MPRSA

1. MPRSA Marine Protection, Research & Sanctuaries Act

2. Five titles make up the MPRSA: Titles I & II: Ocean Dumping Act Focuses on the research and regulation of materials that are dumped into ocean waters. Title III: National Marine Sanctuary Act Provides for identification, designation, management, and conservation of specific portions of the marine ecosystem that are designated as National Marine Sanctuaries Title IV: Marine Research Program Establishes federally managed regional marine research programs Title V: National Coastal Monitoring Act Establishes a national program for consistent monitoring of the Nation’s coastal ecosystem.

3. Ocean Dumping Act • Title I – Regulation of Dumping • Title II - Research

4. Ocean Dumping Act • Policy & Congressional Declaration of Purpose (§ 1401) Congress recognizes the dangers of unregulated dumping: “Unregulated dumping of material into ocean waters endangers human health, welfare, and amenities, and the marine environment, ecological systems, and economic potentialities” And thus stated that it was the policy of the US to regulate the dumping of all types of materials into ocean waters, and strictly limit or prevent the dumping of hazardous materials.

5. Ocean Dumping Act - Purpose Prohibits the transportation of materials for the purpose of dumping by (§ 1411): • Ships and planes flying the US flag • Originating in the US • Anyone intending to dump materials into US territorial waters or into a zone neighboring US territorial waters Unless a permit is obtained or in cases of emergency

6. Ocean Dumping Act – Key Definitions (§1402): • Secretary: Secretary of the Army • Administrator: Administrator of the Environmental Protection Agency • Material: Matter of any description (examples: dredged material, solid waste, incinerator residue, garbage, sewage, sewage sludge, munitions, radiological, chemical, and biological warfare agents, radioactive materials, chemicals, biological and laboratory waste, wreck or discarded equipment, rock, sand, excavation debris, and industrial, municipal, agricultural, and other waste) • Dumping: Disposition of material (NOT including: routine discharge from vessels, construction of any fixed structure or island, or the deposit of materials made for the purpose of “developing, maintaining, or harvesting fisheries resources.”) • Dredged Material: Any material excavated or dredged from waterways • Ocean Waters: Territorial waters as defined by the Convention on the Territorial Sea and the Contiguous Zone (expanded by the Convention of the Law of the Sea – see interactions with other laws supra)

8. Ocean Dumping Act – Issuance of Permits • EPA has exclusive right to issue permits except for permits relating to dumping of dredged waste • The Secretary of the Army and the Corps of Engineers has independent authority to issue permits for dredged materials[However, before issuing a permit the Secretary must notify the EPA which can choose to veto the permit if it is not consistent with the EPA’s environmental criteria] (ADMMARL § 18-5)

9. Ocean Dumping Act – Issuance of Permits • The Environmental Protection Agency (“EPA”) may issue permits for dumping that will not unreasonably degrade or endanger human health, welfare, amenities, or the marine environment, ecological systems, or economic potentialities.

10. Ocean Dumping Act – Issuance of Permits • After notice and opportunity for public hearing • NEVER issued for radiological, chemical, and biological warfare agents, high-level radioactive waste, and medical waste • Consult Federal, State, and local officials, interested members of the general public [subject to Administrator’s discretion], and the Secretary of the Department of the Army [when regulations affect the Army’s civil works programs] • Issued by regional EPA administrators (region of origin, final decision made by Administrator if contested). • PROCESSING FEES APPLY • $1000 for permit to dump at specified site • $3000 for permit to dump at unspecified site • Government exempt from permit fees

11. Permit factors: • The need for the proposed dumping. • The effect of such dumping on human health and welfare, including economic, esthetic, and recreational values. • The effect of such dumping on fisheries resources, plankton, fish, shellfish, wildlife, shore lines and beaches. • The effect of such dumping on marine ecosystems, particularly with respect to—(i) the transfer, concentration, and dispersion of such material and its byproducts through biological, physical, and chemical processes.(ii) potential changes in marine ecosystem diversity, productivity, and stability, and(iii) species and community population dynamics. • The persistence and permanence of the effects of the dumping. • The effect of dumping particular volumes and concentrations of such materials. • Appropriate locations and methods of disposal or recycling, including land-based alternatives and the probable impact of requiring use of such alternate locations or methods upon considerations affecting the public interest. • The effect on alternate uses of oceans, such as scientific study, fishing, and other living resource exploitation, and non-living resource exploitation • In designating recommended sites, the Administrator (of the EPA) shall utilize wherever feasible locations beyond the edge of the Continental Shelf.

12. Ocean Dumping Act – Permit Conditions • Must include – (1)  type of material • amount of material • location for dumping • conditions, limitations and requirements necessary to remain consistent with site-management plans (if any apply) • any special provisions deemed “necessary” for monitoring and surveillance of dumping • any other matters deemed “appropriate”

13. Ocean Dumping Act – Permit Conditions • Restrictions • Valid 7> • May be limited or denied, reviewed, revised or revoked (in part or in whole) if monitoring data suggests that materials cannot be dumped consistent with factors considered when applying for permits • Notice and opportunity for hearing on proposed action required • Must be displayed • Copy will be furnished to Secretary and Coast Guard

14. There are 6 different kinds of permits issued pursuant to the MPRSA. These are enumerated in 40 C.F.R. § 220.3 - • General Permits – issued for the dumping of materials that have a “minimal adverse environmental impact” and are being dumped in small quantities. Issued upon application or when the Administrator deems it appropriate. • Special Permits – issued for dumping of materials (still must meet the criteria from the Act) and expire no more that 3 years from the date of issuance. • Emergency Permits – issued for dumping of materials in a situation which otherwise would pose “an unacceptable risk relating to human health and admits of no other feasible solution.” Emergencies not limited to situations requiring ‘immediate action.’ • Interim Permits – no longer issued – originally allowed for the phasing out of ocean dumping and compliance with the Act following passage of new standards. • Research Permits – Issued for dumping of materials into the ocean as part of a research project when it is determined that “the scientific merit of the proposed project outweighs the potential environmental or other damage that may result from the dumping.” Expire no later than 18 months from date of issuance. • Incineration at Sea Permits – issued as research or interim permits until site is designated as an official incineration at sea site.

15. Ocean Dumping Act – Dredged Materials Regulated by Corps of Engineers – statement of purpose: “The Dredging Operations and Environmental Research (DOER) Program supports the U.S. Army Corps of Engineers Operation and Maintenance Navigation Program. Research is designed to balance operational and environmental initiatives and to meet complex economic, engineering, and environmental challenges of dredging and disposal in support of the navigation mission. Research results will provide dredging project managers with technology for cost-effective operation, evaluation of risks associated with management alternatives, and environmental compliance.” See: Dredging Operations and Environmental Research (“DOER”) http://el.erdc.usace.army.mil/dots/doer/

16. Ocean Dumping Act – Dredged Materials Why do we restrict the dumping of something that was already underwater? (http://www.yoto98.noaa.gov/yoto/meeting/mar_env_316.html) “Unregulated and uncontrolled disposal of dredged material can increase suspended solids in the water column and smother benthic organisms. If the sediments are contaminated, there is a potential for acute or chronic toxicity in marine organisms and a risk to human health.”

17. Ocean Dumping Act – Dredged Materials – Fact: • 60 million cubic yards of dredged material are disposed of in the ocean at designated sites. (30 CLMJEL 1). This constitutes approximately 20% of the disposed dredged material.

18. Pre-application Consultation: Includes discussion of alternatives and the information required for use in evaluating the proposed dredged material. • Evaluation of Dredged Material Proposed for Ocean Disposal: Includes development, approval and implementation of a sampling and analysis plan and an assessment of compliance with the ocean dumping criteria. • Permit Application: Title 33 Code of Federal Regulations Part 325.1 (33 CFR 325.1) describes the requirements of the permit application. In addition, the application should include: • a. An evaluation of dredged material disposal alternatives including an examination of potential beneficial uses of the proposed dredged material. • b. Written documentation of the site dredging history and a general survey of other prior or current dredging activities at or near the site. • c. References to existing or prior MPRSA Section 103 permits. • Review of Application for Completeness: Additional information is requested if the application is incomplete. • Issuance of Public Notice by District: Public Notices must include all of the information required in 33 CFR 325.3(a) • EPA Review: EPA has 45 days with an optional additional 45 day extension to review the information and to determine compliance with the ocean dumping criteria. If additional information is needed, EPA has 30 days to request that information. • District Engineer Completes Evaluation: The COE addresses comments and holds a public meeting if needed. • Public Interest Review: The COE considers all comments and incorporate them into the administrative record of the application. • Permit Issued: A decision to issue or deny a permit is discussed in either a Statement of Findings or Record of Decision and the permit is issued. • Permit Public Notice: A list of permit decisions is published. (http://www.epa.gov/region4/water/oceans/Dredged_Material_Permit_Process.html)

19. Ocean Dumping Act – Dredged Material – Site Selection (http://www.epa.gov/owow/oceans/regulatory/dumpdredged/framework/4openwaterdisp.pdf) Selection of sites under the MPRSA is based on criteria to “avoid unacceptable, adverse impacts on biota and other amenities.” Existing information regarding fishing, shipping, mineral extraction, spawning, breeding, nursery grounds, and other cultural and historical elements are examined.

20. Site characteristics considered: • Currents and wave climate. • Water depth and bathymetry. • Potential changes in circulation patterns or erosion patterns related to refraction of waves around the disposal mound. • Bottom sediment physical characteristics including sediment grain-size differences. • Sediment deposition versus erosion. • Salinity and temperature distributions. • Normal levels and fluctuations of background turbidity. • Chemical and biological characterization of the site and environs (e.g., relative abundance of various habitat types in the vicinity, relative adaptability of the benthos to sediment deposition, presence of submerged aquatic vegetation, and presence of unique, rare or endangered, or isolated populations). • Potential for recolonization of the site. • Previous disposal operations. • Availability of suitable equipment for disposal at the site. • Ability to monitor the disposal site adequately for management decisions. • Technical capability to implement management options should they appear desirable. • Ability to control placement of the material. • Volumetric capacity of the site. • Other site uses and potential conflicts with other activities (e.g., sport or commercial fisheries, shipping lanes, and military use).

21. Ocean Dumping Act – Title II Title II concentrates on research concerning ocean dumping as well as the development of technologies and techniques designed to minimize the harm ocean dumping causes to marine ecosystems. (ADMMARL § 18-5) 2 types of research – NOAA and EPA

23. Types of Research - • There are 2 types of research authorized under Title II of the MPRSA: general research under the National Oceanic and Atmospheric Administration (“NOAA”) and research “related to phasing out ocean disposal activities” under the EPA. • The NOAA is “directed to carry out a comprehensive, long-term research program on the effects not only of ocean dumping, but also of pollution, over-fishing, and other human-induced changes on the marine ecosystem.” This includes damage from oil spills. • The EPA is tasked with determining alternatives to ocean dumping. This role includes "research, investigations, experiments, training, demonstrations, surveys, and studies to minimize or end the dumping of sewage sludge and industrial wastes.” • (http://digital.library.unt.edu/govdocs/crs/permalink/meta-crs-1007:1)

24. Ocean Dumping Act – Interactions with other laws: Clean Water Act • The CWA and MPRSA have overlapping jurisdictions in the realm of ocean dumping. Specifically, the dumping from vessels in the territorial seas is regulated in both acts. The EPA passed a uniform set of standards located at 40 C.F.R. §§ 220-29. The MPRSA preempts the CWA in coastal waters and open oceans while the CWA is controlling in estuaries.

25. Ocean Dumping Act – Interactions with other laws: International Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (“Dumping Convention” or “London Convention”) – ratified in 1973 (entered into force in 1975) "take effective measures individually, according to their scientific, technical, and economic capabilities, and collectively, to prevent marine pollution caused by dumping and harmonize their policies in this regard.“ [ADMMARL § 18-5]

26. Ocean Dumping Act – Interactions with other laws: Dumping Convention / London Convention protocols of 1996 Prohibits all dumping except: (1) dredged material; (2) sewage sludge; (3) fish waste; (4) vessels and man-made structures at sea; (5) inert geological material; (6) organic material of natural origin; and (7) certain unharmful bulky items made of iron, steel or concrete. [incineration at sea or dumping of radioactive waste also prohibited] **Although US was instrumental in negotiating 1996 protocols and is a signatory, it has yet to ratify** see: http://www.epa.gov/owow/oceans/regulatory/dumpdredged/londonconvention.html

27. Ocean Dumping Act – Interactions with other laws: Convention of the Law of the Sea 1982 Directs states to control pollution by dumping within its territorial seas, continental shelf, and exclusive economic zone and over vessels flying its flag.

28. Ocean Dumping Act – Interactions with other laws: Law of the Sea Article 200 specifies that signatory states participate and cooperate in “research, exchange information, and participate in regional and international programs for the dissemination of information.” Article 207 allows states to set their own laws and regulations to control pollution through dumping, considering their own “unique geographical characteristics of their particular coastlines when establishing criteria and standards for pollution under those laws.” Article 210 specifies that states should issue permits for dumping within their jurisdictional waters. It specifies that states should periodically reassess permitting standards based on regional and global pollution. (11 BKNJIL 355)

29. Ocean Dumping Act – Interactions with other laws: Law of the Sea Enforcement • Individual states have enforcement powers over their territorial waters, continental shelves, and economic zones • Expands jurisdictional area to: (1)Territorial Sea: extends 12 nautical miles from shore (2) Exclusive economic zone: up to 200 miles out to sea (3) Continental shelf: either 200 miles nautical miles or the “outer edge of the continental margin” (4) Any vessel flying the flag of the nation - Does NOT include “high seas” **widens scope of state control and empowers national laws to control dumping**

30. (1) Governed by Articles 228 and 218 of the Law of the Sea. • Port states can take action against vessels for dumping done outside of their territorial waters. They can only commence proceedings while the offending vessel is within their territorial waters. • (2) Actions against vessels must be suspended if the flag state begins proceedings against the vessel within 6 months unless the coastal state initiating the original action has “sustained major damage” or the flag state has been “lax in enforcing its international obligation to redress dumping violations.” • (3) States are required to settled disputes peacefully. Only monetary penalties are available unless a “willful and serious act of pollution” in the state’s territorial sea takes place. If so, the parties may choose “to have their grievances brought before International Tribunal for the Law of the Sea, the International Court of Justice, an arbitral tribunal, or a special arbitral tribunal.” • (4) Article 246 of the Law of the Sea specifies these jurisdictional boundaries. Articles 218 & 219 enable states to initiate proceedings to punish violators. • (11 BKNJIL 355)

31. Ocean Dumping Act - Remedies Criminal In addition to civil penalties, offenders who “knowingly violates any provision” of the Act or permit conditions shall be: fined under Title 18 imprisoned for >5 AND forfeiture of any property: obtained from the violation AND used to commit the violation

32. Ocean Dumping Act - Remedies Civil - Monetary Fines assessed by Administrator: • Up to $50,000 for each violation • Up to $125,000 for each for medical waste **written notice and opportunity for hearing** [separate days and separate vessels count as separate violations. Example: 5 ships dumping waste for 3 days = 15 separate violations]

33. Ocean Dumping Act - Remedies Civil – Injunctions The Attorney General can bring actions to stop imminent or continuing violations under the Act. US District Courts have jurisdiction to grant this relief.

34. Ocean Dumping Act - Remedies Civil – Suspension and Revocation of Permits The Administrator and Secretary have the right to suspend or revoke any issued permit for a violation of the Act

35. Ocean Dumping Act – Remedies Citizen Suits A private citizen has a right to bring a civil suit under the MPRSA for injunctive relief against any person, including the United States (11th Amend. bar still applicable). The US District Court in the district where the violation occurred has jurisdiction to hear citizen suits without regard to “amount in controversy” or “citizenship of the parties” requirements. **injunctive relief does not foreclose right of individuals to seek alternate relief under other statutes or common law for violations**

37. Ocean Dumping Act - Remedies Citizen Suits Suits cannot be brought: • Within 60 days of informing the Administrator or Secretary about the violation • If the Attorney General is already pursuing legal action, either criminal or civil, against the violator (including permit revocation/suspension)

38. § 1415 (g) Civil suits by private persons  • Except as provided in paragraph (2) of this subsection any person may commence a civil suit on his own behalf to enjoin any person, including the United States and any other governmental instrumentality or agency (to the extent permitted by the eleventh amendment to the Constitution), who is alleged to be in violation of any prohibition, limitation, criterion, or permit established or issued by or under this subchapter. The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such prohibition, limitation, criterion, or permit, as the case may be. • No action may be commenced—(A) prior to sixty days after notice of the violation has been given to the Administrator or to the Secretary, and to any alleged violator of the prohibition, limitation, criterion, or permit; or(B) if the Attorney General has commenced and is diligently prosecuting a civil action in a court of the United States to require compliance with the prohibition, limitation, criterion, or permit; or(C) if the Administrator has commenced action to impose a penalty pursuant to subsection (a) of this section, or if the Administrator, or the Secretary, has initiated permit revocation or suspension proceedings under subsection (f) of this section; or(D) if the United States has commenced and is diligently prosecuting a criminal action in a court of the United States or a State to redress a violation of this subchapter. • (A) Any suit under this subsection may be brought in the judicial district in which the violation occurs. (B) In any such suit under this subsection in which the United States is not a party, the Attorney General, at the request of the Administrator or Secretary, may intervene on behalf of the United States as a matter of right. • The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this subsection may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. • The injunctive relief provided by this subsection shall not restrict any right which any person (or class of persons) may have under any statute or common law to seek enforcement of any standard or limitation or to seek any other relief (including relief against the Administrator, the Secretary, or a State agency).

39. National Marine Sanctuaries Act: Title III • Was enacted in 1972 to protect marine sanctuaries that, “possess conservation, recreational, ecological, historical, research, educational, or esthetic qualities which give them special significance.” • Allows for the creation of national marine sanctuaries by the Secretary of Commerce and denotes prohibited activities and corresponding civil and criminal penalties

40. National Marine Sanctuaries Act- Purpose Policy and Congressional Declaration of Purpose (§ ) • Congress recognized the importance of protecting special areas of the public domain • “[C]ertain areas of the marine environment possess conservation, recreational, ecological, historical, scientific, educational, cultural, archeological, or esthetic qualifies which give them special national, and in some cases international, significance; • Congress’ goal was to establish a federal program which establishes areas of the national marine environment that have the special qualities listed above

41. National Marine Sanctuaries Act- Goals • To create a “National Marine Sanctuary System,” comprised of areas of the marine environment that are of special national significance • To provide authority for comprehensive and coordinated conservation and management of these marine areas • To support, promote, and coordinate scientific research • To develop and implement coordinated plans for the protection and management of these areas

42. National Marine Sanctuaries Act- Significance Why is it important to have sanctuaries? “The primary objective of a sanctuary is to protect its natural and cultural features while allowing people to use and enjoy the ocean in a sustainable way. Sanctuary waters provide a secure habitat for species close to extinction and protect historically significant shipwrecks and artifacts. Sanctuaries serve as natural classrooms and laboratories for schoolchildren and researchers alike to promote understanding and stewardship of our oceans. They often are cherished recreational spots for sport fishing and diving and support commercial industries such as tourism, fishing and kelp harvesting.” - Office of National Marine Sanctuaries

43. National Marine Sanctuaries Act- Definitions • Marine Environment: areas of the coastal and ocean waters, the Great Lakes and their connecting waters, and submerged lands over which the United States exercises jurisdiction including the exclusive economic zone, consistent with international law • Secretary: Secretary of Commerce • Sanctuary Resource: any living or nonliving resource of a national marine sanctuary that contributes to the conservation, recreational, ecological, historical, educational, cultural, archeological, scientific, or aesthetic value of the sanctuary

44. National Marine Sanctuaries Act: Creation of Sanctuaries The Act gives the Secretary of Commerce the power to designate an area as a national marine sanctuary if… • The area is of special national significance • Existing state and federal authorities or law are not adequate or need to be supplemented “to ensure coordinated and comprehensive conservation and management of the area, including resource protection, scientific research, and public education.” • Congress can also designate sanctuaries • The President can designate Marine National Monuments as part of the National Sanctuary System (under authority from the Antiquities Act to establish Marine National Monuments)

45. National Marine Sanctuaries Act: Public Involvement Once the Secretary determines that an area should be designated as a national marine sanctuary, the Act sets forth a procedure for creating the designation. One important provision provides for proposed regulations to be published in the Federal Register (official daily publication for rules, proposed rules, and notices of Federal agencies and organizations). The public is invited to send comments and suggestions relating to these proposed regulations. Once the comments are taken into account by the Secretary, a final rule will be published in the Federal Register.

46. National Marine Sanctuaries Act: Map of National Sanctuary System http://sanctuaries.noaa.gov/visit/welcome.html

47. Fernando De Noronha Monterey Bay Thunder Bay http://www.wildnatureimages.com/Monterey%20Bay%20National%20Marine%20Sanctuary%202.htm http://photopages.info/archives_digital_photo/date/2007/04/11/ Michpics.wordpress.com Fagatele Bay Gray’s Reef http://www.loc.gov/rr/scitech/tracer-bullets/fish.html Florida Keys http://www.loc.gov/rr/scitech/tracer-bullets/fish.html Hawaiian Islands Humpback Whale Olympic Coast http://celebrating200years.noaa.gov/events/conservstewards/image3.html http://www.magazine.noaa.gov/stories/images/fagatelebay.jpg http://www.noaanews.noaa.gov/stories2008/20080918_olympiccoast.html

48. National Marine Sanctuaries Act: Advisory Councils The Act gives the Secretary the power to establish advisory councils to “advise and make recommendations . . . regarding the designation and management of national marine sanctuaries.”

49. National Marine Sanctuaries Act: Administration The Secretary has put the National Oceanic and Atmospheric Administration (NOAA) in charge of the administration of national marine sanctuaries. The NOAA created the Office of National Marine Sanctuaries which manages the fourteen national marine sanctuaries. http://sanctuaries.noaa.gov/welcome.html

50. National Marine Sanctuaries Act: Creation of Sanctuaries The Secretary is also given the power to create any necessary regulations to apply to each sanctuary.