The various (and increasing) human uses of ocean resources can cause impacts. The application of federal environmental laws to impact reduction is effective at smaller scales, and indispensable but limited. Most legal and regulatory controls evolved to become relevant after damages have been done and come more from a redress or remedy perspective. Over time, as impacts to the ocean have become more complex and overlapping and the consequences chronic, proactive tools aimed toward awareness and prevention must be developed. The law is only one part of a toolbox that includes public involvement in education and outreach, sophisticated and nuanced long-term stakeholder processes, volunteer programs such as beach clean ups, habitat monitoring, and coastal restoration. This unit will present an overview of statutory approaches to a handful of ocean impacts including overfishing, bycatch, and examples of pollution sources.
Overfishing and Fisheries Recoveryand SFA (the 1996 amendments to the 1976 Magnuson Act) evolved to require science-based management through new accountability measures and the mandatory incorporation of the ten national standards (16 USC § 1651) in each fisheries management plan (FMP) produced by the eight US regional fishery management councils (review the eight councils here).
While US management under the MSA is achieving successes in many fisheries, the over-exploitation of fish stocks remains a significant threat to an important source of high-quality protein for humans, as well as an economic and cultural threat to coastal economies. Overfishing also poses a serious biological impact on marine ecosystems. Overfishing represents disruption of predator-prey and other food-web dynamics, and removal of biomass and nutrients from the biogeochemical cycle. In response, MSA requires Regional Fishery Management Councils to devise an effective FMP for every overfished stock; the FMP must contain concrete steps to rebuild the fishery.
At NOAA’s site detailing Essential Fish Habitat the EFH regulatory guidelines are posted (50 CFR Ch. VI Subpart J, Essential Fish Habitat). A review of these regulations provides a glimpse into the enormous detail that goes into determining, mapping, and improving the EFH required in every FMP.
Coordination is required at two levels (NMFS with federal and state agencies, and NMFS with the eight RFMCs—recall the Unit 3 discussion of administrative examples of EBM).
Declaring certain areas as essential fish habitat (EFH) is a major tool to rebuild fisheries, with west coast groundfish as only one example. Identifying and protecting EFH is an EBM-based strategy (Unit 3). EFH plans are reviewed every five years.
There are over 100 identified types of EFH covering all aquatic habitats. For example, rivers, wetlands, estuaries, coral and rocky reefs, kelp forests and seagrass beds are included. Note that some of these EFH categories are important land-based habitats—not all are ocean ecosystems. Here is the general regulatory definition of EFH (50 CFR §600.10).
Essential fish habitat (EFH) means those waters and substrate necessary to fish for spawning, breeding, feeding, or growth to maturity. For the purpose of interpreting the definition of essential fish habitat: Waters include aquatic areas and their associated physical, chemical, and biological properties that are used by fish and may include aquatic areas historically used by fish where appropriate; substrate includes sediment, hard bottom, structures underlying the waters, and associated biological communities; necessary means the habitat required to support a sustainable fishery and the managed species’ contribution to a healthy ecosystem; and spawning, breeding, feeding, or growth to maturity covers a species’ full life cycle.
For a concrete example, ten species of groundfish on the US west coast were overfished. Today, seven of the ten are declared rebuilt. For a feature about two newly recovered rockfish species, and photographs (darkblotched rockfish and bocaccio) see here.
Geographic delineations are described with precision in the EFH regulation specifically for Pacific Groundfish, see here (50 CFR 660.75). These habitats are mapped and available for viewing. To learn more, take a look at the EFH maps of Pacific Groundfish (the final rule, final Environmental Impact Statement (EIS), and Record of Decision (ROD) are also available here for this fishery).
The Impact of Incidental Take, or Bycatch
Incidental take, also called bycatch, refers to the mortality and discard of species (not just fish, but any ocean species including mammals and sea birds) that are unintentionally caught in the course of commercial fishing activities.
The statutory definition of bycatch is located in MSA Standard 9 (50 CFR Chapter VI Part 600(D).600.350). If marine mammals or endangered species are involved as bycatch, MMPA and ESA also apply since an illegal taking has occurred.
Bycatch represents a serious and persistent ocean impact. Innovations in policy and re-designed fishing gear, seasons and practices to reduce bycatch are still a national work in progress. NOAA Fisheries devised a National Bycatch Strategy, revised in 2016, that contains five main objectives.
The national program emphasizes collaboration with states, other agencies, and stakeholders and includes implementation of fisheries observers. In many cases, fishermen themselves have designed new gear (in collaboration with engineers, scientists, and inventors) to eliminate or reduce bycatch within specific fisheries. Click to see a video (provided by an environmental NGO) that tells the story of a collaborative project to design a better trawl net that lets juvenile fish escape.
Globally, one annual estimate of bycatch is 8.5 million tonnes (or 40.4 percent of the annual catch estimate of 95.2 million tonnes, from the authors’ data). The authors note that using weight alone, hides the true impact and dire consequences of removing tonnes of juvenile fish from the system, thus the impact in terms of ecology (and fisheries future productivity) is far greater (Davies et al. 2009).
Reliable estimates of annual bycatch among US fleets are difficult to identify; previous data are reported from 2011-2013 (US National Bycatch Report 2016).
Moore et al. (2009) reviewed US fishing mortality to sea turtles, marine mammals and birds and found that while policy has led to significant improvement,
cumulative estimates are lacking for all taxa, but particularly for sea turtles and seabirds in most places where it occurs, observer coverage levels are insufficient to accurately characterize these rare bycatch events across fleets (Moore et al. 2009, p. 445).
As of August 2017, NOAA Fisheries (NMFS) awarded $2.3 M to eighteen different bycatch reduction research projects around the US. To learn more about this initiative, please visit (fisheries.noaa.gov/feature-story/2017-bycatch-reduction-engineering-program-awards).
This section will present an overview of US pollution regulation in terms of approaches generally described as prevention and control (via Clean Water Act (CWA) Section 403 Ocean Discharge Criteria). Resources related to reduction and response (oil spill civil and criminal liability in CWA Section 311), or the domestic and international laws prohibiting ocean dumping are provided in Unit 5 Resources in the Appendix.
Marine pollution poses short- and long-term impacts on organisms, biodiversity, food webs (including benthic), and sometimes contains toxic contaminants. In some instances, the compounds were banned decades ago but remain as ‘legacy pollution’—the compound has already dispersed but persists in the environment such as river substrates or bay and ocean bottom sediments. Polychlorinated biphenyls, or PCBs are an example. Banned in the US in 1979 and around the same time in Canada, this contaminant has been shown to be toxic to humans and wildlife (see oceanservice.noaa.gov/facts/pcbs.html).
Another example, polycyclic aromatic hydrocarbons (PAHs), are a component of petroleum entering the sea from oil spills, terrestrial runoff, and other sources. Exposure to contaminated prey can lead to malformed embryos in mammals, and has been suspected in certain lung infections in dolphins following the New Horizon platform blowout (Venn-Watson et al. 2015).
Contaminants in the ocean largely come from terrestrial-based sources, including stormwater runoff and stream outflows that collect trash that blown by the wind. Plastics in the ocean (from land and ships) are an enormous threat to marine life for several reasons: fish, mammals and birds that ingest plastic mistaking it for prey face high mortality. Floating plastic objects are a vector for invasive species and pathogens. As they degrade in saltwater, plastics leach chemical compounds, as they degrade further they become smaller and smaller until they are what is called microplastics—plastic particulates that float in the water column. The increase of major storm events will only exacerbate the problem of plastics in the oceans.
Reducing the use of plastics, recycling them or disposing of them properly, through highly visible, consistent programs to keep plastics and all trash out of coastal watersheds and the ocean are objectives that are clearly achievable through community education, grassroots volunteer programs such as beach clean up events. Within coastal marinas, local ordinances with boater education and onsite recycling centers could be very beneficial. At the state level, regulations related to individual coastal state management plan priorities can help. The strongest intervention options toward a solution are most likely located within organized, focused efforts at the local level.
Many coastal states have marine debris action plans. The NOAA Office of Response and Restoration is a source for examples of published reports and technical memos from the coastal states (marinedebris.noaa.gov/reports-and-technical-memos). NOAA’s 2017 report on the accomplishments provides a snapshot of progress at the national level. During 2017,
- More than 1600 metric tons of marine debris were removed
- Three Marine Debris Emergency Response Guides were created for South Carolina, Georgia and Mississippi
- More than 1800 teachers were reached, and more than 18,300 students
- Forty-two new survey sites were added to the Monitoring and Assessment Project
- The Program responded to debris cleanup from three hurricanes (Harvey, Irma, Maria)
However, flows that do not come from a pipe, a ship, or a floating platform (all regulated point sources) are nonpoint source pollution, which is (if regulated at all) a local concern to be touched on in Unit 9 (Coastal Management). Flows that come from pipes, ships, and platforms are regulated through permits, reviewed every five years, via the CWA provisions regarding ocean discharges (33 USC 1343; see below).
Within three miles of the coastline, water-quality criteria are established by EPA-authorized state water quality programs. Coastal water quality monitoring in conjunction with beaches and water recreation can be found on state coastal management agency websites. The EPA, under its mission to protect human health, also provides coastal water quality information and warnings to the public (epa.gov/beaches/find-information-about-your-beach). The grassroots nonprofit Surfrider Foundation also monitors coastal water quality and provides periodic reports online; the most recent Surfrider Report is from November 2017 (surfrider.org/coastal-blog/entry/2017-state-of-the-beach-report).
The CWA’s National Pollution Discharge Elimination System (NPDES) regulates point source (think end-of-pipe) ocean discharges beyond three-mile state waters with criteria set by the EPA. The ocean discharge permit program applies to around 300 types of facilities, including offshore oil and gas activities, and seafood processing.
EPA uses seven guidelines to determine whether or not to issue an ocean discharge permit. Permit applicants must submit analyses of their proposed discharges (biological, ecological, and chemical). EPA reviews the permit applications to evaluate whether the activity will unreasonably degrade the marine environment through an analysis of ten factors (in 40 CFR 125.122; see second table, below). If a proposed discharge meets the adjacent coastal state’s water quality standards, there is a presumption that the discharge will not cause an unreasonable degradation.
Clean Water Act NPDES Ocean Discharge Criteria
33 USC § 1343; see also Regulations at 40 CFR §§ 125.120 – 125.124
(c) Guidelines for determining degradation of waters
(1) The [EPA] Administrator shall, within one hundred and eighty days after October 18, 1972 (and from time to time thereafter), promulgate guidelines for determining the degradation of the waters of the territorial seas, the contiguous zone, and the oceans, which shall include:
(A) the effect of disposal of pollutants on human health or welfare, including but not limited to plankton, fish, shellfish, wildlife, shorelines, and beaches;
(B) the effect of disposal of pollutants on marine life including the transfer, concentration, and dispersal of pollutants or their by-products through biological, physical, and chemical processes; changes in marine ecosystem diversity, productivity, and stability; and species and community population changes;
(C) the effect of disposal, of pollutants on esthetic, recreation, and economic values;
(D) the persistence and permanence of the effects of disposal of pollutants;
(E) the effect of the disposal of varying rates, of particular volumes and
concentrations of pollutants;
(F) other possible locations and methods of disposal or recycling of pollutants including land-based alternatives; and
(G) the effect on alternate uses of the oceans, such as mineral exploitation and scientific study.
(2) In any event where insufficient information exists on any proposed discharge to make a reasonable judgment on any of the guidelines established pursuant to this subsection no permit shall be issued under section 1342 of this title.
NPDES Ocean Discharge Criteria,
Determination of unreasonable degradation of the marine environment
Regulation 40 CFR 125.122
(a) The [EPA] director shall determine whether a discharge will cause unreasonable degradation of the marine environment based on consideration of:
(1) The quantities, composition and potential for bioaccumulation or persistence of the pollutants to be discharged;
(2) The potential transport of such pollutants by biological, physical or chemical processes;
(3) The composition and vulnerability of the biological communities which may be exposed to such pollutants, including the presence of unique species or communities of species, the presence of species identified as endangered or threatened pursuant to the Endangered Species Act, or the presence of those species critical to the structure or function of the ecosystem, such as those important for the food chain;
(4) The importance of the receiving water area to the surrounding biological community, including the presence of spawning sites, nursery/forage areas, migratory pathways, or areas necessary for other functions or critical stages in the life cycle of an organism.
(5) The existence of special aquatic sites including, but not limited to marine sanctuaries and refuges, parks, national and historic monuments, national seashores, wilderness areas and coral reefs;
(6) The potential impacts on human health through direct and indirect pathways;
(7) Existing or potential recreational and commercial fishing, including fin fishing and shellfishing;
(8) Any applicable requirements of an approved Coastal Zone Management plan;
(9) Such other factors relating to the effects of the discharge as may be appropriate;
(10) Marine water quality criteria developed pursuant to section 304(a)(1).
Acidification caused by fossil fuel burning is an urgent climate change impact on the pH of seawater and is a threat to all ocean systems and fisheries, particularly shellfish. Ocean acidification is caused by dissolved CO2, but made worse by warmer ocean temperatures. Outflows of stormwater, the volume of which is increasing due to more frequent and severe storm events, also contribute to acidification because they contain compounds including nutrients such as nitrate from agricultural fertilizer and manure, and deposition (both wet and dry) of nitrogen compounds from air pollution. As 170 nations move ahead implementing their commitments under the most recent Climate Accord, perhaps the best option presently is outreach and education, and to strengthen current regulatory approaches (US Clean Air Act and Clean Water Act) at the local, state, and regional levels regarding improving air quality, and reducing contaminants in stormwater runoff.
Acidification interferes with shell building by oysters, a commercially valuable resource. To get an idea of how changing biogeochemical cycles and ocean chemistry can impact shell building, review this interactive explanation from the Woods Hole Oceanographic Institution.
In regard to large, complex phenomena such as ocean acidification it is important to bring home its importance, to the greatest extent possible, in a local, personal context. Moreover, it is critical to educate and involve community members in actions to confront the problem. Kelly et al. (2013) found that data alone representing the environmental risk of ocean acidification was less effective at motivating decision-making leading to action than developing an effective, accompanying narrative—i.e. telling the story of the impact to give the data more meaning. The case study involved oyster production in the Whiskey Creek Shellfish Hatchery on the Oregon coast. The hatchery, according to the authors, produces approximately 75% of juvenile Pacific oysters for the million-dollar West Coast oyster aquaculture industry. When the hatchery began to experience up to 80% mortality of its larvae, it partnered with scientists and others to begin water quality monitoring, which revealed a strong correlation between the mortality periods and seasonal coastal upwelling of acidic bottom waters. In 2011, the Governor of Washington convened a Blue Ribbon Panel on Ocean Acidification that was widely inclusive of government, nongovernmental organizations, scientists, and the industry. Eventually, the Panel’s efforts led to a set of commitments by the state, “Washington’s Response to Ocean Acidification.”
Kelly et al. point out that narratives can link knowledge to action, partly because audiences remember narrative far more than information presented in an expository format). The authors note:
We suggest that this story gained critical traction because it featured identifiable and sympathetic characters—real people—with both the capacity and the willingness to share their story outside the boundaries of their community, and because their story was consistent with the effects predicted by a growing body of biophysical data. WC [the narrative] personified the economic impacts of one specific form of environmental change—ocean acidification—and did so in a credible and accessible way…[that] … was perceived to clearly link a specific environmental change to effects on real people, the small but important local industry that they support, and the provision of food from the sea. (Kelly et al. 2013)
An appendix of Resources at the end of the book contains supplemental information relevant to water quality problems discussed above as well as the regulation of other pollution impacts (ocean dumping, oil spills, and marine debris such as plastics, lost or discarded fishing gear sometimes called ‘ghost nets’; see resources for unit five).
Unit 6 will present important aspects of international fisheries management.
Unit 5 Study Questions
- Is there a connection between watershed management, drinking water, wastewater discharges, and ocean water quality?
- What are possible options for addressing marine debris from land? From offshore sources?
- Some regional approaches are showing signs of success in decreasing pollution to large water bodies, such as the Chesapeake Bay. The plan for restoring the Bay is a very long-term, ongoing effort, involving multiple and complex efforts to curb pollution from various land use activities, air pollution, and runoff from a 64,000 square mile watershed touching six states and the District of Columbia. The restoration chiefly involves coordination, collaboration, enforceable standards (pollution limits) under the umbrella of a CWA Total Maximum Daily Load (TMDL; see https://www.epa.gov/chesapeake-bay-tmdl). If this holistic, longterm approach can work in a geographic area this large and diverse, could it work elsewhere? What short- and long-term benefits might a cohesive, national coastal watershed effort have for ocean water quality? Recreation? Ecosystems? Fisheries?
Unit Five Appendix