the full suiteof approaches for addressing cumulative impacts should be employed in order to achieve andmaintain healthy and resilient marine ecosystems.

Ecosystem-Based Management through Ocean Zoning [hereinafter Cumulative Impacts], 51 Ocean & Coastal Mgmt 203, 204-205(2008) (designating within-activity human impacts (more than one of the same activity) as not cumulative, accumulative, andfully additive and multiple human activities as dominant, additive, multiplicative, and mitigative).
298 ELI, EBM Laws and Institutions, supra note 16.
299 Halpern et al., Global Map, supra note 4.
300 For a discussion of the elements and challenges of achieving sustainable use, see Jon M. Hutton & Nigel Leader-Williams,
Sustainable Use and Incentive-Driven Conservation: Realigning Human and Conservation Interests, 37 Oryx 215 (2003).

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Figure 10. Approaches to Addressing Human Impacts

P re se rva tio n

EBM Goal:
SustainableUse

R e sto ra tion

A. Preservation—Traditional Conservation Approach
P reserva tion b y Lim iting or P roh ibitin g H um an U se
1. D esigna te n o -tak e/no-us e reserves .
2. U se private m echanism s to protect ecos ystem s.
B. Sustainable Use—Ideal EBM Approach
A llo w ing S ustain ab le H um an U se
1. D e ve lop m arine spatial m anagem ent.
2. E sta blish thresholds for hum an use im pacts, allo w ing a n am ple m argin for
scientific an d m anagem ent uncertainty.
3. C o nduct m ore thoro ugh cum ulative im pact ana lyses in perm itting process .
4. E sta blish m echanism s to prevent or m itigate im pacts or enha nce ecos ys tem .
5. M inim ize cum ulative im pacts w hen de ve lop in g an d im plem enting ince ntivebased m anagem ent a pproa ches.
C. Restoration—Focus of Many Regional Programs
R estore E cos ystem after D egrad ation
1. R esp ond and restore after ille gal discharge or injury .
2. R esp ond and restore after perm itted d egrad ation .

Because of ecosystem complexity and the enormous pressure to utilize resources, managing
sustainable use (Fig. 1(B)) is one of the most daunting challenges for EBM implementation. At
its heart is the need to allow human use but also to control it so that the environment maintains
important ecological functions that allow maintenance of the full suite of services upon whichhumans and other species depend.
In addition, the existing regulatory regime in the U.S. exacerbates the problem of managing
for sustainable use. ELI’s review of cumulative impact assessments, case law, and current
ocean health all point to a permitting and licensing system that does not effectively analyze andminimize cumulative impacts.301
301  See, e.g., Michael D. Smith, Recent Trends in Cumulative Impacts Case Law (on file with authors), describing the cumula-82

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Typically, permitting and licensing agencies determine on a project-by-project or case-by-casebasis whether an activity will be permitted, not permitted, or permitted if certain conditions are
met. For example, the Federal Energy Regulatory Commission determines whether companies
can develop wave energy projects in the territorial seas. The U.S. Army Corps of Engineers
determines whether dredge-and-fill operations can take place in navigable waters. The U.S.
Environmental Protection Agency (EPA) or the states determine whether industry can discharge
pollutants into water bodies or the air. These and other agencies make determinations ofpermitted or licensed use based on individual substantive laws like the Clean Water Act, theClean Air Act, the Federal Power Act, and corresponding state laws, and based on procedural
requirements under the National Environmental Policy Act (NEPA) and state NEPAs (including
the California Environmental Quality Act, or CEQA).
Recent academic publications and state law and policy changes have focused on preservation andsustainable use (Figure 1(A), (B)) by designating protected areas and implementing ocean zoning
approaches that prohibit or limit uses in all or some areas.302
Some laws such as NEPA or CEQA explicitly require consideration of cumulative impacts,
but these laws do not have detailed provisions fleshing out this requirement. Under NEPA,
federal agencies generally have two available guidance documents—(1) a 1997 Council on
Environmental Quality handbook on cumulative impact analysis, and (2) the EPA handbook
related to analysis under the Clean Air Act. There is no federal guidance that specificallyaddresses cumulative impact assessments for the marine environment. In short, there is very
little legal and regulatory meaning to the term “cumulative impacts.” It is perhaps not surprisingthen that the resulting analysis often falls far short of what is required or possible.

tive impact assessments under NEPA. The author, for example, states that a study of 89 environmental assessments found that
only 35 of those even mentioned cumulative impacts and only half of those provided any evidence of analysis.
302 See, e.g., Halpern et al., Cumulative Impacts, supra note 297; Sivas & Caldwell, supra note 231; California Marine Life
Protection Act; Massachusetts Oceans Act.

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B. 	Cumulative Impacts In Practice1.

Preservation by Limiting or Prohibiting Human Use

1.1 Designate marine no-take or no-use reserves.
Rationale: Often viewed as necessary but not sufficient for the proper management ofmarine resources, marine reserves are “areas of the ocean completely protected from all
extractive and destructive activities,” allowing only for activities necessary for monitoring andresearch.303 Area-based preservation has long been an approach to conservation in the terrestrial
environment. Marine reserves both limit human impact within the reserve and help address
cumulative impacts beyond the reserve. In addition to protecting habitat and species in theprotected areas, marine reserves can help the recovery of a broader population and can serve asbaseline research sites to inform the management of the broader ecosystem.304
Marine reserves may occur in isolation (e.g., Papahānaumokuākea Marine National
Monument) or as a network of reserves (e.g., California Marine Life Protection Act). Also,
the establishment of marine reserves may be part of a larger comprehensive ocean zoning
scheme. This section focuses on marine reserves or reserve networks. The broader concept ofocean zoning—one that more fully aligns with EBM objectives—is described in the subsequent
section.
Example: State-Based Approach—California Marine Protected Area Network
The California Marine Life Protection Act (MLPA) instructs the California Department ofFish and Game to prepare a master plan for the adoption and implementation of a Marine Life
Protection Program, including a network of marine protected areas that range in their levelof protection throughout state waters.305 A draft of the master plan was completed in Augustof 2005 and revised in January of 2008. The development of a statewide network of marine
protected areas currently is underway.306

303 Jane Lubchenco et al., Plugging a Hole in the Ocean: The Emerging Science of Marine Reserves, 13 Ecological Applications
S3 (2003).
304 Id. at S3.
305 Cal. Fish & Game Code §§ 2855, 2859 (1999).
306 Cal. Dept. of Fish & Game, Marine Life Protection Act Initiative, at http://www.dfg.ca.gov/mlpa/.

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The Marine Life Protection Act identifies six specific goals for the Marine Life Protection
Program: protect the diversity of marine life and integrity of marine ecosystems; help rebuild,sustain, and protect marine life populations; improve recreational, educational, and study
opportunities from minimally-disturbed ecosystems; protect marine life habitats unique to andrepresentative of California’s marine natural heritage; ensure that the state’s marine protection
areas have clear objectives, effective management, adequate enforcement, and are based on
sound science; and ensure that state marine protected areas are designed and managed, to theextent possible, as a network.307
The Marine Managed Areas Improvement Act of 2000 identifies three classifications of marine
protected areas: state marine reserve, state marine park, and state marine conservation area.308
State marine reserves are the most protected areas, open for research and non-consumptive
human use only when consistent with the protection of all marine resources.309 State marineparks allow certain uses, including recreational harvesting, so long as it does not compromise
the protection of species of interest, habitat, or geologic or cultural features.310 In state marine
conservation areas, the managing agency may permit commercial as well as recreational
harvesting, but with similar caveats to those of state marine parks.311
Example: Sector Specific Protection—Alaska Habitat Conservation Zones
Individual sectors can successfully protect habitat from the activities of that sector. For example,
in an effort to protect sensitive habitat and support sustainable fisheries, NOAA Fisheries issued
a rule closing large areas of Alaska seafloor to bottom-contact fish gear. These marine protectedareas comprise relatively undisturbed habitats where only limited fishing occurs,312 and thus
preserve relatively healthy ecosystems. Located in the Aleutian Islands and the Gulf of Alaska,
the closed areas contain seafloor and coral habitats that are readily damaged and slow to recoverfrom fishing activities.
Of these marine protected areas, the Aleutian Island Habitat Conservation Area prohibits bottom
trawling in an area of approximately 280,000 square nautical miles.313 The Bowers Ridge
Habitat Conservation Zone prohibits mobile bottom-tending fish gear within this area of theislands.314 Six Aleutian Island Coral Habitat Protection Areas preserve especially sensitive
coral gardens by prohibiting all bottom-contact fishing. In the Gulf of Alaska, ten Habitat
307 Cal. Fish & Game Code § 2853(b) (2000).
308 Cal. Pub. Res. Code § 36700 (2004).
309 § 36710(a).
310 § 36710(b).
311  § 36710(c).
312 NOAA, National Marine Protected Areas Center, Federal Agency Report under Executive Order 13158 on Marine Protected Areas,
Fiscal Years 2005-2006 12-13, available at http://www.mpa.gov/pdf/helpful-resources/fedagency_rpt_05-06.pdf.
313  Id.
314 NOAA Fisheries, Press Release, August 8, 2005, available at http://www.fakr.noaa.gov/newsreleases/2005/
efhrod080805.htm.

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Conservation Areas along the continental slope protect hard bottom habitat essential to rockfish.
In addition, the Gulf of Alaska has five Coral Habitat Protection Areas and fifteen Seamount
Habitat Protection areas closed to bottom-contact fish gear.315
While this approach has the effect of protecting large ocean areas from the chief impacting
industry, this approach is limited—the restrictions only apply directly to the fisheries sector.
These restrictions may lead to other federal agencies consulting about potential uses that affectthese areas in accordance with the Magnuson-Stevens Fishery Conservation and Management
Act essential fish habitat provisions. However, the essential fish habitat provisions only trigger
consultation, and not substantive action, by other federal agencies.
Example: Federal Approach—Florida Keys National Marine Sanctuary andPapahānaumokuākea Marine National Monument
The objective of the National Marine Sanctuaries Act (NMSA) is to designate as sanctuaries,
and protect, restore, and enhance, those areas of the marine environment that are of special
significance.316 The NMSA authorizes the Secretary of Commerce to designate these marine
protected areas if the discrete area is special due to “its conservation, recreational, ecological,
historical, scientific, cultural, archaeological, educational, or esthetic qualities … thecommunities of living marine resources it harbors; or … its resource or human-use values.”317
Additionally, the existing state and federal authorities must be otherwise inadequate to ensure
coordinated conservation, and the discrete area must be large enough to allow for comprehensive
management.318 The Secretary of Commerce has the authority to “issue such regulations as
may be necessary to carry out” the NMSA,319 thus permitting and prohibiting certain uses. TheNMSA is unique in its comprehensive marine management authority as it can cover state andfederal waters.320
The Florida Keys National Marine Sanctuary is one of thirteen sanctuaries administered under
the NMSA with the most comprehensive zoning scheme among the sanctuaries.321 The Florida
Keys Sanctuary management plan attempts to reduce user conflicts and protect critical habitats
and species by designating five types of marine zones, each with a different level of protection.322
These include the following:

315 NOAA, National Marine Protected Areas Center, supra note 312 at 12-13.
316 16 U.S.C. § 1431(b) (2000).
317 § 1433(a).
318 § 1433(a).
319 § 1439. However, the Secretary may not terminate any lease, permit, or license existing on the date of the designation. §1434(c)(1).
320 § 1432(3).
321  The Florida Keys National Marine Sanctuary and Protection Act, Pub. L. No. 101-605, 104 Stat. 3089 (1990).
322 NOAA, Florida Keys National Marine Sanctuary Revised Management Plan 6 (2007).

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•

•

•
•

•

Sanctuary Preservation Areas are sited in shallow, heavily used reefs facing resource
degradation from concentrated visitor traffic and user conflicts. Regulations for theseareas limit consumptive activities that threaten resource protection. There are eighteen
Sanctuary Preservation Areas totaling approximately 6.5 square nautical miles.
Ecological Reserves are sited in spawning, nursery, and permanent-residence areas
critical to the replenishment of fish and other marine life. Here all consumptive activities
are prohibited, and non-consumptive activities are permitted only if they are compatible
with protection objectives. There are two Ecological Reserves in the Sanctuary totaling
160 square nautical miles.
Special-Use Areas are restricted to permitted entry for the purpose of research andeducation, recovery of degraded resources, or preventing user conflicts. The four
permanent Special-Use Areas are designated for research only.
Wildlife Management Areas are sited around the habitats of sensitive or endangered
wildlife for the purpose of protecting them while providing for limited, if any, public use.
There are 27 such Areas in the Sanctuary, 20 of which are co-managed with the U.S. Fish
and Wildlife Service.
Existing Management Areas cover the resource management areas already in existence,
whether state or federal, prior to the first Sanctuary management plan; there are 21 such
Areas.323

In the 2001 evaluation of the comprehensive management plan, the Sanctuary Advisory Council
found that this zoning structure had been highly effective, with many areas showing “positive
biological change inside their boundaries after just a short period of protection.”324
Despite considering only marine activities and leaving much of the Sanctuary unzoned, thiszoning program makes modest strides toward addressing cumulative impacts. The plan is
focused on outcomes, primarily the protection of marine resources while accommodating humanuses. The areas for zoning are selected based on their ecological significance, and the type ofzone for any one area depends on the impact from human activity that area can withstand. Those
activities that may have too great an impact are limited or prohibited in the area. This reduces
the cumulative impact of multiple sectors or multiple users in a single sector in that zone. But,
this may concentrate human activity outside the delineated zones, possibly resulting in greater
cumulative impacts in the unzoned regions.
In Presidential Proclamation 8031, President George W. Bush designated approximately 140,000
square miles of emergent and submerged lands and waters of the Northwestern Hawaiian Islands
as a national monument under the 1906 Antiquities Act. The Antiquities Act “authorizes thepresident, in his discretion, to declare by public proclamation historic landmarks, historic andprehistoric structures, and other objects of historic or scientific interest that are situated upon

323  Id. at 142-143.
324 Id. at 142.

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lands owned or controlled by the Government of the United States to be national monuments.”325
The Papahānaumokuākea Marine National Monument includes the Northwestern Hawaiian
Islands Coral Reef Ecosystem Reserve, the Midway Atoll National Wildlife Refuge, theHawaiian Islands National Wildlife Refuge, and the Battle of Midway National Memorial.326
The Secretary of Commerce has primary responsibility for managing the marine protectedareas, and the Secretary of the Interior manages monument areas that overlap with the Midway
Atoll National Wildlife Refuge, the Battle of Midway National Memorial, and the Hawaiian
Islands National Wildlife Refuge. Additionally, the Secretary of Commerce and the Secretaryof the Interior review and modify the interagency agreement to coordinate management of theNorthwestern Hawaiian Islands Coral Reef Ecosystem Reserve, if appropriate.327
The proclamation prohibits most activities, including exploring for or producing oil, gas, orminerals within the monument; anchoring a vessel on coral; introducing nonnative species
or discharging any material; and swimming, snorkeling, or scuba diving within a special
preservation area or the Midway Atoll Special Management Area.328 Commercial fishing for“bottomfish and associated pelagic species” may continue until 2011. However, total landings
may not exceed 350,000 pounds of bottomfish and 180,000 pounds of pelagic species. After
2011, fishing for these species is prohibited within the monument.329 Owners of vessels
containing operating vessel monitoring systems additionally must be issued a permit to accessthe monument.330 The proclamation also allows for Native Hawaiian practice permits and special
ocean use permits upon meeting designated criteria.331

1.2. Use private mechanisms to protect ecosystems.
Rationale: Private mechanisms—including purchasing conservation easements, acquiring
leases, and purchasing property in fee simple—can be used to preserve specific areas from allor some human uses. Chief challenges to applying private mechanisms in the ocean and coastal
environment include (1) the cost of coastal property and (2) the inability to lease or purchasesubmerged lands or ocean areas for conservation purposes. Despite these limitations, private
mechanisms are available and are being used for targeted preservation in some regions.

325
326
327
328
329
330
331 

Proclamation No. 8031, 71 Fed. Reg. 36,443 (June 26, 2006).
Id.
Id.
Id.
Id.
Id.
Id.

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Example: Federal Purchasing Program—NOAA Coastal and Estuarine Land Conservation
ProgramEstablished in 2002, NOAA’s Coastal and Estuarine Land Conservation Program (CELCP)
provides matching funds to states to purchase coastal and estuarine lands and obtain conservation
easements from private parties.332 To date, this program has distributed approximately $200
million in 26 states, protecting more than 35,000 acres of land.333 The lands are to have“significant conservation, recreation, ecological, historical, or aesthetic value[], or … arethreatened by conversion from their natural or recreational state to other uses.”334 NOAA has
developed guidelines for distributing funds, which allow states with approved coastal zone
management plans or National Estuarine Research Reserves to participate in the program.335
The state must have an approved Coastal and Estuarine Conservation Plan before submitting
an application to the competitive grant program.336 Lead state agencies have the opportunity toredistribute funds via grants to other state agencies, local governments or other eligible entities
in accordance with Coastal Zone Management Act Section 306A(e).337 States can use CELCP
funds for developing CELCP plans ($50,000), program administration, acquisition, and a small
amount for initial land stewardship costs.338
Example: State-Based Protection Program—California Coastal Conservancy
The California Coastal Conservancy was established in 1976 to “purchase, protect, restore, andenhance coastal resources, and to provide access to the shoreline.”339 In accordance with statestatute, the Conservancy can acquire coastal lands, issue grants to state agencies to acquire landor water areas of sensitive resource value, and issue grants to nonprofit organizations to acquirelands in accordance with statutory requirements.340 Since the creation of the Conservancy, it
has helped to preserve more than 300,000 acres of coastal habitat.341 In 2008, the Conservancy
awarded more than $102 million to support 147 projects along the coast—part of which wasfor property acquisition. It used these funds to leverage additional funds from the federal
government and private organizations worth more than $178 million. Much of the funding usedby the Conservancy came from state bonds acts approved by California voters.
332 NOAA, Ocean & Coastal Resources Management, The Coastal and Estuarine Land Conservation Program, at http://coastalmanagement.noaa.gov/land/welcome.html.
333 NOAA, Ocean & Coastal Resources Management, Overview of NOAA’s Coastal and Estuarine Land Conservation Program(CELCP), at http://coastalmanagement.noaa.gov/land/welcome.html.
334 33 U.S.C. § 1456(d) (2002).
335 NOAA, Ocean & Coastal Resources Management, Coastal & Estuarine Land Conservation Program: Final Guidelines 4(2003), available at http://coastalmanagement.noaa.gov/land/welcome.html.
336 Id.
337 Id. at 5.
338 Id. at 5-6.
339 California Coastal Conservancy, About the Conservancy…, at http://www.scc.ca.gov/index.php?cat=1.
340 Cal. Pub. Res. Code. §§ 31105, 31115, 31116.
341 California Coastal Conservancy, 2008 Project Accomplishments, at http://www.scc.ca.gov/index.php?cat=21.

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Example: Private Mechanisms for Marine Protection—The Nature Conservancy’s Marine
Conservation Agreements
The Nature Conservancy (TNC) is leading NGO efforts to conserve and protect the marine andcoastal environment using proprietary mechanisms. It has developed the Practitioner’s Toolkit
for Marine Conservation Agreements, which provides strategies and approaches for using
private mechanisms to protect ocean and coastal resources.342 TNC defines marine conservationagreements as “any formal or informal understanding between two or more parties in which theparties obligate themselves, for an exchange of benefits, to take certain actions, refrain fromcertain actions, or transfer certain rights and responsibilities to achieve agreed upon ocean orcoastal conservation goals…. MCAs can be entered into by governments, communities, private
entities (including not-for-profit and for-profit), and private individuals.”343 TNC provides a large
list of examples from efforts throughout the world. U.S. examples include:
•
•
•
•
•

Purchasing coastal property and leasing submerged lands in California’s Richardson Bay
in California for the creation of a wildlife sanctuary;
Leasing submerged land in Puget Sound, Washington, for a native oyster habitat
restoration program;
Kelp bed leases in California to harvest kelp and research kelp removal effects on
biodiversity;
Annual authorization to undertake eelgrass restoration on 205 acres of submerged land in
Narragansett Bay, Rhode Island; andPurchase of three islands including property rights in the intertidal lands in Virginia toform the Virginia Coast Reserve.

A limitation of this approach is that there are few property rights available for conservation
purposes in the U.S. marine environment, especially in federal waters. Private parties canobtain permits and leases for extraction from state and federal governments. However, there
are few instances in the U.S. of being able to utilize those mechanisms to preserve the ocean
environment.

342 The Nature Conservancy, Marine Conservation Agreements: A Practitioner’s Toolkit, available at http://www.leaseown.
org/.
343  Id.

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2.

Allowing Sustainable Human Use

2.1. Develop marine spatial management.
Rationale: Marine spatial planning is a strategic, proactive means of “regulating, managing
and protecting the marine environment, including through allocation of space that addresses themultiple, cumulative, and potentially conflicting uses of the sea.”344 In essence, this planning
process identifies existing and potential future demands on ocean resources, both human andnon-human, and attempts to balance these demands, and their effects, in a sustainable mannerby designating preferred uses in specific geographic areas. Spatial planning and zoning
require up-front costs and the process for comprehensive zoning is complex. However, once
completed spatial planning and zoning can simplify the process of predicting and minimizing
the cumulative impacts within and across sectors.
Ocean zoning, often the result of marine spatial planning, is the implementation of regulatory
measures governing the permissible uses, if any, in defined geographic zones of ocean waters.345
This form of managing marine resources can reduce cumulative impacts as compared to amore ad hoc system by considering such impacts in the planning process and incorporating that
information into the zoning plan. But by widening the scope of these planning and managerial
processes to include defined terrestrial areas, more factors that contribute to marine degradation
can be managed together, thus magnifying the benefits.
The following section identifies a variety of laws and programs designed to unify planning andmanagement of the marine ecosystem, some more comprehensive than others but each with aunique approach to a similar end.
Example: Coastal Management—Alaska Coastal Management Program
The federal Coastal Zone Management Act (CZMA) established a voluntary program in
the Department of Commerce that offers cost-sharing grants to coastal states, including
U.S. territories and Great Lakes states, to develop and implement coastal zone management
programs.346 In addition to these grants, the CZMA encourages participation in the program byauthorizing the federal government to delegate “federal consistency review” authority to states
344 Marine Spatial Planning Pilot Consortium, Marine Spatial Planning Pilot: Final Report 1 (2006), available at http://www.defra.gov.
uk/science/Project_Data/DocumentLibrary/ME1407/ME1407_3296_FRP.pdf.
345 United Nations Educ., Sci. & Cultural Org., Marine Spatial Management: Introduction, at http://www.unesco-ioc-marinesp.
be/introduction.
346 16 U.S.C. §§ 1453(1), 1455(a), 1455b(f) (2005).

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with approved coastal management programs, allowing states to approve or reject proposed
federal actions depending on whether they are consistent with the enforceable policies of thestate’s program.347
Alaska developed its Coastal Management Program (ACMP) in 1977 with the objectives ofbalancing the use and protection of coastal resources; managing, restoring, and enhancing thequality of the coastal environment; and developing “commercial enterprises that are consistent
with the social, cultural, historic, economic, and environmental interests of the people of thestate.”348 Authority under the ACMP is shared between the state and 33 local coastal resource
districts.349 The Alaska Department of Natural Resources is the lead agency, responsible for
adopting statewide standards for establishing coastal zone boundaries, determining the land andwater uses subject to the ACMP, developing policies and regulations applicable to those uses,
designating and developing policies for coastal areas that merit special attention, developing
policies and procedures for permitting in coastal areas, and measuring the success of coastal
resource districts.350
The coastal resource districts, by contrast, have authority to add specificity to the statewide
standards. The designated mechanism for exercising that authority is a district coastalmanagement plan.351 The management plan must be based on a comprehensive plan orstatement that governs the use of resources in the coastal area.352 The management plan mustmeet statewide standards and include boundaries of the district coastal area, a list of land andwater uses subject to the plan, policies applicable to these uses, descriptions of proper andimproper uses, and the designation of and development of policies for coastal areas that merit
special attention.353 Including local government in the coastal management process promotes
the integration of coastal management with other local planning concerns, as exemplified by
the fact that most cities with coastal districts add consistency requirements to their land use
regulations.354 Local districts may establish specific coastal boundaries, so long as they extend
inland and seaward enough to manage a use or activity that is likely to significantly affect coastal
waters and so long as it includes intertidal areas, beaches, islands, saltwater wetlands, salt
marshes, and any other areas vulnerable to sea level rise.355
The zoning that results from the ACMP is not comprehensive, insofar as it does not necessarily
designate allowable uses for all state marine waters. But in many cases it identifies permissible
347 §§ 1454, 1456(c)-(d).
348 Alaska Stat. § 46.40.020.
349 § 46.40.210(2).
350 § 46.40.040(a)(1).
351  § 46.40.030(a).
352 § 46.40.090.
353  § 46.40.030(a).
354 Jeffrey H. Wood, Protecting Native Coastal Ecosystems: CZMA and Alaska’s Coastal Plain, 19S Nat. Resources & Env’t 57,
60 (2004).
355 Alaska Admin. Code tit. 11 § 114.220(c).

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and impermissible uses for specific areas and outlines priority of uses for those areas.356
Furthermore, the ocean zoning that results from the ACMP could be made more comprehensive
under the existing legal structure. What sets the ACMP apart from the other ocean zoning
programs in the U.S. is two-fold: (1) the inclusion of terrestrial areas and activities and (2) the
extent to which local governments are involved in the zoning process. These two factors areinterrelated, as control over terrestrial zoning primarily rests in the hands of local governments;
inclusion of local governments in the planning process may improve efficiency and effectivenessof the land-based regulations and makes coastal management more holistic. The ACMP offers an
example of how this integration may be accomplished.
Example: Coastal Zone Management—Rhode Island Ocean Special Area Management Plan
Rhode Island is using the CZMA in a unique manner to accomplish its ocean zoning objectives.
The CZMA creates a funding mechanism for the development of Special Area Management
Plans (SAMPs), defined as “a comprehensive plan providing for natural resource protection
and reasonable coastal-dependent economic growth containing a detailed and comprehensive
statement of policies; standards and criteria to guide public and private uses of lands and waters;
and mechanisms for timely implementation in specific geographic areas within the coastal
zone.”357
In early 2008, the Rhode Island Coastal Resources Management Council (CRMC) proposed
the development of a SAMP focused on offshore renewable energy. The SAMP is intended
to comprehensively zone a roughly 36-by-25 nautical mile stretch of ocean off the coast of
Rhode Island that includes most, if not all, state marine waters as well as federal waters.358 The
development of the Ocean SAMP will be divided into two parts. First, the CRMC will preparea zoning map for offshore waters within the predetermined area that will identify the locationof certain uses, including energy facilities, that present environmental concerns and potential
conflicts.359 Second, the CRMC will create design and construction rules for the offshore energy
production projects.360 The SAMP is expected to be completed in 2010.361
By identifying current and expected uses of those ocean waters, ecologically sensitive andsignificant areas, and the windiest stretches of that region, the SAMP is expected to define
preferred sites for offshore wind development, among other uses.362 The CRMC has experience

356 See, e.g., Haines Borough Enforceable Policies, Sitka Coastal Management Plan Enforceable Policies and Definitions,
Valdez Enforceable Policies and Designated Areas, available at http://www.alaskacoast.state.ak.us/Explore/alldistEPS.html.
357 16 U.S.C. § 1453(17) (2005).
358 Timothy C. Barmann, Mapping the Ocean: SAMP Will Target Areas for Renewable Energy Projects, Providence J. (July 24,2008), available at http://www.projo.com/news/content/bz_ocean_samp18_07-24-08_8BAT7HN_v13.31a3bbf.html.
359 Id.
360 Id.
361  R.I. Coastal Res. Mgmt. Council & Univ. of R.I., The Ocean/Offshore Renewable Energy Special Area Management Plan i (2008).
362 Id.

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with SAMP development, having adopted four SAMPs and currently working on two others.363
But the Ocean SAMP is different as it does not pertain to a “specific geographic area[] within
the coastal zone;” rather, it applies to substantially more area than that encompassed by just statewaters.
According to the CRMC, the Ocean SAMP structure serves several purposes.364 First, theSAMP is intended to “streamline cumbersome federal and state permitting processes andestablish a more cost-effective permitting environment for investors.”365 The CRMC believes
that the Ocean SAMP will meet its requirements for scientific analysis and planning, including
stakeholder involvement, as well as those requirements of the MMS, the ACOE, NOAA, andthe Rhode Island Department of Environmental Management.366 Second, the CRMC seeks to“promote a balanced approach to considering the development and protection of ocean-based
resources.”367 A SAMP is intended to “provid[e] for natural resource protection and reasonable
coastal-dependent economic growth,”368 thus supplying a sound foundation and process for thisbalanced approach. Third, the CRMC aims to “complete the necessary studies to yield the mostaccurate and current ocean-based scientific data and technologies to build knowledge critical for
supporting the permitting process.”369 SAMPs often are resource-intensive, including substantial
scientific data-gathering. Fourth, the CRMC wishes to “foster a well-informed and committed
public constituency.” Perhaps more than any of the three aforementioned goals, this one is well
suited for a SAMP. Effective SAMPs generally “provide for appropriate, timely, meaningful
stakeholder and public participation in the development and implementation of the plan,”370
which informs the public and encourages their commitment to its objectives.
The CRMC also intends to use the SAMP as a means of collaborating with federal agencies.
Effective SAMPs often include “a strong commitment and willingness at all levels ofgovernment to enter into a collaborative planning process to produce enforceable plans.”371
This cooperative approach in the Ocean SAMP is intended not only to streamline permitting
procedures later, but also to effectively expand the planning area past state waters.372
Since Rhode Island does not have authority beyond its three miles of state waters, any planningfor federal waters would require cooperation from relevant federal agencies to have any effect.

363  Barmann, supra note 358.
364 See R.I. Coastal Res. Mgmt. Council & Univ. of R.I., supra note 361.
365 Id. at 1.
366 Id.
367 Id.
368 16 U.S.C. § 1453(17) (2005).
369 R.I. Coastal Res. Mgmt. Council & Univ. of R.I., supra note 361 at 1.
370 NOAA, In Depth: Understanding Special Area Management Plans, at http://coastalmanagement.noaa.gov/issues/special_indepth.html.
371  Id.
372 Personal communication, on file with authors (July 31, 2008).

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Example: Marine Spatial Management—Massachusetts Ocean Management Initiative
Massachusetts’ Oceans Act of 2008 is the first state legislation to require the development of acomprehensive management plan for marine waters.373 The objective of the plan is a balance
between natural resource preservation and human activity, particularly renewable energy.374
The ocean management plan is intended to cover all marine waters under the jurisdiction of
Massachusetts. According to the Act, the plan shall include any waters and submerged lands ofthe ocean beginning at the “Nearshore Boundary of the Ocean Management Planning Area” andextending to the seaward boundary of the commonwealth, three nautical miles from shore.375
The plan also must detail the municipal, state, and federal boundaries and recommend ways toclarify them.376
The Act anticipates that the plan will consider and fulfill many state objectives. Among theseobjectives are the establishment of siting priorities and standards for ensuring protection ofmarine waters as well as identifying appropriate locations and performance standards for marine
activities, uses, and facilities.377 The plan also is intended to identify and protect sensitive or
unique estuarine and marine life and their habitats.378 It is expected to foster sustainable uses
and coordinate activity under international, federal, state, and local authority.379 In the course ofdeveloping these and other aspects of the plan, the secretary must consider the existing natural,cultural, historical, social, and economic characteristics of the regions affected by it.380
According to the Oceans Act, once the Secretary of Energy and Environmental Affairs adopts
the ocean management plan, “all certificates, licenses, permits and approvals for any proposed
structures, uses or activities in areas subject to the ocean management plan shall be consistent, tothe maximum extent practicable, with the plan.”381 Furthermore, the secretary must promulgate
regulations for implementing, administering, and enforcing the Act.382
Since the planning process, let alone the actual plan, is still in its early stages, considerations of
cumulative impacts, explicitly or impliedly, are not yet clear. But, the legislative structure of theplan could promote the identification and reduction of cumulative impacts in the zoning process.
Not only is the plan intended to protect sensitive marine life and habitats, but the Massachusetts
comprehensive management plan is expected to establish siting priorities and identify preferred
locations for various marine uses. In the process of making these decisions, the Secretary likely
would, and should, consider the direct, indirect, and cumulative impacts of existing and futureuses on marine ecosystems. By geographically separating some activities within and across373 Press Release, The Office of Governor Deval Patrick, Governor Patrick Signs Law Creating First-in-the-Nation Oceans Management Plan Balancing Preservation, Uses (May 28, 2008), available at http://www.mass.gov/?pageID=gov3pressrelease&L=1&L0=Home&sid=Agov3&b=pressrelease&f=080528_oceans&csid=Agov3.
374 Id.
375 Mass. Gen. Law ch 21A § 4C (2008).
376 § 4C
377 § 4C
378 § 4C
379 § 4C
380 § 4C
381 § 4C
382 § 4C

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sectors, strategically managing the density of certain sector activities within an area, and giving
the greatest protection to particularly fragile marine environments, the plan could reduce andprevent future cumulative impacts.

2.2. Establish thresholds for human use impacts, allowing an ample margin for scientificand management uncertainty.
Rationale: Determining the thresholds for sustainable levels of extraction or pollution within
the context of the full suite of human activities in a region could help address cumulative
impacts. Such an approach would include a margin of safety for both causes of uncertainty inpermitting: lack of scientific information and imprecise implementation.
Thresholds can be used to ensure that the combined human activities and impacts do not exceed
levels that would substantially diminish valuable ecosystem services. By setting a margin ofsafety, there is less risk that human activity will exceed sustainability thresholds. This section
identifies three permitting schemes that determine a maximum level of impact offset by amargin of safety and issue permits based on those figures. Examples included here focus on
sector-based or single-impact thresholds, since few if any cross-sector thresholds have been
established to date.
Example: A Quantitative Approach to Address Uncertainty about Impact—Magnuson-Stevens
Fishery Conservation and Management Act
The Magnuson-Stevens Fishery Conservation and Management Act (MSA) provides an exampleof how institutions can take a quantitative approach to account for uncertainty when making
decisions related to allowable impacts on resources.383 However, it should be noted that this isa scientifically intensive endeavor that will only be made more complicated by a cross-sector
approach.
After reauthorizing the MSA in 2007, Congress now requires fishery management councils to“establish a mechanism for specifying annual catch limits in the plan (including a multiyearplan), implementing regulations, or annual specifications, at a level such that overfishing does
not occur in the fishery, including measures to ensure accountability.”384 Annual catch limits
may not exceed the fishing levels recommended by a fisheries council’s Scientific and Statistical
Committee.385 To assist regional fishery management councils in developing annual catch limits
and accountability measures, the National Marine Fisheries Service finalized new guidelines
383
384
385

16 U.S.C. § 1801 et seq (2007).
MSA, §§ 104(a)(10), 303(a)(15) (2007).
§ 302(h)(6).

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in January 2009.386 Combined, the amended law and new guidelines create a system of tiered
reference points that serve to inform total allowable catch and prevent overfishing.
Key quantitative measures include annual catch limits (ACL), accountability measures (AMs),
overfishing limits (OFL), acceptable biological catch (ABC), and annual catch target (ACT).387
The OFL is “an estimate of the catch level above which overfishing occurs.”388 ABC is “a levelof a stock or stock complex’s annual catch that accounts for the scientific uncertainty in theestimate of OFL and any other scientific uncertainty.”389 ACL is “is the level of annual catch of astock or stock complex that serves as the basis for invoking AMs. ACL cannot exceed the ABC,but may be divided into sector-ACLs.”390 AMs are management controls used to prevent ACL
overage and are divided into in-season AMs (e.g., fishery closures, area closures, changes in trip
or bag limits) and AMs for when the ACL is exceeded (e.g., next year overage adjustments andother mitigation measures).391 Finally ACT is defined as “an amount of annual catch of a stock
or stock complex that is the management target of the fishery, and accounts for management
uncertainty in controlling the actual catch at or below the ACL.”392
The final guidance states that the ACT be of equal or lesser value than the ABC, which should
be of equal or lesser value than the OFL (i.e. OFL ≥ ABC ≥ ACL).393 While proposed guidelines
stated that the ACT should be equal or less than the ACL, this was dropped in the final guidance
and is recommended as part of the accountability measures.394 These four quantities—OFL,
ABC, ACL, and ACT—act as quantitative thresholds that are used to prevent overfishing. The
objective of this structure is to account for scientific and management uncertainty so as toprevent, on an annual basis, the ACL from being exceeded.395
Example: Creating a Margin of Safety—Clean Water Act
The Clean Water Act (CWA) Total Maximum Daily Load (TMDL) Program provides anotherexample of how to create a margin of safety. TMDLs apply to all pollutant sources, and so arecross-sector in nature. However, they do not directly address the interconnections between
multiple pollutants or pollutants combined with other types of human impact. The TMDL
386 Magnuson-Stevens Act Provisions; Annual Catch Limits; National Standard Guidelines,74 Fed. Reg. 3178 (Jan 16, 2009)(to be codified at 50 C.F.R. pt. 600).
387 For a summary of the guidelines, see NOAA Fisheries, Office of Sustainable Fisheries, Revsisions to the National Standard 1 Guidelines: Guidance on Annual Catch Limits and Other Requirements (Jan 2009)(PowerPoint presentation), available at
http://www.nmfs.noaa.gov/msa2007/docs/acl_final_ns1_rev_presentation_jan162009.pdf.
388 74 Fed. Reg. 3206.
389 Id. at 3208.
390 Id.
391  Id at 3210.
392 Id. at 3209.
393  74 Fed. Reg. 3180. [386]394 Id.
395 Id.

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program focuses on the impact to waters receiving pollutant discharges. The process leading to
the creation of a TMDL begins with state water quality assessments: if a water body or segment
does not meet a water quality standard for a designated use, it is deemed to be impaired.396
If a water segment is impaired by a pollutant397 and not otherwise exempted, a TMDL must
be developed to address the pollutant.398 A TMDL allocates permissible pollutant loading
among types of contributors, up until the point that the water segment would risk falling out ofcompliance with water quality standards.
Vital to a TMDL is accurate calculation of the loading capacity, the maximum amount of apollutant that a water body can receive from all contributing sources, in addition to backgroundconditions, without violating water quality standards.399 This total load is divided among
three categories, a wasteload allocation, a load allocation, and a margin of safety. A wasteload
allocation is “[t]he portion of a receiving water’s loading capacity that is allocated to one of its
existing or future point sources of pollution.”400 The wasteload allocation for a specific pollutant
is divided among the contributing point sources that are regulated under NPDES permits. A loadallocation is “[t]he portion of a receiving water’s loading capacity that is attributed either to one
of its existing or future nonpoint sources of pollution or to natural background sources.”401 The
combination of load and wasteload allocations must be below the loading capacity to accountfor “any lack of knowledge concerning the relationship between effluent limitations and water
quality.”402 This is the margin of safety. In practice, the margin of safety increases with lessdeveloped predictive models.403
While TMDLs allocate based on individual pollutants, a more comprehensive TMDL is not
expressly prohibited, and in practice some TMDLs address more than a single pollutant. Also,
water quality standards for designated uses, e.g., recreation and fish consumption, suggest amore comprehensive approach to addressing the additive and synergistic causes of impairment.
Regardless of whether multiple pollutants are addressed together, ultimately a loading capacity
and allocation of loads must be calculated for each pollutant. Thus, a TMDL is more successful
in considering the cumulative impacts of multiple sources of the same pollutant than it is inconsidering multiple pollutants.

396 33 U.S.C. § 1313(d)(1)(A) (2000).
397 The term “pollutant” is defined in the Clean Water Act as “dredged spoil, solid waste, incinerator residue, sewage, garbage, sewage sludge, munitions, chemical wastes, biological materials, radioactive materials, heat, wrecked or discarded equipment, rock, sand, cellar dirt and industrial, municipal, and agricultural waste discharged into water.” § 1362(6).
398 1313(d)(1)(C).
399 40 C.F.R. § 130.2(f).
400 § 130.2(h).
401  § 130.2(g).
402 33 U.S.C. § 1313(d)(1)(C) (2000).
403  See EPA, Guidance for Water Quality-Based Decisions: The TMDL Process (1991), http://www.epa.gov/owow/tmdl/decisions/dec2.html.

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To date, few saltwater bodies, mostly bays, have been identified as impaired.404 This may
be the result of limited monitoring rather than attainment of water quality standards. Manywater quality standards are just as applicable in saltwater as they are in freshwater, and somestates have standards exclusively for marine waters. But without monitoring and subsequent
impairment designations, TMDLs likely will not be developed for marine waters. Unless thisapproach changes, TMDLs likely will continue to focus on tributaries, estuaries, and bays but
not open ocean waters. Thus, for purposes of marine activities, the TMDL program offers an
opportunity for addressing cumulative impacts but has been underutilized in these waters to date.
Example: Classifying Human Use Impacts—Marine Mammal Protection Act
The Marine Mammal Protection Act (MMPA) places “a moratorium on the taking and importationof marine mammals and marine mammal products.”405 One of the few exceptions to thismoratorium is the incidental take of marine mammals in the course of commercial fishing.406
However, the MMPA has a clear objective of reducing the incidental mortality and serious injury
of marine mammals caused by commercial fisheries to insignificant levels approaching zero.407 To
this end, the Secretary of Commerce is tasked with establishing and annually updating a list thatclassifies commercial fisheries as having (i) frequent incidental mortality and serious injury ofmarine mammals; (ii) occasional incidental mortality and serious injury of marine mammals; or (iii)a remote likelihood of or no known incidental mortality or serious injury of marine mammals.”408
In order to engage in lawful incidental take of marine mammals in a commercial fishery listed in
category (i) or (ii), a vessel must obtain authorization from the Secretary of Commerce.409
This authorization may be suspended or revoked if the owner of the vessel fails to comply
with a “take reduction plan,”410 developed and implemented by the Secretary of Commerceand designed to recover or prevent the depletion of marine mammal stocks that interact with acommercial fishery listed in category (i) or (ii).411 Each take reduction plan must include, among
other things, recommended measures for reducing incidental mortality and serious injury.412 To
implement a plan, the Secretary of Commerce may “establish fishery-specific limits on incidental
mortality and serious injury of marine mammals in commercial fisheries or restrict commercial
fisheries by time or area;” “require the use of alternative commercial fishing gear or techniques

404 See, e.g., Alaska Dept. of Envtl. Conservation, Final Total Maximum Daily Loads in the Waters of Silver Bay, Alaska (2003); N.C. Dept.
of Env’t & Natural Res., Total Maximum Daily Loads for Fecal Coliform for Jarrett Bay and Its Embayment, North Carolina (2007).
405 16 U.S.C. § 1371(a) (2007).
406 § 1371(a)(2).
407 § 1387(b)(1).
408 § 1387(c)(1)(A).
409 § 1387(c)(3)(A).
410 § 1387(c)(4)(B).
411  § 1387(f)(1).
412 § 1387(f)(4).

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and new technologies, encourage the development of such gear or technology, or convene expert
skippers’ panels;” and “educate commercial fishermen.”413
Important to a take reduction plan is an estimation of the potential biological removal level foreach stock. This level is “the maximum number of animals, not including natural mortalities,
that may be removed from a marine mammal stock while allowing that stock to reach or maintainits optimum sustainable population.”414 For those stocks that exceed the potential biologicalremoval level as a result of commercial fishing, the take reduction plan must include measures
to reduce mortality and serious injury below that level within six months.415 For those stocks
that exceed the potential biological removal level as a result of other human activity in addition
to commercial fishing, the take reduction plan must include measures to reduce mortality andserious injury from commercial fishing to the maximum extent possible within six months.416
The potential biological removal level sets a cap for incidental takes and serious injury to marine
mammals. This adds consideration of cumulative impacts to the MMPA permitting structureby setting a management objective that is applicable to the entire fishing sector. The MMPA
does require the effects of other sectors to be considered in determining the 6-month objectivesof a take reduction plan: if the fishing sector would not have exceeded the potential biologicalremoval level on its own, the plan must only reduce mortality and serious injury to the maximum
extent possible rather than below the level. This provision strives to reduce the effects of thefishing sector on marine mammal populations, but it avoids solutions that address cumulative
impacts of multiple sectors. While there is no explicit margin of safety required below thepotential biological removal level, the fact that the long-term objective of the MMPA is to reduceincidental mortality and serious injury to zero serves that purpose. The MMPA provides apermitting scheme that reduces the cumulative impacts of the activities of a single sector below atarget level, but does not extend those regulations to cover the effects from all sectors.

413 
414
415
416

§ 1387(f)(9).
§ 1362(20).
§ 1387(f)(5)(A).
§ 1387(f)(5)(B).

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2.3. Conduct more thorough cumulative impact analyses in permitting process.
Rationale: Several current federal and state laws require permit applicants to consider
cumulative impacts when conducting environmental reviews or applying for permits. Exactly
what is required in this analysis depends on the specific law, and is not fully clarified. At its
core, a cumulative impact analysis reveals the expected consequences of the proposed activity
when its direct and indirect effects are added to those of past, present, and future activities. As
usually practiced, simple cumulative impact analysis may identify overlooked additive andsynergistic effects arising from diverse activities across sectors. But a more comprehensive
analysis could provide the basis for EBM, identifying connections between terrestrial,
freshwater, and marine environments and how activities in each interact.
The following section examines the more frequently litigated cumulative impact provisions offederal and state law, as well as examples of comprehensive analyses, in order to identify the
expectations for and opportunities presented by cumulative impact analyses.
Example: Lessons Learned from Environmental Impact Assessment
Environmental impact assessment (EIA) occurs according to the federal National Environmental
Policy Act (NEPA) and “state NEPAs” (state environmental impact assessment laws). Thissection provides a brief summary of EIA approaches from practitioners and the courts that could
be expanded in other settings. Potential approaches to more effective cumulative impact analysis
under NEPA and state NEPAs include:•••

Use quantified or detailed information when conducting cumulative impact analysis.
“General statements about ‘possible’ effects and ‘some risk’ do not constitute a ‘hard
look’ absent a justification regarding why more definitive information could not beprovided.”417
Consider the combined effects of individual projects throughout the region.418
Include the following elements in an impact statement or assessment: geographic
area affected; the impacts expected in that area from the proposed project; other past,present, and reasonably foreseeable future projects that have affected or are expected
to affect that area; the effects or expected effects of these other actions; and the total

417 Neighbors of Cuddy Mountain v. U.S. Forest Serv., 137 F.3d 1372, 1380 (9th Cir. 1998).
418 See e.g., Klamath-Siskiyou Wildlands Ctr. v. Bureau of Land Mgmt., 387 F.3d 989, 993 (9th Cir.2004) (holding that “Eachof the EAs notes that the individual project may have short term adverse impacts on water quality [which would affect at-risksalmonids], but nowhere are the combined water quality effects of the four proposed sales contemplated.” Likewise, “Each of theEAs recognizes that the proposed sales will adversely affect the habitat of spotted owls … amount[ing] to a total of 1,881 acresof critical habitat. But this total number is not presented in either … EA. More importantly, there is no discussion in any of the EAs
about the effect of this loss on the spotted owl throughout the watershed.”).

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impact expected if individual effects accumulate.419
Examine past, present and future activities when considering cumulative impacts.420
Previous degradation should not necessarily allow for greater impact. According to
the California Court of Appeal, “the greater the existing environmental problems are,the lower the threshold should be for treating a project's contribution to cumulative
impacts as significant.”421
Analyze the full spectrum of potential impacts. The draft EIR for the Venoco
Ellwood Oil Development and Pipeline Project divides analysis as follows:
geological resources; hazards and hazardous materials; air quality; hydrology,
water resources, and water quality; biological resources; cultural, historical, andpaleontological resources; land use planning and recreation; public services;transportation and circulation; noise; aesthetic resources; energy and mineral
resources; agricultural resources; and environmental justice.422

Example: Lessons Learned from Clean Water Act Section 404 Mitigation
Section 404 of the Clean Water Act authorizes the Army Corps of Engineers to regulatedischarges of dredged or fill material.423 Section 404 guidelines require that the Corps determine
in writing the potential short- and long-term effects, including cumulative effects, of a proposed
discharge of dredged or fill material on the aquatic environment.424
One of the more thorough descriptions of this requirement is found in Ohio Valley Environmental
Coalition v. U.S. Army Corps of Engineers. In that case, three environmental organizations
sought a declaration that the Corps violated the CWA and NEPA when it issued four permits tofill West Virginia headwater streams with byproduct material from mountaintop-removal coalmining.425 The court in this case delineated four requirements that can be applied more broadly
to cumulative impact decision-making.
In essence these requirements lead to the following principles:•

Consider the appropriate region for analysis that corresponds to the ecosystem ofconcern.426

419 U.S. Dep’t of the Navy, Hawaii Range Complex: Final Environmental Impact Statement/Overseas Environmental Impact Statement 5-2(2008).
420 City of Carmel-by-the-Sea v. U.S. Department of Transportation, 123 F.3d 1142, 1160-1161 (9th Cir.1997).
421 Communities for a Better Env’t v. Cal. Res. Agency, 103 Cal. App. 4th 98, 120 (Cal. Ct. App. 2002).
422 Cal. State Lands Comm’n, Draft Environmental Impact Report for the Venoco Ellwood Oil Development and Pipeline (Full Field Development) Project iv-x (2008).
423 33 U.S.C. § 1344 (2000).
424 40 C.F.R. § 230.11.
425 Ohio Valley Envtl. Coalition v. U.S. Army Corps of Eng’rs, 479 F. Supp.2d 607, 614 (S.D.W.Va. 2007).
426 Id. at 660. In this case, the court stated that by failing to consider the hollows surrounding the streams, the Corps inappropriately narrowed the analysis of cumulative impacts

102 Environmental Law InstituteOCEBM Handbook•••

It is not enough to state the impact and then find insignificance. There should bea rational connection between the facts and the cumulative impacts decision.427
Even if mitigation makes a specific impact insignificant in isolation, it may notrender the cumulative impacts insignificant.428
Preexisting disturbances do not mean that added destruction is not a significant
impact.429

The Ohio Valley decision suggests that there are limits to the role of mitigation strategies in CWA
cumulative impact analyses, that the analysis linking the facts to the conclusions is as importantas the facts themselves, that a cumulative impact analysis for even a subsection of an ecosystem
requires consideration of the broader effects of an activity, and that evaluating cumulative
impacts are as important in heavily degraded areas as pristine ones. While this case pertains
to freshwater resources, as is true for most CWA Section 404 decisions, its lessons are equallyapplicable in marine waters. Furthermore, the push by the Ohio Valley court for the Corps toconsider the downstream effects of headwater stream destruction suggests the practice of setting
a spatial scope for CWA cumulative impact analysis that includes all potentially affected waters,
extending where reasonable to estuaries and the sea.
Example: Lessons Learned from Endangered Species Act Cumulative Impact Analysis
The first step in the Endangered Species Act Section 7 consultation process is for the federal
agency contemplating action to decide whether that action “may affect listed species or critical
habitat.”430 If the answer is “yes,” the agency must consult with the either the Fish and Wildlife
Service (FWS) or the National Marine Fisheries Service (NMFS), depending on the species.431
This consultation will result in a Service-issued biological opinion432 that summarizes the
proposed action, discusses the effects of that action on listed species, and determines whether
that action is likely to jeopardize a listed species or adversely modify its critical habitat.433

427 Id. at 659. The court found that the Corps failed to make a “rational connection” between the facts and the cumulative
impact determinations. For each permit, the Corps detailed the total amount and percentage of stream loss, but then concluded
without discussion that those losses did not amount to a significant impact.
428 Id. at 659. The court presumed that, since the Corps gave no rational explanation for its cumulative impact determinations, it rested those determinations entirely on proposed mitigation plans. According to the court, multiple permitted activities
with individually “mitigated-to-insignificant” effects do not inherently result in a cumulatively insignificant impact.
429 Id. at 659-660. Fourth, the court held that the preexisting disturbance to the watershed caused by mining did not relieve
the Corps of at least examining and explaining how the added destruction to headwater streams will not cause a significant
impact on the aquatic environment.
430 50 C.F.R. § 402.14(a).
431  Id.
432 Id. at § 402.14(e)(3).
433  Id. at § 402.14(h).

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In making this jeopardy decision in the biological opinion, the FWS or NMFS must consider the
cumulative effects, in addition to the direct and indirect effects, of the action on listed species
and critical habitat.434 The ESA defines “cumulative effects” as “those effects of future State or
private activities, not involving Federal activities, that are reasonably certain to occur within theaction area of the Federal action subject to consultation.”
In National Wildlife Federation v. Norton, three conservation organizations challenged the Corps’
issuance of a CWA 404 permit.435 The Corps’ Biological Opinion includes several apparent
justifications for its no jeopardy decision, including the corridor, population size, recovery
rates, and the percentage of habitat that would be disturbed by the project.436 While each ofthese included substantial data, the court found that the Biological Opinion completely failed
to discuss private projects likely to occur in panther habitat.437 The court stated that “[i]f therequirement to evaluate cumulative effects is to mean anything, the FWS must not only explain
what its ‘disturbance intensity’ numbers mean for panther habitat now, but what part the Florida
Rock project will play in the reasonably expectable degradation over time of the habitat uponwhich ‘one of the most endangered large mammals in the world’ depends.”438
In Blue Water Fishermen’s Association v. NMFS, a fishermen’s association sought access topelagic longline fisheries after their closure by regulators due to the effects of that activity on
endangered sea turtles.439 The fishermen’s association claimed that the Biological Opinion was“arbitrary and capricious” since the longline fishing industry is only one small contributor to
the jeopardy of the sea turtle populations.440 The court held that, since the ESA requires the
NMFS to consider “the action, taken together with cumulative effects” in its jeopardy decision,“[t]he NMFS need only have found that the pelagic longlining threat together with othercumulative effects add up to jeopardy.”441 Hence, longlining need not be the predominant oreven a significant cause of the jeopardy for it to be found a jeopardizing activity. The court heldthat the Biological Opinion was consistent with the ESA given its significant attention to otheranthropogenic effects on the sea turtles and the explicit role it played in the NMFS jeopardy
decision.442

434
435
436
437
438
439
440
441 
442

Id. at § 402.14(g)(4).
Nat’l Wildlife Fed’n v. Norton, 332 F.Supp.2d 170, 172 (D.C. Cir. 2004).
Id. at 176.
Id. at 178.
Id. at 179.
226 F.Supp.2d 330 (D. Mass. 2002).
Id. at 341.
Id. at 342.
Id.

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2.4. Establish mechanisms to prevent or mitigate impacts or enhance ecosystems.
Rationale: Connected to cumulative impact analysis is responding to that information by
preventing or mitigating impacts or otherwise enhancing the ecosystem. Such protection,
mitigation, and enhancement activities are often associated with development and required
under several federal laws including, for example, the Federal Power Act (regulating dams),
the Endangered Species Act, the Marine Mammal Protection Act, and the Clean Water Act.
To connect prevention, mitigation, and enhancement to ecosystem-based management, thesesingle-activity actions must somehow be connected to a broader planning and management
system. This section briefly explores ways that protection, mitigation and enhancement
requirements are and could be connected to a broader planning and management system.
Example: Linking Mitigation and Planning—Connecting Mitigation to State Wildlife Action
Plans
Several federal and state laws require compensatory mitigation to address environmental harmand degradation associated with permitted and unpermitted human activities. The amount offunds spent annually to address mitigation requirements under the CWA Section 404, ESA
Section 10, federal natural resource damage programs, Federal Power Act, and the Northwest
Power Act exceeds $3.5 billion, with a vast majority of those funds relating to the CWA Section
404 activities ($2.9 billion).443 Often decisions to spend such funds are narrowly tailored toaddress case-by-case or permit-by-permit impacts without considering the role of mitigation in
the broader ecosystem management.
A 2007 report by the Environmental Law Institute explores and makes recommendations on
how to connect federal compensatory mitigation programs to State Wildlife Action Plans—plansdeveloped by all 50 states to better manage state wildlife and habitat.444 The notion here is thata number of options may be available to address mitigation, and by consulting a larger plan,compensatory mitigation funds may help achieve both targeted mitigation objectives as required
under the law, as well as contribute to larger ecosystem objectives. Recommendations include,for example, considering the broader needs of state wildlife and habitat as identified in the State
Wildlife Action Plans to inform the expenditure of species-specific mitigation activities under the
ESA.

443  ELI, Mitigation of Impacts to Fish and Wildlife Habitat: Estimating Costs and Identifying Opportunities [hereinafter Mitigation Opportunities] 2 (2007).
444 Id.

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Example: Coordinating Mitigation and Restoration across a Watershed—Columbia River
Basin Hydropower
The Bonneville Power Administration regulates hydropower in the Pacific Northwest inaccordance with the Northwest Electric Power Planning and Conservation Act (Northwest PowerAct).445 In addition to energy development, the Act establishes requirements “to protect, mitigate
and enhance fish and wildlife” in the Columbia River watershed.446 Rather than simply address
mitigation on a project-by-project basis, the law establishes the Pacific Northwest Electric Powerand Conservation Council.447
The Council has two functions related to mitigation: (1) give due consideration to protection,
mitigation, and enhancement measures when developing energy plans and (2) create a Fish
and Wildlife Program. To achieve its protection, mitigation, and enhancement objectives, theFish and Wildlife Program creates basin-wide and sub-basin plans that guide decisions aboutprotection, mitigation, and enhancement projects. After internal review and an independentscientific review, the Program chooses projects that support the plans.448 In this way, mitigation
activities are not simply performed on a case-by-case basis but are developed in the context of
the regional ecosystem needs.

2.5. Minimize cumulative impacts when developing and implementing incentive-based
management approaches.
Rationale: Government agencies often use incentives to encourage voluntary actions that will
minimize human impacts on the environment. Government-based incentives can target othergovernment agencies—e.g., federal government incentives for states to implement a program—or can target the private sector—e.g. government incentives to undertake specific conservation
practices related to agriculture. The private sector may also develop incentive-based
approaches to achieve sustainability objectives, including, for example, the creation of ecolabel
programs. In many instances, such incentive-based approaches are single-sector or single-issue
in focus. To move toward EBM, incentive-based programs should be framed and developed
within an EBM context and should consider where possible how to address cumulative impacts
within and across sectors.

445 Pacific Northwest Electric Power Planning and Conservation Act, Pub. L. No. 96-501; codified as 16 U.S.C. § 839 et seq.
(1980).
446 § 839.
447 For a summary of the Council’s role in protection, mitigation, and enhancement, see ELI, Mitigation Opportunities, supra note
443 at 97-98.
448 Id. at 99.

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Example: Federal Support for State Action—Coastal Zone Management Act
One of the best examples of a cross-sector incentive-based ocean and coastal program is the
program established under the Coastal Zone Management Act (CZMA). Coastal states develop
coastal zone programs in exchange for federal grants and the authority to require federal actions
to be consistent with the enforceable policies of approved coastal zone programs. These two
incentives provide the basis for state participation in this federally conceived program. While
the CZMA does not create specific requirements to minimize unsustainable human impacts, theexpressed policies and substantive requirements support the development of programs designed
to do just that.
In the CZMA Congress declares that it is the national policy to “preserve, protect, develop,
and where possible, restore or enhance, the resources of the Nation’s coastal zone for this andsucceeding generations”449—a broad statement that indicates the need for a cross-sector approachto sustainable management of coastal resources. It calls upon the states to develop programs
that address the broad range of coastal issues in a way that maintains natural resources, whileachieving economic development.450 Substantive program requirements, which could be used toaddress cumulative impacts, include a requirement to develop “[b]road guidelines on priorities
of uses in particular areas, including specifically those uses of lowest priority” and a planning
process for siting and developing energy facilities.451
Example: Federal Support for Private Action—Vessel Buyback Programs
One example of a sector-based approach to reduce the impact of the sector is the development ofvessel buyback programs to reduce fishing fleet capacity and thereby reduce fishing pressure. In
2003, NMFS implemented a voluntary fishing vessel capacity reduction program for the Pacificgroundfish fishery that permanently removed 92 fishing vessels at a cost of approximately $46
million.452 One hundred and eight groundfish permit owners submitted bids to participate in
the program. Vessels were selected for removal based on a competitive bidding process. The
program requires all vessels to be sold, scrapped, or converted to nonfishing purposes, and theprogram notified the U.S. Maritime Administration to restrict the transfer of vessel ownership or
registry. These safeguards prevent the transfer of the overcapacity problem to another fishery in
the U.S. or elsewhere.
A U.S. General Accounting Office (GAO) study of three vessel buyback programs demonstrates
the challenges that vessel buyback programs must address to ensure that the incentives achieve

449 Coastal Zone Management Act § 303(1); 16 U.S.C. § 1452(1) (2005).
450 § 303(2); § 1452(2).
451 § 306(d); § 1455(d).
452 Pacific Fishery Management Council, Fisheries Management: Groundfish Vessel Buyback Program, at http://www.pcouncil.org/
groundfish/gfbuy.html.

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the desired social, economic, and environmental results.453 For example, NOAA spent $24.4
million to remove 79 vessels from the New England groundfish fishery but failed to prevent
inactive vessels from engaging in the fishery. Since the buyback 62 additional vessels became
active. The GAO also found that nine of the participants in the buyback program shifted to thelobster fishery and thereby increased capacity in a fishery that was classified as overfished.
Example: Market-Based Approaches to Ecosystem Resiliency—Willamette Partnership
One of the classic examples of using markets to reduce human impact on the environment is thecreation of cap-and-trade markets to reduce nitrous oxide and sulfur dioxide—two atmosphericpollutants that cause acid rain among other things. Regulators set the total allowable pollutant
emissions, and industries can then buy, sell, and trade emissions credits to prevent exceeding
emission limits. This and many other market-based approaches are single impact in scope.
The Willamette Partnership, on the other hand, is developing a broader approach and seeks to“include[] transactions related to the full range of services that the ecosystem provides, fromstoring carbon and cooling river waters to mitigating floods and providing habitat for fish andwildlife.”454 To create this market, the Partnership is developing an integrated ecosystem credit
calculator. The first version is designed to allow calculation of credits and debits for water
quality, wetlands, salmonid habitat, and prairie with plans to expand the calculator to include
other credit types.455 With the expanding development of ecosystem service valuation, such an
approach could be developed to support marine EBM.

3.

Restoring Ecosystems after Degradation

3.1. Respond and restore after illegal discharge or injury.
Rationale: Illegal discharge or injury to the environment can lead to ecosystem degradationand loss of ecosystem services. Several federal and state laws exist to address so-called natural
resource damages in the marine and coastal environment.456 In most instances, the party causing
the injury is held liable for the response, clean-up, and restoration of natural resources tobaseline conditions.

453  U.S. General Accounting Office, Report to House Committee on Resources: Commercial Fisheries: Entry of Fishermen Limits Benefits of
Buyback Programs (2000), available at http://www.gao.gov/archive/2000/rc00120.pdf.
454 Willamette Partnership, Who We Are, at http://www.willamettepartnership.org/.
455 Bobby Cochran, Defining an Integrated Ecosystem Credit Calculator, 2 Partnership News Report 1-3 (Jan 26, 2009).
456 For a comprehensive review of natural resource damage laws, see Valerie Ann Lee, P. J. Bridgen & Envt Int’l Ltd., The Natural
Resource Damage Assessment Deskbook: A Legal & Technical Analysis (2002).

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Example: Liability under the Comprehensive Environmental Response, Compensation, andLiability Act and the Oil Pollution Act
The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)and the Oil Pollution Act (OPA) make responsible parties liable for the clean-up of hazardous
substances (CERCLA) and oil (OPA) and for the cost to restore natural resources to their preinjury conditions.457 The laws are narrowly tailored to ensure that recovered funds are used
for the restoration, rehabilitation, replacement, or acquisitions of natural resources that weredamaged. However, as with mitigation measures, expenditures for natural resource damages
could be evaluated within the context of an EBM program and plan to satisfy both specificrestoration requirements related to the injury and broader objectives related to the comprehensive
management of the entire ecosystem.458
Example: Liability in National Parks and National Marine Sanctuaries
In addition to CERCLA and OPA, national parks and national marine sanctuaries, parks andsanctuaries have added protection through the Park System Resource Protection Act andthe National Marine Sanctuaries Act.459 Both laws provide place-based protection and holdresponsible parties liable for any means of injury to park and sanctuary resources.460 This
includes, for example, damage to Florida National Marine Sanctuary coral reefs and sea grassbeds due to ship groundings, propellers, and anchors.461 When developing marine spatial
management programs, lawmakers and regulators could consider the creation of a morecomprehensive liability scheme to help minimize injuries to the natural environment.

457 Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. (2000); Oil Pollution
Act, 33 U.S.C. §§ 2701 et seq. (1990).
458 For an examination of use of State Wildlife Action Plans to inform natural resource damage expenditures, see ELI, Mitigation Opportunities, supra note 443 at 63-84.
459 Park System Resource Protection Act, 16 U.S.C. § 19jj (2000); National Marine Sanctuaries Act, 33 U.S.C. §§ 1401 et
seq. (2000).
460 Lee, Bridgen & Envt. Int’l Ltd., supra note 456 at § 3.3.
461 A comprehensive list of natural resource damage cases is on file with authors. For a summary of this information, see
ELI, Mitigation Opportunities, supra note 443 at 63-84.

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3.2. Respond and restore after permitted degradation.
Rationale: Despite an enormous number of federal, state, and local laws, regulations, andpolicies geared toward preventing ecosystem degradation, habitat loss, and species decline,
many ocean and coastal ecosystems are degraded and fail to support a full suite of ecosystemservices. As many of the Handbook examples demonstrate, regional ocean governance programs
often arise from the recognition that existing management systems fail to prevent ecosystemdegradation, and many regional efforts focus on restoration. Some sector-or issue-specific laws
create restoration requirements. For example, overfished fisheries trigger rebuilding requirements
under the Magnuson-Stevens Fishery Conservation and Management Act, and depletion ofindividual species and populations to the point of endangerment triggers the Endangered Species
Acts. In addition to sector-based examples, this section highlights regional and cross-sector
approaches to restoration of marine and coastal ecosystems used to address cumulative humanimpacts.
Example: Rebuilding Requirements—Magnuson-Stevens Fishery Conservation andManagement Act
In addition to a robust scientific-based program geared at preventing human impact beyond
sustainable levels, federal law requires fisheries managers to take specific actions to recover a
stock that is overfished or depleted. Under the Magnuson-Stevens Fishery Conservation andManagement Act (MSA), fisheries are managed according to ten National Standards.462 National
Standard 1 requires that management measures prevent overfishing, and National Standard
8 calls for consistency with conservation requirements including preventing overfishing andrebuilding overfished stocks when taking into account and applying socioeconomic data.
While MSA creates a management system designed to avoid overfishing and depletion of fishstocks, in many instances it has failed to maintain harvests below the maximum sustainable
yield. The plan must “specify objective and measurable criteria for identifying when the fishery
to which the plan applies is overfished . . . . and, in the case of a fishery which the Council or
the Secretary has determined is approaching an overfished condition is overfished, containconservation and management measures to prevent overfishing or end overfishing and rebuild thefishery.”463 When stocks are overfished, the fisheries councils must develop fishery management
plans that include conservation and management measures necessary and appropriate torebuild overfished stocks.464 Therefore, the MSA creates a management system that preventsunsustainable use, creates objective and measurable criteria to determine when unsustainable
harvest has been reached, and creates requirements to recover stocks to sustainable levels.
462
463
464

MSA, § 301(a); 16 U.S.C. § 1851(a) (2007).
§ 303(a)(10); § 1853(a)(10)§ 303(a)(1)(A); § 1853(a)(1)(A).

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Example: Recovery Requirements—Endangered Species Act
The great majority of such endangered or threatened species can attribute their status to humanactivities that impact the species or their habitats. The Endangered Species Act (ESA) has two
approaches to aid the recovery of a species so that it once again is not threatened with extinction.
First, the ESA prohibits the further take of the endangered species with some exceptions andthereby limits harmful activities.465 Second, the Secretary of Commerce (for most marine
species) or the Secretary of the Interior is required to develop and implement recovery plans that
include site-specific management actions, objective and measurable criteria to determine when aspecies can be removed from the list of endangered and threatened species, and estimates of thetimeline for achieving the plan’s objectives.466
While a single-species (not an ecosystem) is the focus, the ESA is cross-sector in approach. Its
take limitations and recovery actions apply across sectors. Also, it is often provides a placebased approach focusing on the threatened or endangered species itself and the habitat needed
for its survival. Endangered and threatened species can form the basis of an EBM program.
For example, endangered salmon and orcas are viewed by some as two of the drivers for thedevelopment of the Puget Sound Partnership. ESA activities, including development andimplementation of recovery plans, could be better coordinated with EBM efforts to develop morecomprehensive management plans and strategies that could benefit both the individual threatenedor endangered species as well as the broader ecosystem.
Example: Regional Restoration Programs—Chesapeake Bay Program and Puget Sound
Partnership
Both the Chesapeake Bay Program and Puget Sound Partnership were developed to address andrecover degraded ecosystems. The problems of the Chesapeake Bay were identified in the 1970s,
and the Bay Program was initiated in 1983 to minimize impacts and restore habitats. Habitat
restoration, pollution reduction programs, and fisheries management are aimed at reducing
additional human impacts and restoring ecosystem health.467 Despite more than 28 years ofeffort, the Bay Program has yet to reach its restoration goals468—an indication of the enormous
difficulty of restoring damaged ecosystems in the face of continued development and expanding
human populations.

465 Endangered Species Act, § 9(a); 16 U.S.C. § 1538(a) (2000).
466 § 4(f); § 1533(f).
467 Chesapeake Bay Program, Bay Restoration, at http://www.chesapeakebay.net/bayrestoration.aspx?menuitem=13989.
468 Chesapeake Bay Program, Restoration and Protection Efforts, at http://www.chesapeakebay.net/status_restoration.
aspx?menuitem=15047.

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The Puget Sound Partnership, established by Washington state law in 2007, aims to restore
Puget Sound by 2020. It has recently published its Action Agenda, which includes priorities forrestoration and the protection of intact systems.469 Agenda actions include implementing andmaintaining priority restoration projects with near-term actions to implement salmon recovery
plans, large-scale restoration at the mouth of major river systems, and specifically restoring
hundreds of acres of Puget Sound estuarine environments.470

469
470

Partnership Action Agenda, supra note 26.
Id.

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VI. TRADEOFFS
A. 	Tradeoffs In Brief
Making explicit tradeoffs among potentially competing and conflicting ocean and coastal uses
is an essential component of EBM. Done correctly, creating a system that explicitly makes
tradeoffs should lead to management that (1) addresses cross-sector ecosystem impacts, (2) isfair, and (3) enables the identification and implementation of win-win scenarios.471
Most existing management practices are single-sector or single-issue in focus—e.g., fisheries
management, land use management, and water quality management. To ensure ecosystem
health, these strategies may include curtailing activities within a sector. This could mean, forexample, fisheries actions such as reducing the total allowable catch or limiting the pool oflicense holders, or water quality actions such as reducing discharge of pollutants by decreasing
the number of discharging facilities or tightening the allowable discharges from all facilities.
Some of these decisions may include consideration of cross-sector impacts and broader
ecosystem considerations. For example, federal agencies must consult with NOAA regarding
activities that may impact essential fish habitat.472
While sector-based management is necessary, it is not sufficient for addressing the cumulative
effects of human activities on ecosystems.473 Human impacts are not merely additive—they caninteract synergistically to cause greater impacts than the sum of the individual impacts. Also,
while many sector-based laws and regulations set in-sector limits to prevent overutilization orexcess degradation of the ecosystem, there are few mechanisms that consider and create limits
for all activities collectively. This means that the full suite of human activities may injure theecosystem, while still meeting sector limits when evaluated in isolation.474
Implicit in the consideration of tradeoffs is the concept of some threshold measure of overall
impact that the ecosystem can absorb while still retaining desired ecosystem services. Without
471  See, e.g., Heather M Leslie, Andrew A Rosenberg & Josh Eagle, Is a New Mandate Needed for Marine Ecosystem-BasedManagement? Frontiers Ecol & Envt 43 (2008) (discussing the pros and cons of ecosystem-based management, including a
discussion of the relative merits of a new system of tradeoffs); c.f. Heather L. Keough & Dale J. Blahna, Achieving Integrative,
Collaborative Ecosystem Management, 20 Conservation Biology 1373, 1374 (2006) (arguing for a “tension approach” rather thana tradeoffs approach. The tension approach integrates and balances social, economic and ecological goals, while, the authors
argue, “[t]rade-off approaches may exacerbate management problems because socioeconomic or ecological concerns are prioritized to the extent that they dominate at the expense, or the exclusion, of the other.”)
472 MSA, § 305(b); 16 U.S.C. § 1855(b).
473  See, e.g., Leslie, Rosenberg & Eagle, supra note 471; see also Halpern et al., Cumulative Impacts, supra note 297.
474 See, id., for a more thorough analysis of cumulative impacts.

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having a target or proxy measures for maximum ecosystem use, it will be difficult to establish ascientifically rigorous system of tradeoffs.
Major obstacles to making tradeoffs to achieve healthy and resilient marine ecosystems include:•••

Lack of scientific data to evaluate ecosystem service values and determine the thresholds
that will maintain healthy and resilient oceans;475
Insufficient legal mechanisms to decide upon, mandate, and enforce tradeoffs between
competing uses;476 andFailure of laws that do create priority uses to appropriately consider the need to maintainoverall ecosystem health and resiliency.477

There are few existing regional ocean management programs that make proactive tradeoffs
among potentially competing and/or conflicting uses. This section focuses on the identification
and use of cross-sector tradeoff approaches that could be incorporated into EBM systems (Figure11). In particular, this section examines approaches to valuing ecosystems and their services,making explicit tradeoffs, and resolving disputes once decisions have been made.

475 See, e.g., Leslie, Rosenberg & Eagle, supra note 471 at 48; see also National Research Council, Valuing Ecosystem Services:
Toward Better Environmental Decision-Making 8 (2004) [hereinafter NRC, Valuing Ecosystem Services]
476 Id.
477 For example, the International Joint Commission, tasked with managing water quality and quantity between U.S. andCanada, is mandated to prioritize use of shared water bodies. The priority uses do not include conservation.

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Figure 11. Approaches to Making Tradeoffs
TRADEOFF APPROACHES

Current System
M ana gem ent silos w ith fe w
tradeoff m echanism s

W ate rQ u a lity

Hum anH e a lth

L ivin g

Land
U se

P ro te ct
H a b ita t

R es.

Industry

S itin g

Siloed management decisions
impact entire ecosystem
in a cumulative way

1. Value societal, economic, and ecosystembenefits and harms.
• D evelo p s ystem to qu antita tively va lue
ecos ys tem services;• U se experts or p ub lic proce ss to determ ine
va lues.
2. Make explicit tradeoffs.
• E stab lish a g overnance pro cess to m ak edecisio ns base d o n consen sus• M and ate prioritizing uses b ased o n E B M
principles and includ ing co nservatio n an dpreservatio n am ong th e priorities.
• U ndertak e m arine spatial plann ing andm anagem ent• U se m ark et-based appro aches to m ak e
tradeoffs
3. Resolve disputes.
• C reate a s ystem of conflict resolution
am ong sectors.

Figure 13 illustrates the siloed or sector-based nature of ocean and coastal management using six
management categories as examples. While the management occurs in silos, the effects of management
decisions—human use of ecosystems—affects the entire ecosystem. Developing a system of explicit
tradeoffs allows proactive decision-making across management silos.

Valuing ecosystem services is an essential step in making tradeoff decisions that strive tobalance human use with functioning ecosystems. As noted by the National Research Council,
valuing ecosystem services requires integrating ecology and economics, and “[t]he fundamental
challenge of valuing ecosystem services lies in providing an explicit description and adequate
assessment of the links between the structures and functions of natural systems, the benefits …
derived by humanity, and their subsequent values.”478 However, McCauley (2006) argues forcaution with adopting the ecosystem-service rationale for conservation, because, for example,
not all ecosystem function is beneficial to humans and the utility of the service may change as
industries and technologies change.479
To achieve EBM, ecosystem service valuation should be linked to decision-making that retains
essential ecosystem services based on the value of those services. This can be achieved,in part, by using the valuation result to make explicit tradeoffs among potential ocean andcoastal uses that may compromise or enhance ecosystem services, with the goal of allowing
sustainable human use.480 In addition to creating a system of tradeoffs to maintain ecosystem
478
479
480

NRC, Valuing Ecosystem Services, supra note 475.
Douglas J. McCauley, Selling Out on Nature, 443 Nature 27 (2006).
Id. at 6 (recommending the use of economic valuation as a means of evaluating tradeoffs among policy choices).

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services, tradeoffs should be created in a way that establishes a fair system of human use among
competing or conflicting sectors. This can happen in two ways—at the outset through planning,
and after planning is completed through conflict resolution systems. This chapter, therefore,
considers both the creation of governance frameworks that allow tradeoffs at the planning stage,
as well as governance frameworks that can be adopted to address dispute resolution.

B. 	Tradeoffs In Practice1.

Value Societal, Economic, and Ecosystem Benefits andHarms

1.1. Develop a system to quantitatively value ecosystem services.
Rationale: One of the challenges with developing and implementing a system of tradeoffs isthe lack of mechanisms for appropriately valuing ecosystem services.481 Several efforts areunderway to comprehensively value ecosystem services, and examples are provided here. Oncedeveloped, these valuation approaches should inform EBM planning and implementation.482
Another approach that could prove useful in the absence of a comprehensive valuation system
is using values derived from existing management programs. These include for example, costbenefit analyses that are conducted under NEPA or valuation of resources to determine liability
in natural resource damages cases.

Example: Valuing Ecosystem Services—Natural Capital Project
Together, the Woods Institute for the Environment at Stanford University, The Nature
Conservancy, and the World Wildlife Fund launched the Natural Capital Project in 2006. The
goal of the project is to “provide maps of nature’s services, assess their values in economic
and other terms, and … incorporate those values into resource decisions.”483 The Project481  For a summary of ecosystem valuation, see Ecosystem Valuation, at http://www.ecosystemvaluation.org/default.htm;
see also L. Ledoux & R.K. Turner, Valuing Ocean and Coastal Resources: A Review of Practical Examples and Issues for Further
Action, 45 Ocean & Coastal Mgmt 583 (2002); see also, NRC, Valuing Ecosystem Services, supra note 475.
482 For a description of one approach to linking ecosystem services to decision-making, see Gretchen C. Daily et al., Ecosystem Services in Decision Making: Time to Deliver, 7 Frontiers Ecol. & Envt. 21 (2009).
483 Natural Capital Project, About the Natural Capital Project, at http://www.naturalcapitalproject.org/about.html#Solution.

116 Environmental Law InstituteOCEBM Handbook

primarily includes ecosystem services pertaining to freshwater and terrestrial ecosystems. To
accomplish its goals, the Project is developing new scientific methods, new financial tools, andrecommending policies. It has already developed two tools. InVEST is a publically available
method to model and map delivery, distribution, and economic value of ecosystem services:484 its
goal is to support decision-making based on ecosystem service valuation.485 With this tool, users
can evaluate the economic value of resources and human activities, as well as the biophysicalcosts and benefits. The Project is also creating a Natural Capital Database that includes strategies
and outcomes from conservation programs worldwide.
Example: Valuation of Natural Resources—Natural Resource Damage Cases
Two federal statutes—the Oil Pollution Act and the Comprehensive Environmental Response,
Compensation, and Liability Act—and many state laws hold responsible parties liable forrestoring natural resources that were injured by hazardous waste or oil spills.486 Federal and statestatutes also require responsible parties to restore or pay the costs of restoring natural resources
for any injury in specific protected areas including national parks and marine sanctuaries. As aresult of these laws and the ensuing litigation, the field of natural resource damages has led tothe development of various methods of natural resource valuation. Agencies engaged in natural
resource damage assessments have regulations and guidance on methods of restoration costing,which could be applied when making tradeoff decisions.
For example, the Department of Interior uses several methodologies for estimating restoration
costs including:
•
•
•
•
•
•

Comparison methodology compares the costs of previous similar projects to determine
costs of an anticipated project;
Unit methodology estimates the cost of each restoration action “(e.g., the cost per adultbird produced by a breeding program);”
Probability methodologies provide ranges of costs for restoration action, acknowledging
the inherent uncertainty in valuation;
Factor methodology uses the proportion or factor of an existing cost estimate andapplies it at a different scale;Time methodology estimates cost based on the time needed to complete a task;
Cost- and time-estimating relationships integrate the cost/time with the scale of therestoration requirements.487

484 Natural Capital Project, Natural Capital Modeling and Mapping Tool
485 Daily et al., supra note 482.
486 For additional information, see Lee, Bridgen, & Envt. Int’l Ltd., supra note 456.
487 Robert E. Unsworth & Timothy B. Petersen, A Manual for Conducting Natural Resource Damage Assessment: The Role of Economics 35(1995) (prepared for Division of Economics, Fish and Wildlife Service, U.S. Department of Interior).

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These methods will likely be most applicable when a program is weighing various potential
restoration or mitigation responses rather than evaluating, for example, the costs and benefits of
new activities. It is also limited in that it applies only to natural resources and does not consider
other social and economic values.
Example: Valuing Costs and Benefits of Individual Action—NEPA Analysis
Under the National Environmental Policy Act (NEPA), federal agencies are required to develop
environmental impacts statements for any federal action likely to significantly affect theenvironment. In considering potential actions and alternative actions, agencies may conduct
cost-benefit analyses. According to NEPA regulations, cost-benefit analysis should include
a discussion of “the relationship between that analysis and any analyses of unquantified
environmental impacts, values, and amenities.”488 The regulation goes on to say that a costbenefit analysis “need not be displayed in a monetary cost-benefit analysis and should not be
when there are important qualitative considerations.”489
Examining relevant past environmental impact statements, as well as applying NEPA cost-benefit
analyses to potential activities, could help regional bodies make tradeoff decisions in the absenceof a more robust system for valuing ecosystem services and making tradeoffs.

1.2. Use experts or a public process to determine values.
Rationale: In the absence of a quantitative ecosystem service valuation program, EBM
programs can use expert opinion or public opinion to determine the value of the resources
and the activities that occur in the ecosystem. Many regional governance approaches use
experts and the public to shape management decisions, which are often implicitly, if not
explicitly, geared at balancing a range of potentially competing and conflicting uses.
Example: Expert Opinion to Value Resources—Massachusetts Ocean Management Initiative
The Massachusetts Ocean Management Initiative is combining scientific information, expert
opinion, and public input to develop its ocean management plan. In accordance with the
Massachusetts Oceans Act, the Secretary of Energy and Environmental Affairs is required to“identify appropriate locations and performance standards for activities, uses and facilities,” aswell as “identify and protect special, sensitive or unique estuarine and marine life and

488
489

40 C.F.R. § 1502.23.
Id.

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habitats.”490 This proactive zoning approach necessarily requires tradeoff decisions to be maderelated to siting ocean activities and protecting special, sensitive or unique habitats and species.
To develop this plan and make these tradeoffs, the planning staff have conducted public listening
sessions as well as interviews to understand the goals that the public would like to see included
or not included in the plan.491 In addition, expert working groups are using existing scientificinformation and expert opinion to support the identification of special, sensitive or unique species
and habitats and areas of potential development. For example, the Habitat Work Group reliedon its expert opinion to develop three “tracks” to support the determination of priority areas: (1)mapped areas/resources with special legal protection; (2) habitat critical to providing specific life
stage support for important species or assemblages of species; and (3) habitats determined to be
unique and/or sensitive based on abiotic parameters.492 It also used expert opinion to determine“important” species or assemblages of species and used legal/regulatory data to determine
legally protected areas and resources and identification of the locations of important species andassemblages.493
Example: Challenges of Multi-Stakeholder Collaborative Processes—CALFED Program
In response to drought, decreased water quality, and degraded ecosystems, four federal
agencies—EPA, Bureau of Reclamation, National Marine Fisheries Service, and Fish andWildlife Service—formed “Club Fed.” In June 1994, Club Fed and California signed the San
Francisco Bay Delta Agreement (the Accord) initiating a long-term planning process to improve
the Delta and increase the reliability of its water supply. The Accord became the foundation of
CALFED.494
In June 2000, CALFED developed a Framework for Action.495 The Framework gives a
broad overview of the anticipated actions of Stage 1, which covers the first 7 years of the
30-year program and which is intended to build the foundation for long-term actions. The
Framework addresses specific program components such as: ecosystem restoration, watersheds,
environmental water account and ESA commitments, water quality, levees, science, governance,
and a regional approach to ecosystem and water management. However, CALFED, like manycollaborative programs, has struggled to make the difficult decisions to limit some activities inorder to maintain the health of the ecosystem. Several people, long-involved with CALFED,
identify as challenges: consensus-building to the point that nothing is accomplished, a vision
490 Mass. Gen. Laws ch. 21A § 4C (2008).
491  Consensus Building Institute, Massachusetts Oceans Planning Public Listening Sessions: Draft Summary of Issues, available at http://
www.mass.gov/Eoeea/docs/eea/oceans/120308_list_session_summ.pdf.
492 Executive Office of Energy and Environmental Affairs, DRAFT Ocean Planning: Habitat Working Group Report 5 (2008), available at
http://www.mass.gov/Eoeea/docs/eea/oceans/112608_oceanhabitat_wkgp_draft.pdf.
493  Id. at 8-23.
494 The San Francisco Bay-Delta Agreement (Dec 15, 1994), available at http://www.calwater.ca.gov/content/Documents/library/SFBayDeltaAgreement.pdf.
495 Available at http://resources.ca.gov/fnlfrmwk.pdf.

Ocean and Coastal Ecosystem-Based Management: Implementation Handbook 	119OCEBM Handbookof win-win situations for all, and a system that lacks the authority and accountability needed tomake difficult decisions.496

2.

Make Explicit Tradeoffs

2.1. Establish a governance process to make decisions based on consensus.
Rationale: Previous research demonstrates that consensus-based decision-making can be
an important component of an effective collaborative ecosystem management system.497
Keough and Blahna (2006) argue that “[i]n addition to being early (before decisions are made),inclusive, and interactive, collaboration requires joint decision making through consensus-based
approaches.”498 Consensus does not require unanimity but typically reflects a majority or
super-majority view. It should be noted, however, that consensus-based decision making canplay to the least common denominator leading to less-than-ideal decisions, avoidance of difficult
decisions, or lack of innovative approaches.499
Example: State Approach—North Carolina Coastal Habitat Protection Plan
The 1997 North Carolina Fisheries Reform Act requires the Department of Environment,
Health, and Natural Resources to develop a Coastal Habitat Protection Plan as a joint
effort among the departmental divisions of marine fisheries, water quality, and coastal
area management.500 The Act requires members of the Coastal Resources Commission,
the Environmental Management Commission, and the Marine Fisheries Commission toreview and revise the draft on a consensus.basis. If the Commissions cannot come toagreement, the Act creates a dispute resolution process—a six-member conference committee
is selected to facilitate the resolution.501 Once created, the Commissions are required toensure that their actions are consistent with the Plan to the maximum extent practicable.502

496 See Colin Sullivan, California: Has the Ambitious CALFED Water-Supply Plan Run Aground?, Greenwire (Sept. 17, 2008), at
http://www.eenews.net/Greenwire/2008/09/17/1.
497 See Keough & Blahna, supra note 471 at 1374-75; see also Cary Coglianese, The Limits of Consensus, 41 Environment 28(1999) (arguing that consensus-building does not ensure better decisions, save time or reduce conflict).
498 Id. at 1374.
499 See, e.g., Robin Gregory, Tim McDaniels & Daryl Fields, Decision Aiding, Not Dispute Resolution: Creating Insights through
Structured Environmental Decisions, 20 J. Pol’y Anal. & Mgmt. 415 (2001).
500 General Assembly of North Carolina, S.L. 1997-400 (House Bill 1097), § 143B-279.8 (1997).
501  § 143B-279.8(b).
502 § 143B-279.8(c).

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Example: Federal Approach—Regional Fishery Management Councils
Under the Magnuson-Stevens Fishery Conservation and Management Act, regional fishery
management councils are responsible for developing and amending fishery management plans.503
The councils are composed of voting and non-voting members. A majority of voting members
must be present to establish a quorum, and each decision must be made by a majority of thevoting members present.504 While this type of approach can serve as a model for a consensusbased approach, it should be noted that several scholars have criticized the regional fishery
management councils for failing to appropriately represent all stakeholders, especially theconservation community.505 This is a separate issue, but one that may limit the ability to achievedecisions based upon EBM principles.

2.2. Mandate priority uses based on EBM principles and include conservation andpreservation among the priorities.
Rationale: Establishing priorities at the outset may help direct decision-making and program
development. Also, creating a system of priority uses may help decide cases of user conflict that
may arise. Several laws establish priority of use or access to resources that could serve as models
for an EBM program established by law or soft-law agreement.
Example: National Wildlife Refuge System
While the National Wildlife Refuge System is largely based on preservation and not multi-use
management, its lessons could be applied in the marine EBM context. One law among many
related to the Refuge System is the 1962 Recreation Act, which requires “that public recreation
be permitted in a refuge ‘only to the extent that is practicable and not inconsistent with . . . theprimary objectives for which each particular area is established.’”506 It also includes an elementof the precautionary approach, prohibiting recreation unrelated to the primary purpose of thelegislation until the Secretary of the Interior determines that the use will not interfere with theprimary purpose of the refuge, and that funds are available to properly manage the activity.507

503 MSA § 302(h); 16 U.S.C. § 1852(h).
504 § 302(e); § 1852(e).
505 See e.g., Josh Eagle, Sarah Newkirk, Barton .H. Thompson, Taking Stock of the Regional Fishery Management Councils (2003);
Thomas A. Okey, Membership of the Eight Regional Fishery Management Councils in the United States: Are Special Interests
Over-Represented?, 27 Marine Pol’y 193 (2003).
506 Robert L. Fischman, The National Wildlife Refuge System and the Hallmarks of Modern Organic Legislation, 29 Ecology L.
Q. 457, 477-478 (2002) (quoting the Recreation Act).
507 Id. at 478.

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The Refuge System is also managed in accordance with the 1966 Refuge Administration Act,
which prohibits disturbances, takes, entry, and use with only three exceptions: (1) by authorized
persons; (2) activities allowed as expressed in the founding documents; and (3) activities
permitted by regulation.508 This is another precautionary approach to management, which
prohibits most uses in the absence of express provisions stating otherwise. The Administration
Act also supports the prior Recreation Act, requiring that all permitted uses be compatible withthe major purposes of the establishing documents.509
Finally, the Refuge System was revised with the passage of the National Wildlife Refuge System
Improvement Act of 1997, which creates a conservation mission and outlines uses according topriority.510 According to the Act, “[t]he mission of the System is to administer a national networkof lands and waters for the conservation, management, and where appropriate, restoration of thefish, wildlife, and plant resources and their habitats.”511 This can be interpreted as the primaryuse, since all other uses are subordinate to it.512 Secondary uses are wildlife-dependent uses
including hunting, fishing, wildlife observation and photography, environmental education, andenvironmental interpretation.513 The Act does not specify a hierarchy among these wildlifedependent uses. Finally, other uses are allowed, providing they do not interfere with theconservation mission and the wildlife-dependent uses.514
Example: International Joint Commission
The International Joint Commission (IJC) provides one example of an agreement that setspriorities in a legally binding treaty. Article VIII of the Boundary Waters Agreement provides
the IJC with the authority to resolve disputes. Article VIII also provides the following order ofprecedence of use when deciding conflicts and states that uses that conflict with this list are notpermitted:
1. Uses for domestic and sanitary purposes;
2. Uses for navigation, including the service of canals for the purposes of navigation;
3. Uses for power and irrigation purposes.515
The treaty establishing the IJC does not list conservation and preservation as priority uses, sowhile this model is useful in understanding how priorities may be established in a legally binding
document, it does not have priorities based on EBM principles. Another more general limitation

508
509
510
511 
512
513 
514
515

Id. at 485-486.
Id. at 487-488.
Id. at 514-538.
Id. at 517-518 (quoting the Act).
Id. at 528.
Id. at 526-527.
Id. at 530.
Boundary Waters Treaty, Art VIII (1909).

122 Environmental Law InstituteOCEBM Handbookof this approach is that it may reduce flexibility in decision-making at a later stage. As new uses
are conceived, there may not be appropriate mechanisms to allow development of such uses.
Example: National Marine Sanctuaries Program
The National Marine Sanctuaries Act (NMSA) provides an example of an approach that could
be adopted in another setting, and also provides a specific mechanism for establishing EBM
programs in federal and state waters. First, a conservation priority is created in the purpose andpolicies of the Act: “The purpose and policies of this chapter are--…(6) to facilitate to the extent
compatible with the primary objective of resource protection, all public and private uses of theresources of these marine areas not prohibited pursuant to other authorities.”516
Once sanctuaries are designated, the Secretary of Commerce is required to prepare “[a] resource
assessment that documents—(i) present and potential uses of the area, including commercial andrecreational fishing, research and education, minerals and energy development, subsistence uses,
and other commercial, governmental, or recreational uses.”517 Also, the terms of the designationmust include “the types of activities that will be subject to regulation by the Secretary to protect
those characteristics” that give the sanctuary its value.518
The NMSA does not prioritize uses beyond establishing the primary objective of resource
protection. However, there may be opportunities to set up priorities more explicitly when
designating the types of activities subject to regulation and developing regulations based on those
designations.

2.3. Undertake marine spatial planning and management.
Rationale: Marine spatial management—also called marine spatial planning, area-based
management, and ocean zoning—is a management approach that delineates permissible uses in
specific geographic areas of ocean waters. Done correctly, marine spatial management provides
a proactive way to address tradeoffs among competing and conflicting uses.519 Marine spatial
management as an EBM tool means that decisions about where to allow different activities
would be based on maintaining ecosystem function as a primary objective.

516 National Marine Sanctuaries Act, § 301(b)(6); 16 U.S.C. §1431(b)(6).
517 § 394(a)(2)(B); § 1434(a)(2)(B).
518 § 394(a)(4); 16 U.S.C. § 1434(a)(4).
519 Halpern et al., Cumulative Impacts, supra note 297.

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Example: Zoning State Waters—Massachusetts Integrated Ocean Management Plan
The Massachusetts Oceans Act of 2008 is the first state law that requires ocean zoning beyond
the designation of marine protected areas or sector-specific zoning (e.g., fishery closure areas).
Under the Act, the Secretary of Energy and Environmental Affairs is required to develop an
integrated ocean management plan based upon EBM principles. The plan must “(i) set forth
the commonwealth’s goals, siting priorities and standards for ensuring effective stewardship of
its ocean waters held in trust for the benefit of the public; and … (xv) shall identify appropriate
locations and performance standards for activities, uses and facilities allowed…” under the Act.520
The plan also must identify and protect sensitive or unique estuarine and marine life andhabitats.521 The designations apply to all state agencies—“[u]pon the secretary’s adoption ofan ocean management plan, all certificates, licenses, permits and approvals for any proposed
structures, uses or activities in areas subject to the ocean management plan shall be consistent,
to the maximum extent practicable, with the plan.”522 The Oceans Act also creates a process forzoning state waters. The Secretary is the designated lead for development and implementation,
working in consultation with an ocean advisory commission and ocean science advisory council.
Example: Federal Zoning of Conservation Areas—Florida Keys National Marine Sanctuary
In 1997, the Florida Keys National Marine Sanctuary developed a comprehensive zoning schemein accordance with the fundamental conservation mandate of the National Marine Sanctuaries
Act.523 According to the Sanctuary management plan, “[t]he objectives for marine zoning
are to: … [m]inimize conflicting uses … [p]rotect resources and separate conflicting uses by
establishing a number of non-consumptive zones in areas that are experiencing conflict between
consumptive and non-consumptive uses and in areas experiencing significant declines.”524
The Sanctuary is zoned according to five designations: sanctuary preservation areas (SPAs),
ecological reserves, special-use areas, wildlife management areas (WMAs), and existing
management areas.525 Special-use areas include recovery areas, restoration areas, research-onlyareas, and facilitated use areas.526 State and federal agencies share jurisdiction in the Sanctuary.
NOAA is the primary agency responsible for SPAs, ecological reserves and special use areas.
NOAA and USFWS share jurisdiction in the WMAs. Federal and state agencies administer the
21 existing management areas.527

520 Mass. Gen. Laws ch. 21A § 4C (2008).
521 § 4C
522 § 4C
523  NOAA, Nat’l Ocean Service, Nat’l Marine Sanctuary Program, Florida Keys National Marine Sanctuary Revised Management Plan [hereinafter NMSP, Florida Keys Plan] 142 (2007), available at http://floridakeys.noaa.gov/pdfs/2007_man_plan.pdf.
524 Id. at 144.
525 Id. at 142.
526 15 CFR § 922.164
527 NMSP, Florida Keys Plan, supra note 523 at 133.

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Example: Zoning State Water and Beyond—Rhode Island Special Area Management Plan
The Coastal Zone Management Act defines a special area management plan (SAMP) as “acomprehensive plan providing for natural resource protection and reasonable coastal-dependent
economic growth containing a detailed and comprehensive statement of policies; standards
and criteria to guide public and private uses of lands and waters; and mechanisms for timely
implementation in specific geographic areas within the coastal zone.”528 Rhode Island is using
its SAMP authority to develop an Ocean SAMP, undertaking marine spatial planning for bothstate and federal waters. One of the goals of the Ocean SAMP is to streamline federal andstate permitting processes and avoid the need for an EIS for any one project—the idea beingthat the research involved in the SAMP, and consequent zoning, should justify a “finding of no
significant impact” for the site chosen because the site will be selected for its lack of impact.529
The CRMC also intends to use the SAMP as a means of collaborating with federal agencies, anecessity given the extension of the spatial planning boundary into federal waters.530
2.4. Use market-based approaches to make tradeoffs.
Rationale: Another way to make tradeoffs is through the use of market-based approaches,
especially the creation of markets or cap-and-trade systems that allow resources to be bought,
sold, or traded. Most such markets to date focus on single sectors or single pollutants. For
example, the NOx and SOx cap-and-trade system creates a cap on NOx and SOx emissions
and allows individual companies to buy and sell emissions to meet the cap. Increasingly,
fisheries are employing such a system with the development of individual transferable quotas(also known as catch shares, individual fishing quotas, limited access privilege programs, anddedicated access programs). In these systems, fishery managers set the total allowable catch,and fishers have the opportunity to buy, sell and/or trade percentages of that catch or quotas.
Advantages of market-based approaches include providing flexibility to the regulated
community,531 facilitating conservation, and reducing conflict.532 General challenges include
monitoring and enforcement, developing a system of liability, and linking the market to longterm conservation and management goals. For more complex ecosystem markets, scientificchallenges exist to establishing the market, and program development is difficult when different
legal and regulatory requirements apply to different aspects of the market.

528 16 U.S.C. § 1453(17)529 R.I. Coastal Res. Mgmt. Council & Univ. of R.I., supra note 361 at 1 (2008).
530 Id.
531  See e.g., James Boyd, Kathryn Caballero & R. David Simpson, The Law and Economics of Habitat Conservation: Lessons
from an Analysis of Easement Acquisitions, Discussion Paper 99-32 (1999).
532 Rodney M. Fujita, Tira Foran & Ianthe Zevos, Innovative Approaches for Fostering Conservation in Marine Fisheries, 8Ecological Applications S139, S144 (1998).

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Example: Ecosystem Markets—Willamette Partnership and Bay BankIn Oregon, the Willamette Partnership is under development with the goal of creating an
ecosystem services market.533 With funding from EPA, the Partnership began as a water quality
trading program, adopting the following criteria for the program:
•
•
•
•
•

It is trusted by regulated parties, private land managers, regulatory agencies and the
public
It meets specific TMDL objectives for reducing temperature in the Willamette Riverdrives investments to restoration actions that provide the greatest environmental return to
the Willamette watershed
It provides financial incentives for land managers to restore priority areas on acoordinated schedule
It is capable of facilitating transactions in a variety of ecosystem service credit types that
address a full suite of ecological values.534

With additional support from the Natural Resources Conservation Service, the Partnership isdeveloping tools to create markets for “water quality improvements, wetland restoration, habitat
conservation and carbon sequestration” and ultimately creating an integrated ecosystem service
marketplace.535
The Bay Bank program is an ecosystem service market under development in the Chesapeake
Bay region. The goal of the program is to “provide one regional, multi-credit, ecosystem service
platform and build upon existing national, state, and local ecosystem markets, including carbon
sequestration, water quality protection, forest conservation, habitat conservation, and traditional
conservation programs.”536 To achieve its goals, the Bay Bank is in the process of developing
the LandServer—a web-based tool that will allow land owners to determine their eligibility toparticipate in the ecosystem services markets.537 In addition, the Bay Bank is developing its
Marketplace—an online platform to engage in ecosystem credit transactions.

533  Willamette Partnership, at http://www.willamettepartnership.org/.
534 Willamette Partnership, Counting on the Environment, available at http://www.willamettepartnership.org/ongoing-projects-andactivities/wp-accomplishments-for-counting.pdf.
535 Id.
536 Pinchot Institute for Conservation, The Bay Bank: A Marketplace of Opportunity, at http://www.pinchot.org/current_projects/baybank.
537 Bay Bank, The Chesapeake’s Ecosystem Service Marketplace, at http://www.thebaybank.org/.

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3.

Resolve Disputes

3.1. Create a system for resolving disputes among sectors.
Rationale: While many public participation processes are designed to avoid future conflict,disputes do still occur over the course of implementation. Therefore, in addition to developing
participatory governance systems that seek to address problems proactively throughinformation-sharing, stakeholder input, and collaboration, EBM programs may wish to develop
robust dispute resolution mechanisms.538 Under U.S. law and policy, dispute resolution ranges
from traditional administrative or civil court cases to more comprehensive and collaborative
dispute resolution programs. Dispute resolution systems can include processes to address
individual concerns as well as the concerns of specific institutions and agencies.
Example: Supporting Program—U.S. Institute for Environmental Conflict Resolution
The U.S. Institute for Environmental Conflict Resolution (Institute for ECR) is an independent
federal agency tasked with helping resolve environmental disputes through mediation, training,and other services.539 The Institute for ECR provides both free and fee-based services. However,a federal agency must be involved in the dispute in order to utilize the Institute and its services.
Example: A State Governance Approach—Puget Sound Partnership
In accordance with state statute, the Puget Sound Partnership Council is required to provide
a forum for addressing and resolving problems and conflicts.540 The statute states that “[t]hecouncil may use conflict resolution mechanisms such as but not limited to, technical and financial
assistance, facilitated discussions, and mediation.”541 If the parties in dispute, together with theCouncil, are unable to solve the problem, the statute requires the Council to provide an analysis
and make recommendations to the governor, legislature, and other entities with jurisdictional
authority to resolve the conflict.542

538 For a summary of legal frameworks related to collaborative governance, see Pub. Pol’y Res. Inst., Univ. Montana, The
Legal Framework for Cooperative Conservation, Collaborative Governance Report 1 (2006), available at http://cooperativeconservation.gov/library/LegalFrameworkCC.pdf.
539 U.S. Institute for Environmental Conflict Resolution, About Us, at http://www.ecr.gov/HowWeWork/AboutUs.aspx#mission
540 ESSB 5372, § 17(4) (Wash. 2007).
541  § 17(4).
542 § 17(4).

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VII. CONCLUSIONS: MAJOR GAPS AND
BEST OPPORTUNITIESThis Handbook has been designed as a resource that describes potential options for EBM
implementation, focusing particularly on legal, policy and institutional approaches to engaging
in ecosystem planning, connecting science with management, developing accountable andadaptive governance systems, and crafting systems to address cumulative impacts and maketradeoffs. These Conclusions highlight some of the largest governance gaps in EBM concepts
and implementation, and the best opportunities for achieving success in practice.
Ecosystem Planning
Developing an EBM plan involves consideration of complex issues and requires input from a
broad set of stakeholders who have different goals and values. Thus, one of the chief challenges
is to create a strategic, targeted, and achievable plan. A variety of adaptive management
frameworks, including the NOAA Integrated Ecosystem Assessment (IEA) and The Nature
Conservancy 5-S Framework for Conservation Project Management, can be adopted to help
overcome this challenge.
Another key challenge is creating concrete goals and measurable indicators upon which toevaluate success. These goals and indicators are important for the adaptive management process
and as a mechanism to create accountability in the management system. The Chesapeake Bay
Program’s “realistic annual targets” and “dashboards” provide a good example of measurable
indicators and a reporting tool that informs the public, providing an accountability mechanism.
Ecosystem Science and Information
EBM requires proper incorporation of the best available science into decision-making processes.
A major challenge to achieving this includes the lack of appropriate scientific data. Continued
funding for ecosystem data collection to establish baseline conditions, combined with continued
monitoring to inform the adaptive management process, are both essential to understand baseline
conditions and inform adaptive management. Programs such as the Integrated Ocean Observing
Systems that are tasked with long-term monitoring could support regional EBM initiatives, andfederal initiatives such as NOAA’s IEA could help establish appropriate baselines.
Inefficient transfer of data to and utilization by governing institutions is another key challenge.
One increasingly popular way to inform and engage stakeholders and decision-makers is todevelop digital maps that link ecological and social data. This approach also fits well withexpanding efforts to engage in marine spatial planning and management. The NOAA Coastal
Services Center Marine Cadastre is one new tool that provides jurisdictional information, and128 Environmental Law InstituteOCEBM Handbook

both New York and Massachusetts are engaged in programs to develop high resolution digitalmaps that integrate social and ecological information.
Additional approaches to overcoming data transfer and utilization hurdles include thedevelopment of regional information systems and the standardization of data collection andrequirements across jurisdictions and sectors, as is seen with the Southern California Coastal
Water Research Project.
Accountability and Adaptive Management
Accountability and adaptive management are linked issues—a good adaptive management
system should create the information and procedures for evaluating and reporting that
information in a way that creates accountability. Major challenges to effective adaptive
management include creating concrete goals and measurable benchmarks as described in the
Ecosystem Planning section, and conducting effective and consistent monitoring as described in
the Ecosystem Science and Information Section.
In addition to these hurdles, a major accountability challenge is the lack of EBM mandates that
require agency participation and implementation action. A few coastal states have passed laws
to support EBM, including Washington, New York, and Massachusetts. Massachusetts provides
a regulatory model with specific mandates that require state and federal agencies to take actions
that are consistent with an ocean plan. While more advisory and restoration-based, the Puget
Sound Partnership provides an example of an enabling statute that creates accountability throughpublic process, incentives, and legislative oversight.
Cumulative Impacts and Tradeoffs
At the heart of ecosystem-based management is the need to minimize the cumulative humanimpacts on ecosystems in order to maintain the services upon which humans depend. Lack ofscientific information and legal and institutional structures that react rather than act proactively
hinder efforts to adequately consider and make decisions about potential human impacts. Part ofthis challenge includes the lack of existing structures for making well-informed tradeoffs among
competing and/or conflicting uses that affect marine ecosystems.
One of the most promising and most often recommended approaches to overcoming thesehurdles is ecosystem-based marine spatial management, which leads to the designation of
specific areas for different uses considering the sensitivity of species and habitats, as well as
the social and economic needs of the stakeholders. Both Massachusetts and Rhode Island
are engaged in processes to develop marine spatial management programs. Massachusetts’program is the result of a new state statute mandating the development of an integrated ocean
management plan. Rhode Island is conducting marine spatial management through its coastal

Ocean and Coastal Ecosystem-Based Management: Implementation Handbook 	129

OCEBM Handbook

program, taking advantage of the Coastal Zone Management Act’s provisions related to Special
Area Management Plans.
Final Thoughts
The concepts underlying ecosystem-based management, including how best to design andimplement EBM programs, are rapidly evolving. This Handbook highlights many programs
that have been identified by EBM experts as good examples of existing EBM approaches or
non-EBM approaches that could be adopted by EBM programs. It is the authors’ hope that thisHandbook will provide practitioners with concrete options for developing and implementing
EBM programs and will inform those advancing the field of EBM governance.

130 Environmental Law InstituteOCEBM Handbook

APPENDIX A: Summary of Options and Examples
Appendix A provides a list of the options and examples discussed in this Handbook.

ECOSYSTEM-BASED VISION AND PLANNING(1) OVERALL PLANNING APPROACHES.
OPTION: Consider drivers for program development.
Degraded Ecosystems
Legislative Opportunity or
MandateChesapeake Bay Program
Puget Sound Partnership
California Ocean Protection Council

OPTION: Include appropriate institutions and stakeholders.
Planning with Experts andStakeholders

Puget Sound Partnership
Massachusetts Oceans Act

OPTION: Use a strategic and adaptive process.
Analytical Frameworks
Deliberations and Consensus

The Nature Conservancy Conservation Approach and 5-S Approach
NOAA Integrated Ecosystem Assessment
Chesapeake Bay Fishery Ecosystem Plan
North Carolina Coastal Habitat Conservation Plan

(2) DEVELOP A REGIONAL VISION.
OPTION: Develop a vision that considers ecosystem, social, and economic needs.
Gulf of Maine Council on the Marine Environment
California Ocean Protection Council
Gulf of Mexico Alliance
Table of regional visions

West Coast Governors Agreement on Ocean Health
Puget Sound Partnership
Aleutian Islands Fishery Ecosystem Plan
Chesapeake Bay Fishery Ecosystem Plan

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OCEBM Handbook

OPTION: Include specific target date to achieve overall vision.
Agreement-Based Target Dates
Mandated Target Date

Chesapeake Bay Program
Gulf of Maine Council on the Marine Environment
Puget Sound Partnership(3) CONDUCT THREATS ANALYSIS.
OPTION: Describe specific threats and impacts that the regional plan and program will address.
Frameworks and Strategies

The Nature Conservancy 5-S Framework for Conservation ProjectManagement
NOAA Integrated Ecosystem Assessment
California Ocean Protection Council

Regional Program Approaches

Gulf of Maine Council on the Marine Environment
Gulf of Mexico Alliance(4) IDENTIFY CONCRETE GOALS AND MEASURABLE INDICATORS.
OPTION: Use ecosystem assessments and threats analysis to inform development of concrete goals
and measurable indicators.
Sector-Specific Approach

Aleutian Islands Fishery Ecosystem Plan

Cross-Sector Regional
ApproachPuget Sound Action Agenda

OPTION: While working within a comprehensive EBM approach, keep concrete goals focused on
key priorities.
Broad Goals to Annual Targets

Chesapeake Bay Program

Attainable Goal-Setting

Gulf of Mexico Alliance

OPTION: Include specific indicators to measure success.
Fisheries Indicators

Chesapeake Bay

Water Quality Indicators

EvergladesLand Use Indicators

Gulf of Maine Council on the Marine Environment

Management Indicators

MPA Guidebook

132 Environmental Law InstituteOCEBM Handbook(5) DEVELOP AN IMPLEMENTATION PLAN.
OPTION: Designate a lead agency.
Activities Matrix

Gulf of Mexico Alliance

List of Actions and Institutions

California Ocean Protection Council

OPTION: Identify the legal authority to act.
Legal Mandate
Memorandum of Understanding

California Ocean Protection Act
Massachusetts Ocean Act
Chesapeake Bay

OPTION: Estimate implementation cost, funding sources, and cost of inaction.
Chesapeake Bay Commission
Cost of Action

Gulf of Maine Council on the Marine Environment
Gulf of Mexico Alliance

Cost of Inaction

Stern Review on the Economics of Climate Change
The Sunken Billions

ECOSYSTEM SCIENCE AND INFORMATION(1) INCORPORATE SCIENTIFIC DECISION-MAKING THROUGHOUT THE EBM
PROGRAM.
OPTION: Require decision-making based on sound science.
Ecosystem Decision-Making
Sector-Based Decision-Making

California Ocean Protection Council
Magnuson-Stevens Fishery Conservation and Management Act
Marine Mammal Protection Act

OPTION: Use a science committee to serve as liaison to the scientific community and to advise theregional governance body.
California Ocean Sciences Trust and Ocean Protection Council
State-Law Approach

Puget Sound Partnership
Massachusetts Ocean Management Initiative

Soft-Law and Federal Approach

Chesapeake Bay Program

Ocean and Coastal Ecosystem-Based Management: Implementation Handbook 	133

OCEBM Handbook(2) USE AVAILABLE DATA TO INFORM MANAGEMENT DECISIONS.
OPTION: Use long-term monitoring data.
Data Sources

Integrated Ocean Observing System Regional Associations

Data Sets

National Assessments Database
National Land Cover Dataset

OPTION: Synthesize existing data to evaluate multiple parameters of the ecosystem.
Synthesizing Regional Data
Synthesizing National Data

Aleutian Islands Fishery Ecosystem Plan
Southern California Coastal Water Research Project
National Coastal Condition Report

OPTION: Map ecological and social data to inform decision-making.
State-Based Approach

New York Ocean and Great Lakes Ecosystem Conservation Council

National Approach

NOAA Coastal Services Center

OPTION: Synthesize existing data to evaluate cumulative human impacts.
National Center for Ecological Analysis and Synthesis Human Impacts
Study
Use Marine Geospatial Ecology Tools to Make Management Decisions(3) COLLECT NEW DATA TO INFORM MANAGEMENT DECISIONS.
OPTION: Develop a research plan based on regional needs.
Multi-State Approach

Sea Grant Regional Research Support

Single-State Approach

Puget Sound PartnershipFederal Approach

Joint Subcommittee on Ocean Science and Technology Ocean
Research Priorities Plan and Implementation Strategy

OPTION: Fund targeted research that informs management decisions.
Creating a Trust

California Ocean Science Trust

Regional Opportunities

IOOS Regional Associations

OPTION: Be timely with data sharing.
Interim Reports

Chesapeake Bay Program

OPTION: Use existing legal authority to consider multiple ecosystem parameters.
Sector-Based Approach toConsidering Ecosystem

Magnuson-Stevens Fishery Conservation and Management Act

Ecosystem Approach to Water
Quality Management

Maine’s Tiered Aquatic Life Uses

134 Environmental Law InstituteOCEBM Handbook

OPTION: Use permitting authority to ensure that permittees support ecosystem-based monitoring
and research.
Fisheries Permits

Magnuson-Stevens Fishery Conservation and Management Act

Water Quality Permits

North Carolina In-Stream Water Quality Monitoring Requirements

Wave Energy Permits

Wave Energy Development(4) SHARE INFORMATION ACROSS SECTORS AND JURISDICTIONS.
OPTION: Establish linkages among institutions.
Regional Science Collaboration

North Slope Science Initiative

Online Networking

EBM Tools Network

OPTION: Standardize information across jurisdictions and sectors.
Federal Fisheries Management
Southern California Coastal Water Research Project
National Water Quality and Assessment Program
OPTION:

Develop regional information systems.

Regional Information

Chesapeake Information Management System

National Information Center

Digital Coast

ACCOUNTABILITY AND ADAPTIVE MANAGEMENT(1) GOVERNANCE STRUCTURE
OPTION: Mandate EBM.
Building a Plan and Policy on
Existing Law

New York Ocean and Great Lakes Ecosystem Conservation Act

Developing a Program for
Restoration

Puget Sound Partnership

Developing a New Regulatory
Framework

Massachusetts Oceans Act

Ensuring Federal Consistency

Coastal Zone Management Act

Mandating State and Federal
Cooperation

Atlantic Coastal Fisheries Cooperative Management Act

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OCEBM Handbook

OPTION: Adopt an adaptive management framework.
Adaptive Management Strategy

Chesapeake Bay Program Action Plan
Puget Sound Partnership Action Agenda

OPTION: Vest decision-making authority in regional body.
Commission Authority

Delaware River Basin Commission

Agency Oversight Authority

Massachusetts Ocean Management Initiative

Sector-Based Authority

California Marine Life Protection Act

OPTION:

Create strong public participation mechanisms.

Connecting via the Internet“Thank You Oceans” Campaign

Participation throughout Process

Puget Sound Partnership California Marine Protected Area Network

Public Forums and Meetings

Massachusetts Ocean Management Initiative
California Ocean Protection Council

Sector-Based Participation

Fishery Management Councils

Citizen Suit Provisions

Endangered Species Act(2) PLANNING REQUIREMENTS
OPTION: Create concrete goals and objectives.
Land Use Goals & Objectives

Chesapeake Bay Program

Management Goals &Objectives

Gulf of Mexico Alliance

Invasive Species Goals

Gulf of Maine Council

Legal Basis for Concrete Goals
and Objectives Development

Puget Sound Partnership

Legal Basis for Indicator
Development

Massachusetts Oceans Act

OPTION: Create measurable indicators.
Chesapeake Bay
Examples from Chapter II

Everglades
Gulf of Maine Council on the Marine Environment
MPA Guidebook

136 Environmental Law InstituteOCEBM Handbook(3) IMPLEMENTATION APPROACHESOPTION: Evaluate implementation success.
Chesapeake Bay Realistic Annual Targets and Dashboards
OPTION: Require reporting.
Internal Reporting

Puget Sound Partnership

External Reporting to Governorand Legislature

Puget Sound Partnership

Independent Review

Puget Sound Partnership

External Report

Chesapeake Bay Health Report CardOPTION: Create incentives to participate in program and implement plans and repercussions for
implementation failures.
Funding, Implementation
Support, and Public
Engagement

Puget Sound Partnership

CUMULATIVE IMPACTS(1) PRESERVATION BY LIMITING OR PROHIBITING HUMAN USE
OPTION: Designate marine no-take or no-use reserves.
State-Based Approach
Sector Specific Protection
Federal Approach

Chesapeake Bay Realistic Annual Targets and Dashboards
California Marine Protected Area Network
Alaska Habitat Conservation Zones
Florida Keys National Marine Sanctuary
Papahānaumokuākea Marine National Monument

OPTION: Use private mechanisms to protect ecosystems.
Federal Acquisition Program

NOAA Coastal and Estuarine Land Conservation Program

State-Based Protection Program

California Coastal Conservancy

Private Mechanisms for Marine
Protection

The Nature Conservancy’s Marine Conservation Agreements

Ocean and Coastal Ecosystem-Based Management: Implementation Handbook 	137

OCEBM Handbook(2) ALLOWING SUSTAINABLE HUMAN USE
OPTION: Develop marine spatial management.
Coastal Management
Alaska Coastal Management Program
Coastal Zone Management

Rhode Island Ocean Special Area Management Plan

Marine Spatial Management

Massachusetts Ocean Management Initiative

OPTION: Establish thresholds for human use impacts, allowing ample margin for scientific andmanagement uncertainty.
A Quantitative Approach toAddress Uncertainty about
ImpactMagnuson-Stevens Fishery Conservation and Management Act

Creating a Margin of Safety

Clean Water Act

Classifying Human Use Impacts

Marine Mammal Protection Act

OPTION: Conduct more thorough cumulative impact analysis in permitting process.
Lessons Learned from Environmental Impact Assessment
Lessons Learned from Clean Water Act Section 404 Mitigation
Lessons Learned from Endangered Species Act Cumulative Impact
Analysis
OPTION: Establish mechanisms to prevent or mitigate impacts or enhance ecosystems.
Linking Mitigation and Planning Connecting Mitigation to State Wildlife Action Plans
Coordinating Mitigation and
Restoration across a Watershed

Columbia River Basin Hydropower

OPTION: Minimize cumulative impacts when developing and implementing incentive-based
management approaches.
Federal Support for State Action

Coastal Zone Management Act

Federal Support for Private
ActionVessel Buyback ProgramsMarket-Based Approaches to
Ecosystem Resiliency

Willamette Partnership(3) RESTORING ECOSYSTEM AFTER DEGRADATIONOPTION: Respond and restore after illegal discharge or injury.
Discharge Liability

Comprehensive Environmental Response, Compensation, and Liability
Act
Oil Pollution Act

138 Environmental Law InstituteOCEBM Handbook

Ecosystem Liability

National Parks
National Marine Sanctuaries

OPTION: Respond and restore after permitted degradation.
Rebuilding Requirements

Magnuson-Stevens Fishery Conservation and Management Act

Recovery Requirements

Endangered Species Act

Regional Restoration Programs

Chesapeake Bay Program and Puget Sound Partnership

TRADEOFFS(1) VALUE SOCIETAL, ECONOMIC, AND ECOSYSTEM BENEFITS AND HARMS
OPTION: Develop a system to quantitatively value ecosystem services.
Valuing Ecosystem Services
Valuation of Natural Resources
Valuing Costs and Benefits ofIndividual Action

Natural Capital Project
Natural Resource Damage Cases
National Marine Sanctuaries
NEPA Analysis

OPTION: Use experts or a public process to determine values.
Expert Opinion to Value
Resources

Massachusetts Ocean Management Initiative

Challenges of Multi-Stakeholder
CALFED Program
Collaborative Processes
Regional Restoration Programs

Chesapeake Bay Program and Puget Sound Partnership

OPTION: Establish a governance process to make decisions based on consensus.
State Approach

North Carolina Coastal Habitat Protection Plan

Federal Approach

Regional Fishery Management Councils

OPTION: Mandate priority uses based on EBM principles and include conservation andpreservation among the priorities.
National Wildlife Refuge System
International Joint Commission
National Marine Sanctuaries Program

Ocean and Coastal Ecosystem-Based Management: Implementation Handbook 	139

OCEBM Handbook(2) MAKE EXPLICIT TRADEOFFSOPTION: Undertake marine spatial planning and management.
Zoning State Waters

Massachusetts Integrated Ocean Management Plan

Federal Zoning of Conservation
Areas

Florida Keys National Marine Sanctuary

Zoning State Water and Beyond

Rhode Island Special Area Management PlanOPTION: Use market-based approaches to make tradeoffs.
Ecosystem Markets

Willamette Partnership
Bay Bank(3) RESOLVE DISPUTESOPTION: Create a system for resolving disputes among sectors.

Supporting Program
State Governance Approach

140 Environmental Law Institute

U.S. Institute for Environmental Conflict Resolution
Puget Sound Partnership

OCEBM Handbook

APPENDIX B: Glossary of Institutions

Appendix B provides a summary of laws and institutions cited in examples used in the
Handbook, as well as a summary of particularly relevant guidance institutions. Some are specificinstitutions implementing regional governance plans. Others are sector-specific institutions
that are engaged in activities or have programs that could be adopted for EBM. Still others are
institutions that can provide supporting information, advice, and possibly technical support toEBM programs.

LAWS AND INSTITUTIONS
Alaska Coastal Management Program (http://dnr.alaska.gov/coastal/acmp/)
The Alaska Coastal Management Program is the state agency responsible for management of
Alaska’s coastal zone in accordance with state law and the federal Coastal Zone Management
Act.
Handbook Example:• Cumulative Impacts
 An example of one way states can use their authority and authority
derived from the Coastal Zone Management Act to engage in ocean andcoastal spatial management, which should help minimize cumulative
impacts.
Atlantic States Marine Fisheries Commission (http://www.asmfc.org/)
Established in 1942 by 15 Atlantic States using a state compact, the Atlantic States Marine
Fisheries Commission manages fisheries resources in state waters.
Handbook Example:• Accountability and Adaptive Management
 An example of a state compact approved by an act of Congress (thus, abinding hard law agreement) mandating cooperation among states and thefederal government.
Bay Bank (http://www.thebaybank.org/)
The Bay Bank is a Chesapeake Bay program under development and aimed at creating an
ecosystem services market.

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OCEBM Handbook

Handbook Example:• Tradeoffs
 A market-based mechanism to make tradeoffs among uses based on
ecosystem services.
CALFED Program (http://calwater.ca.gov/index.aspx)
CALFED is a multi-agency federal and state partnership created to improve the conditionsof the San Francisco Bay Delta watershed, which is used as an example of the challenge ofcreating a multi-stakeholder collaborative process that achieves stated objectives.
California Coastal Conservancy (http://www.scc.ca.gov/)
The California Coastal Conservancy protects and enhances coastal resources throughproperty acquisition and other mechanisms.
Handbook Example:• Cumulative Impacts
 An example of a state-funded mechanism to protect ecosystems byacquisitions and easements.
California Ocean Protection Council (http://www.opc.ca.gov/)
The California Ocean Protection Council is a recently established advisory body focused on
ocean and coastal management, including implementing ecosystem-based management. The
Council and the underlying law establishing it, the California Ocean Protection Act, provide
several examples of ways to implement EBM.
Handbook Examples:• Ecosystem Planning A legal mandate as a driver for EBM.
 A vision statement to help frame its strategic plan.
 A legal mandate delineating the authority to take EBM actions.
• Ecosystem Science and Information
 Mechanisms for incorporating science in decision-making.
 Mechanisms for funding ecosystem science.
California Ocean Sciences Trust (http://www.calost.org/)
Established in 2000 to foster collaboration and ensure best available science is incorporated
into ocean management and policy decisions, the Trust now provides advice to the California
Ocean Protection Council.

142 Environmental Law InstituteOCEBM Handbook

Handbook Example:• Ecosystem Science and Information
 A program that serves as a liaison to the scientific community and anadvisor to the Ocean Protection Council.
Chesapeake Bay Commission (http://www.chesbay.state.va.us/)
The Chesapeake Bay Commission is a 21-member Commission composed of 15 legislatorsfrom the three Chesapeake Bay states (Virginia, Maryland, and Pennsylvania), the three state
governors, and three citizens. It helps achieve Bay restoration goals through executive andlegislative action.
Handbook Example:• Ecosystem Planning A program that has evaluated the cost of plan implementation.
Chesapeake Bay Program (http://www.chesapeakebay.net/)
Since 1983, the Chesapeake Bay Program has taken an ecosystem approach to restoring theBay. It was established by a soft-law agreement between the Chesapeake Bay states and thefederal government. The Program has expanded and undergone several revisions throughout
its history to help achieve restoration goals. The Program provides several examples of
options for EBM implementation.
Handbook Examples:• Ecosystem Planning Degraded ecosystems as a driver for EBM.
 Establishing specific target dates to achieve success as part of the regionalplan.
 Use of realistic annual targets as concrete measures to help achieve its
broad restoration goals.
 Development of specific indicators against which to measure successincluding fisheries indicators.
• Ecosystem Science and Information
 The use of scientific committees to support Program decisions.
 The creation of interim reports to help connect management with scientificadvances.
 The creation of an information management system to help sharemodeling tools and data for use by planners, technical personnel, and the
public.
• Accountability and Adaptive Management
 The development of an adaptive management framework.
• Cumulative Impacts

Ocean and Coastal Ecosystem-Based Management: Implementation Handbook 	143

OCEBM Handbook

A program established to restore past and ongoing damage from continued
human impact.

Delaware River Basin Commission (http://www.state.nj.us/drbc/)
The Delaware River Basin Commission was established by state compact to manage theDelaware River Basin, creating a multi-state and federal regional management system.
Handbook Example:• Accountability and Adaptive Management Demonstrates a hard law approach to a multi-state and federal
partnership, using state compact to establish a regulatory body overseeing
the management of the multi-state ecosystem.
EBM Tools Network (http://www.ebmtools.org/)
The EBM Tools Network is an alliance of EBM practitioners working together todevelop and support the use of EBM tools in EBM implementation in ocean and coastal
environments.
Handbook Example:• Ecosystem Science and Information
 An online networking approach to disseminating information about
available EBM tools and how to use them.
A longer description is found in the following section, Additional Information about
Institutions Providing Guidance.
U.S. Environmental Protection Agency (http://www.epa.gov)
The U.S. Environmental Protection Agency is the lead federal agency tasked with managing
the water quality of the United States, and it supports several of the regional efforts describedin this Handbook.
Federal Energy Regulatory Commission (http://www.ferc.gov/)
Under the Federal Power Act, the Federal Energy Regulatory Commission licenses
hydropower projects including those related to dams and hydrokinetic energy (wave, current
and tidal).
Handbook Example:• Ecosystem Science and Information
 Describes a wave energy siting process that creates licensing conditions,requiring licensees to collect relevant ecological data that could be used to
inform EBM.

144 Environmental Law InstituteOCEBM Handbook

Florida Keys National Marine Sanctuary Program (http://floridakeys.noaa.gov/)
The Florida Keys National Marine Sanctuary is one of 13 national sanctuaries that preserves
and protects natural resources by the designation of no-use reserves and limited use areas—astep in the direction toward more comprehensive marine spatial management.
Handbook Examples:• Cumulative Impacts
 The Sanctuary’s designation of no-take and limited use areas provides anexample of a preservation approach to impact reduction.
o Tradeoffs
 An example of how spatial planning can minimize conflicting resourceuse.
Gulf of Maine Council on the Marine Environment (http://www.gulfofmaine.org/)
Established in 1989 to maintain and enhance environmental quality in the Gulf of Maine, theCouncil provides several examples of ways to approach regional governance and EBM.
Handbook Examples:• Ecosystem Planning Stated long-term goals as a vision for the 5-year implementation plan.
 Target dates to achieve plan objectives and activities.
 Plan that describes ecosystem threats and actions to overcome threats.
 A work plan that includes cost of action and financing available.
 Plan that includes concrete goals and objectives.
Gulf of Mexico Alliance (http://gulfofmexicoalliance.org/)
The Gulf of Mexico Alliance is a recently formed partnership among the five Gulf Coast
states with support from relevant federal agencies that is focused on establishing regional
collaboration to enhance the ecological and economic health of the Gulf. Several activities
and approaches are useful when considering EBM implementation.
Handbook Examples:• Ecosystem Planning: A vision expressed in its plan that focuses on ecological and economic
wellbeing.
 A plan that addresses specific threats to ecosystem health.
 A plan focused on practical and attainable goals.
• Accountability and Adaptive Management
 A program that creates an implementation matrix that lists lead agencies aswell as contributors and collaborators.
 Concrete actions expressed in the Implementation Activities Matrix.

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OCEBM Handbook

Integrated Ocean Observing System Regional Associations (http://ioos.noaa.gov/)
The Integrated Ocean Observing System is a federal program focused on providing
continuous data on ocean and coastal environments. It implements its vision throughRegional Associations designed to provide relevant monitoring data to resource managers
and others.
Handbook Example:• Ecosystem Science and Information
 The Regional Associations provide a mechanism for linking targeted
research to management decisions.
A longer description is found in the following section, Additional Information about
Institutions Providing Guidance.
International Joint Commission (http://www.ijc.org/en/home/main_accueil.htm)
The International Joint Commission was established by the Boundary Waters Treaty of 1909
for the cooperative management of the freshwater resources shared by the U.S. and Canada.
Handbook Example:• Tradeoffs
 A system of prioritizing uses explicitly expressed in the treaty.
Joint Subcommittee on Ocean Science and Technology (http://ocean.ceq.gov/about/jsost.html)
The Joint Subcommittee on Ocean Science and Technology is tasked with identifying
national ocean science and technology priorities, among other things.
Handbook Example:• Ecosystem Science and Information
 Federally developed research plan and implementation strategy focused on
key interactions between society and the ocean.
Massachusetts Ocean Management Initiative (http://www.mass.gov/czm/oceanmanagement/
index.htm)
The Massachusetts Initiative is the result of the passage of the Massachusetts Oceans Act in2008, which requires Massachusetts to create and implement a comprehensive spatial planfor state waters. Several examples related to this program are described in this Handbook.
Handbook Examples:• Ecosystem Planning An example of a program engaged in planning with a broad range ofexperts and stakeholders through advisory bodies, meetings, and otherparticipatory processes.

146 Environmental Law InstituteOCEBM Handbook

Demonstrates that state law establishes the requirements for EBM
implementation.
 Demonstrates a legal basis for indicator development requiring a plan that
includes goals, siting priorities, and standards.
Ecosystem Science and Information
 Makes use of a scientific committee to advise the program.
Accountability and Adaptive Management
 Establishes a legal mandate for EBM implementation requiring action
from the lead agency and requiring all agencies to be consistent with theplan.
 Vests decision-making in one agency, creating a system of accountability.
 Engages in extensive public participation including hosting public forums
and meetings to share information and obtain feedback.
Cumulative Impacts
 Mandates marine spatial management including consideration of habitats
and species, which should result in minimization of cumulative impacts.
Tradeoffs
 Relies on available science and expert opinion to establish priority areasfor protection and development.


•
•

•
•

National Water Quality Assessment Program (http://water.usgs.gov/nawqa/)
The National Water Quality Assessment Program provides long-term data on U.S. water
quality through direct stream analysis.
Handbook Example:• Ecosystem Science and Information
 Conducts comparable and uniform sampling and analytical methods whilestill tailoring analysis to meet specific ecosystem conditions.
National Wildlife Refuge System (http://www.fws.gov/refuges/)
The National Wildlife Refuge System is managed by the U.S. Fish and Wildlife Service andincludes 550 refuges and other units in the system. Federal laws that create oversight andcomprehensive management requirements for the refuges include the 1962 Recreation Act,the 1966 Refuge Act, and the 1997 National Wildlife Refuge System Improvement Act.
Handbook Example:• Tradeoffs
 Legal mechanism that establishes priority uses based on a fundamental
goal of conservation and preservation.

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OCEBM Handbook

Natural Capital Project (http://www.naturalcapitalproject.org)
The Natural Capital Project is developing tools to value ecosystem services in order toimprove how land and waters are used.
Handbook Example:• Tradeoffs
 Develops quantitative tools for valuing ecosystem services.
New York Ocean and Great Lakes Ecosystem Conservation Council (http://www.nyoglecc.
org/)
The New York Ocean and Great Lakes Ecosystem Conservation Council was established bystate law in 2007 and tasked with “promot[ing] the understanding, protection, restoration andenhancement” of the ocean and Great Lakes ecosystems.
Handbook Examples:• Ecosystem Science and Information
 Maps social and ecological data for decision-makers and the public.
• Accountability and Adaptive Management
 Legal mandate that establishes the Council and a policy focused on
ecosystem health, productivity and resilience.
National Oceanic and Atmospheric Administration (NOAA) Priority Area Task Team(http://www.ncddc.noaa.gov/activities/noaa-regional-collaboration)
NOAA’s Priority Area Task Team for Integrated Ecosystem Assessments is one of several
collaborative efforts at NOAA focused on the Assessment approach as a way to synthesize
and quantitatively analyze data in relation to ecosystem management objectives.
Handbook Example:• Ecosystem Vision and Planning Uses a five-step integrated ecosystem assessment to engage in a
strategic and adaptive planning and implementation process.
NOAA Coastal Services Center (http://www.csc.noaa.gov/)
The Coastal Services Center works with federal and state agencies and others to provide
information and training and helps build collaborations across institutions.
Handbook Examples:• Ecosystem Science and Information
 Maps social and ecosystem data to inform management including theDigital Coast Legislative Atlas.

148 Environmental Law InstituteOCEBM HandbookServes as a repository for data, tools, and models and is a source ofregional information.

A longer description is found in the following section, Additional Information about
Institutions Providing Guidance.
NOAA Coastal and Estuarine Land Conservation Program (http://coastalmanagement.noaa.
gov/land/)The Coastal and Estuarine Land Conservation Program provides matching funds to states toacquire property or easements in coastal and estuarine lands for protection.
Handbook Example:• Cumulative Impacts
 Federal mechanism to acquire important coastal and estuarine property
for the purpose of protection.
North Carolina Division of Water Quality, Discharge Monitoring Coalitions (http://h2o.ehnr.
state.nc.us/esb/coalitions.html)
National Pollutant Discharge Elimination System (NPDES) permit holders collaborate with
the Division of Water Quality to monitor water quality at various sites in the watersheds.
Handbook Example:• Ecosystem Science and Information
 Through a memorandum of understanding permit holders monitor water
quality at 269 sites statewide in order to better assess ecosystem health.
North Pacific Fishery Management Council, Aleutian Islands Ecosystem Team (http://www.
fakr.noaa.gov/npfmc/current_issues/ecosystem/Ecosystem.htm)
The Aleutian Islands Ecosystem Team was established by the North Pacific Fishery
Management Council to help develop the Aleutian Islands Fishery Ecosystem Plan.
Handbook Examples:• Ecosystem Vision and Planning Plan expresses an EBM vision including the vision to provide
measurable indicators to evaluate ecosystem health.
• Ecosystem Science and Information
 Synthesizes available ecosystem data to inform management decisions.
 Council used existing authority to develop ecosystem plan.

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North Slope Science Initiative (http://www.northslope.org/)
The North Slope Science Initiative brings together local, state and federal institutions to “tofacilitate and improve collection and dissemination of ecosystem information” in the North
Slope region of Alaska.
Handbook Example:• Ecosystem Science and Information
 A regional science initiative aimed at developing ecosystem sciencethrough information sharing and collaboration.
Pacific Northwest Electric Power and Conservation Council (http://www.nwcouncil.org/)
The Pacific Northwest Electric Power and Conservation Council oversees the development
and management of hydropower on the Columbia River.
Handbook Example:• Cumulative Impacts
 In accordance with the federal Northwest Power Act, the Council,
through its Fish and Wildlife Program, takes protection, mitigation andenhancement measures throughout the watershed based on ecosystemneeds.
Papahānaumokuākea Marine National Monument (http://hawaiireef.noaa.gov/)
Using the authority provided in the Antiquities Act, President Bush declared the Northwest
Hawaiian Islands a national monument in 2006, now named the Papahānaumokuākea Marine
National Monument.
Handbook Example:• Cumulative Impacts
 Creates a vast no-take reserve to preserve the Northwest Hawaiian Islands
ecosystem.
Puget Sound Partnership (http://www.psp.wa.gov/)
The Puget Sound Partnership is mandated by state law to develop and implement an Action
Plan to achieve a healthy Sound by 2020.
Handbook Examples:• Ecosystem Vision and Planning Driver for program development is the need to reverse the trend towardecosystem degradation in the Sound.
 Includes appropriate institutions and stakeholders in the planning process
through topical forums and advisory bodies.
 Expresses a vision of EBM that guides the action agenda.

150 Environmental Law InstituteOCEBM Handbook

State law sets a clear target date to achieve a healthy Sound by 2020.

Worked with NOAA’s Integrated Ecosystem Assessment team to conduct
assessment and threats analysis in order to set concrete goals.
Ecosystem Science and Information
 Establishes a science advisory body to inform Partnership decisions andplan development.
 Develops a research plan that is to be updated on a biennial basis.
Accountability and Adaptive Management
 The Partnership is established by state law that mandates the developmentof an ecosystem plan and its implementation.
 The Partnership’s Action Agenda calls for an adaptive management
approach.
 Engages stakeholders and experts through forums, discussion papers andvarious stages including plan development and implementation.
 The state law requires that the partnership develop measurable goals andobjectives.
 Extensive reporting mechanisms are employed including internal reportingfrom grantees to the Partnership and external reporting to the governor andlegislature, as well as an independent review process.
 Funding linked to plan implementation.
Cumulative Impacts
 Takes a restoration focused approach to addressing past and ongoing
human impacts to the Sound.
 Provides a forum for addressing conflicts between the Partnership and its
plan and other state institutions.


•

•

•

Rhode Island Coastal Resources Management Council (http://www.crmc.ri.gov/)
The Rhode Island Coastal Resources Management Council is leading the development of the
Rhode Island Special Area Management Plan (SAMP), which is a marine spatial planning
effort for state waters and implications for use in federal waters.
Handbook Examples:• Cumulative Impacts
 Engages in marine spatial planning making use of the Coastal Zone
Management Act provisions allowing for the development of SAMPs.
• Tradeoffs
 Engages in marine spatial planning, which allows tradeoff decisions to bemade explicitly at the outset instead of in reaction to project by project
proposals.

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Sea Grant (http://www.seagrant.noaa.gov/)
Sea Grant is a federally funded program that includes a national office and universitybased programs in each coastal state. Sea Grant programs support research, education, andoutreach and work with communities through extension programs.
Handbook Examples:• Ecosystem Science and Information
 Developing regional research needs based on a needs assessment.
 Working with the California Ocean Protection Council to help fundresearch that informs management decisions.
A longer description is found in the following section, Additional Information about
Institutions Providing Guidance.
Southern California Coastal Water Research Project (http://www.sccwrp.org/)
The Southern California Coastal Water Research Project (SCCWRP) is a collaboration offederal, state, and local institutions focused on coastal water quality.
Handbook Examples:• Ecosystem Science and Information• Synthesizes regional data including biological, physical andchemical data.
• Conducts collaborative assessments using standardized methods
and coordinated data.
The Nature Conservancy (http://www.nature.org/)
The Nature Conservancy is a non-profit organization focused on conservation andmanagement of natural resources including ocean and coastal resources.
Handbook Examples:• Ecosystem Planning and Information
 Uses the 5-S Framework for Conservation Project Management as an
adaptive management approach.
 Its 5-S process includes a step to identify specific threats and impacts toecosystems.
• Cumulative Impacts
 Developed guidance for the development of marine conservationagreements, which include private property mechanisms for ocean andcoastal preservation.

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U.S. Institute for Environmental Conflict Resolution (http://www.ecr.gov/)
The Institute for Environmental Conflict Resolution is a federal agency that helps resolve
environmental disputes that involve federal agencies.
Handbook Example:• Tradeoffs
 Provides support for conflict resolution among parties with competing andconflicting interests.
Willamette Partnership (http://www.willamettepartnership.org/)
The Willamette Partnership is a recent endeavor focused on creating a market for ecosystemservices in the Willamette Basin in Oregon.
Handbook Examples:• Cumulative Impacts
 A market-based approach to minimizing human impacts based on
ecosystem services.
• Tradeoffs
 A market-based approach to making tradeoffs among competing uses that
affect ecosystem services.

ADDITIONAL INFORMATIONABOUT INSTITUTIONS PROVIDING GUIDANCE
Communication Partnership for Science and the Sea (http://www.compassonline.org/)
The Communication Partnership for Science and the Sea (COMPASS) works to achieve
ocean health through science-based solutions. COMPASS connects science with policy andmanagement to achieve its objectives. It laid the groundwork for marine EBM with COMPASSled publication of the Scientific Consensus Statement on Marine Ecosystem Based Management.
COMPASS conducts regular science briefings to congressional staff, has made numerous EBM
presentations, and is engaged in several projects to advance EBM science and understanding.
EBM Tools Network (http://www.ebmtools.org/)
The Ecosystem Based Management Tools Network supports the creation and use of EBM
tools in marine, coastal, and watershed contexts. Membership includes groups that create EBM
tools and those that use such tools in academic, governmental, and non-governmental settings.
The network itself is coordinated by NatureServe. The group’s primary creation is a public
database of existing EBM tools, allowing those developing EBM programs to find and utilize
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the most appropriate tools. The EBM Tools network particularly encourages tool development
in areas considered underserved, such as Integrated Land-Sea planning and Social Sciencemodeling. The Network generally promotes best practices for the use and creation of EBM tools
with a particular focus on their interactivity and has recently begun a tools training programeducating EBM practitioners on currently available tools and associated resources. The Network
also serves as a resource for funding, technical assistance and data, streamlining EBM tool
development and application through a full range of informational services.
Integrated Ocean Observing System (http://www.ocean.us/)
Congress created the National Oceanographic Partnership Program (NOPP) in 1997 withthe enactment of Public Law 104-201. Led by the Secretary of the Navy, the program wascreated to promote national goals related to security, economy, quality of life, education andcommunication and to coordinate and strengthen oceanographic efforts through partnerships andannual reports to Congress.543 NOPP is a partnership of 12 federal agencies including the Navy,NOAA, NSF, NASA, DoE, EPA, USCG, DoI/USGS, DARPA, DoI/MMS, OSTP and OMB.
Through a joint memorandum of agreement (MOA), the agencies created the NOPP Interagency
Ocean Observation Office (OCEAN.US) in 2000. Its goals are to establish a sustained integrated
ocean observing system (IOOS) to meet seven objectives, which align with EBM objectives:
•
•
•
•
•
•
•

Detect and forecast oceanic components of climatic variability
Facilitate safe and efficient marine operations
Ensure national security
Manage resources for sustainable use
Preserve and restore healthy marine ecosystems
Mitigate natural hazards
Ensure public health

The IOOS program is the U.S. contribution to the international Global Ocean Observing System(GOOS). The IOOS program is made up in part of regional associations (RAs) that focus oncoastal observations. These include the following:
•
•
•
•
•
•
•
•
543

Gulf of Maine Ocean Observing System (GoMOOS)
Mid-Atlantic Coastal Ocean Observing Regional Association (MACOORA)Southeast Coastal Ocean Observing Regional Association (SECOORA)
Gulf of Mexico Coastal Ocean Observing System (GCOOS)
Great Lakes Observing System (GLOS)Southern California Coastal Ocean Observing System (SCCOOS)
Central and Northern California Ocean Observing System (CeNCOOS)
Northwest Association of Networked Ocean Observing Systems (NANOOS)

10 U.S.C. §7901.

154 Environmental Law InstituteOCEBM Handbook••

Pacific Islands Integrated Ocean Observing System (PacIOOS)
Alaska Ocean Observing System (AOOS)

Joint Ocean Commission Initiative (http://www.jointoceancommission.org)
The Joint Ocean Commission Initiative JOCI) brings together the Commissioners from the U.S.
Commission on Ocean Policy and the Pew Oceans Commission to work toward ocean policy
reform. JOCI has developed several reports that provide insight into EBM governance. These
include:••One Coast, One Future—a report on high priority actions that local governments
can take to improve ocean and coastal health.
An Agenda for Action—a report proposing concrete actions to achieve regional
ocean governance.

NOAA Coastal Services Center (http://www.csc.noaa.gov/)
An EBM program could consider working with the NOAA Coastal Services Center (CSC)
to establish linkages among regional institutions and understand research and management
frameworks. The CSC has provided a supporting role for regional ocean governance bodies.
For example, in the Gulf of Mexico, the Director of NOAA CSC is also a Co-Chair of the Gulf
of Mexico Alliance. The West Coast CSC has worked closely with the West Coast Governors
Agreement efforts to support program development and planning.
EBM programs could also take advantage of CSC training programs to help develop or expand
planning and implementation skill sets. CSC is especially focused on developing national
tools for local users and providing the training needed to take advantage of these tools. When
CSC does local trainings, typically a local organization will host and invite the appropriate
participants, and the CSC trainer will conduct the training session onsite.
While CSC products and trainings are applicable at the local level, CSC does not have thecapacity to create local products based on incorporation of local and national datasets. For
example, CSC developed the Habitat Priority Planner that uses national data and can include
local data. This tool can support local decision making. CSC provides the Habitat Planning tool
and will provide training, but it does not have the capacity to conduct Habitat Priority Planningat the local level.
CSC is headquartered in Charleston, South Carolina and works regionally in New England,
Chesapeake Bay, the Gulf of Mexico, the West Coast, and the Pacific Islands. It has an annual
operating budget of approximately $25 million. The CSC is not established under any one law,although it derives much of its authority from Section 310 of the Coastal Zone Management Act
calling for technical assistance to coastal states.

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The mission of CSC is “to support the environmental, social, and economic well being of thecoast by linking people, information, and technology.” It serves state and local coastal resource
managers (CZM programs, flood plain managers, Fish and Wildlife Service, and the National
Sanctuaries Program, for example) as well as land trusts and conservancies, local chambers ofcommerce and others, and its operating principles are to take a client-driven, results-oriented
approach that works with partners at the local level.544 To determine product development needs,
the CSC conducts a tri-annual survey of practitioners. It is supplementing this information witha literature review of publications that express the needs of coastal resource managers.545
CSC derives much of its data from NOAA’s data management centers—the Climate Data Center,
Geophysical Data Center, Ocean Data Center, and the Coastal Data Center. The data includes
information collected from a wide variety of sources including satellites, buoys, and ships.
Some are long-term datasets; other sources are single studies or projects. The Data Centers
have until recently largely focused on data collection rather than distribution of data. However,increasingly NOAA is working to make the data sets available electronically.546
Sea Grant Programs (http://www.seagrant.noaa.gov/)
EBM programs could work with Sea Grant Programs to manage grants that reflect EBM goals.
In California, the Sea Grant program administers a grant program for the California Ocean
Protection Council. California Sea Grant received $800,000 to support grants that align with
Ocean Protection Council objectives.547 The first grants were issued in 2006, and work products
are beginning to emerge. Ideally, the outcome of this research will inform the work of the Ocean
Protection Council and help it adapt its strategy as it moves forward.
Each coastal state has a Sea Grant program that is funded in part by the federal government
with matching funds from the state. The National Sea Grant Office administers the programand provides guidance and support to state programs. Recently, the National Sea Grant Officeencouraged state Sea Grant programs to work together across regions to develop research
agendas. This resulted in the development of eight regional projects focused on Alaska, Hawai`i,
Great Lakes, Gulf States, Mid-Atlantic, Southeast Atlantic, New England, and the West Coast.548
The four West Coast Sea Grant Programs (two in California, Oregon, and Washington) conducteda major regional research and information needs session. They convened sixteen workshops andreceived comments from more than 6,000 people—experts to general public.549

544 NOAA Coastal Services Center, About the NOAA Coastal Services Center, at http://www.csc.noaa.gov/text/gen.html.
545 Personal communication with CSC [Becky Smyth], Sept 19, 2009, on file with authors.
546 Id. [545]547 Personal communication with California Sea Grant [Russell Moll], September 26, 2008, on file with authors.
548 Personal communication with California Sea Grant [Russell Moll], September 26, 2008, on file with authors.
549 For more information, see Oregon Sea Grant, Collaborative Project: Regional Research and Information Plan, at http://
seagrant.oregonstate.edu/research/RegionalPlanning/.

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This section examines the California Sea Grant program as an example. The program has
three functions: (1) research, (2) outreach, and (3) education. Its research and education
includes support to academic researchers and graduate students to better understand the coastal
environment. Outreach is aimed at the informed layperson and typically targets specificcommunities or industries. The written outreach materials include pamphlets as well as one-page
summaries of all research supported by Sea Grant. Sea Grant also employs several field agentsthroughout the region that have a wide variety of expertise related to the regional ocean andcoastal ecosystem. Field agents typically engage with specific ocean stakeholders and provide a
conduit between ocean research and ocean users.

LIST OF LAWS, AGREEMENTS, AND PLANS
The following is a list of federal and state laws, agreements and plans that are discussed in the
Handbook.
Federal Laws
Antiquities Act
Atlantic Coastal Fisheries Cooperative Act
Chesapeake Bay Restoration Act of 2000
Clean Water Act
Coastal Zone Management Act
Comprehensive Environmental Response, Compensation, and Liability Act
Delaware River Basin Compact
Endangered Species Act
Energy Policy Act of 2005
Federal Power Act
Magnuson-Stevens Fishery Conservation and Management Act
Marine Mammal Protection Act
National Environmental Policy Act
National Marine Sanctuaries Act
National Wildlife Refuge System Improvement Act of 1997
Northwest Electric Power Planning and Conservation Act
Oil Pollution Act
Park System Resource Protection Act
Recreation Act
Refuge Administration Act
State Laws
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California Marine Life Protection Act
California Marine Managed Areas Improvement Act of 2000
California Ocean Protection Act
California Ocean Resources Stewardship Act of 2000
Massachusetts Oceans Act
New York Ocean and Great Lakes Ecosystem Conservation Act
North Carolina Fisheries Reform Act
Washington Statute establishing the Puget Sound Partnership
Agreements
Boundary Waters Agreement (binding treaty)
Chesapeake 2000
San Francisco Bay Delta Agreement
West Coast Governors Agreement on Ocean Health
Plans
Aleutian Islands Fishery Ecosystem Plan
California Ocean Protection Council Strategic Plan
Chesapeake Bay Fishery Ecosystem Plan
Gulf of Maine Council on the Marine Environment 2007-2012 Action Plan
Gulf of Mexico Alliance Action Plan
North Carolina Coastal Habitat Conservation Plan
Puget Sound 2020 Action AgendaWest Coast Governors Action Plan

158 Environmental Law InstituteT

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