Seaward Limit of Laws

 

Act to Prevent Pollution from Ships Anchorage Grounds Antarctic Conservation Act Antiquities Act of 1906 Assault on Fisheries Observer
Clean Water Act Coastal Zone Management Act Comprehensive Environmental Response, Compensation, and Liability Act of 1980 Deep Seabed Hard Mineral Resources Act (DSHMRA) Deepwater Port Act of 1974
Endangered Species Act The Fur Seal Act of 1966 Historic Sites, Buildings, and Antiquities Act 
(HSA) of 1935
Longshore and Harbor Workers' Compensation Act Magnuson-Stevens Fishery Conservation and Management Act
Marine Mammal Protection Act Migratory Bird Treaty Act National Environmental Policy Act National Historic Preservation Act National Marine Sanctuaries Act
Native American Graves Protection and Repatriation Act Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 Ocean Dumping Act Ocean Thermal Energy Conversion Act of 1980 Oil Pollution Act
of 1990
Outer Continental Shelf Lands Act of 1953 Plunder Statue Ports and Waterways Safety Act of 1972 Recreational Vessels Act Rivers and Harbors Act of 1899
Sunken Military Craft Act Whaling Convention Act of 1949  

 

Laws enacted by Congress are presumed to apply within the territory of the United States (including within either a 3- or 12-nautical mile territorial sea), unless otherwise explicitly provided. In 2010, the Supreme Court confirmed the "longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States’" (Morrison v. National Australia Bank, Ltd., 130 S.Ct. 2869, 2877 (2010)).

The Court stated, "This principle represents a canon of construction, or a presumption about a statute’s meaning, rather than a limit upon Congress’s power to legislate . . . . It rests on the perception that Congress ordinarily legislates with respect to domestic, not foreign matters . . . . Thus, ‘unless there is the affirmative intention of the Congress clearly expressed’ to give a statute extraterritorial effect, ‘we must presume it is primarily concerned with domestic conditions’ . . . . The canon or presumption applies regardless of whether there is a risk of conflict between the American statute and a foreign law . . . . When a statute gives no clear indication of an extraterritorial application, it has none." (Id. at 2877-78).

NOAA administers a number of laws that, as a matter of law or policy, it interprets as applying beyond the territory of the United States. In addition, there are laws of interest to NOAA that have been interpreted to apply beyond the territory of the United States.


Act to Prevent Pollution from Ships (APPS), 33 U.S.C. §§ 1905-1915

The Act to Prevent Pollution from Ships (APPS) implements the 1973 International Convention for the Prevention of Pollution from Ships and the Protocol of 1978 Relating to the International Convention for the Prevention of Pollution from Ships, also known as MARPOL 73/78 (MARPOL). Ships of U.S. registry or operated under the authority of the U.S. excluding warships, ships under 400 tons, and other minor exceptions, are subject to the Act’s discharge provisions worldwide. In regards to foreign-flagged ships, there are different areas of applicability depending on the MARPOL pollution discharge category involved. (33 U.S.C. § 1902).

To date, the Second, Third, and Fifth U.S. Circuit Courts of Appeal, as well as the U.S. district courts in the First and Eleventh Circuits, have held that APPS applies to foreign-flagged vessels within U.S. jurisdictional waters, which include its ports or terminals, internal waters, territorial sea, and the exclusive economic zone. See Nicholas H. Berg, Bringing It All Back Home: The Fifth and Second Circuits Allow Domestic Prosecutions for Oil Record Book Violations on Foreign-Flagged Vessels, 34 Tul. Mar. L.J. 253, 257 (2009). Although the actual discharge of illegal pollution may occur outside of U.S. jurisdiction, the failure to maintain an Oil Record Book detailing the discharge that takes place within the jurisdictional waters of the United States may also be a violation. If a ship enters United States waters without maintaining an Oil Record Book, or knowingly provides false information pertaining to their oil discharges as outlined in MARPOL, the ship may be in violation of APPS.

Additional reference information: Some of these links are to external sites.


Anarctic Conservation Act, 16 U.S.C. §§ 2401-2413

The Antarctic Conservation Act, enacted in 1978, provides for the conservation and protection of the Antarctic resources consistent with the Protocol on Environmental Protection to the Antarctic Treaty, signed October 4, 1991. The Act applies to the natural and cultural resources associated with the land, ice shelves and water south of the 60 deg. latitude. (16 U.S.C § 2402). The Act provides a list of 13 activities that are prohibited to protect Antarctica and an additional 5 activities that are prohibited unless authorized by a permit issued by the National Science Foundation. (16 U.S.C. § 2403-2404). Applications for permits that undertake actions with respect to the Endangered Species Act of the Migratory Bird Treaty Act require consultation with the Department of Commerce or Interior. The obligations under the Protocol for environment impact assessments are to be carried out by applying NEPA including tourism and other non-governmental activities which are subject to regulations promulgated by the Environmental Protection Agency. Violations of the Act are punishable in the form of both civil and criminal charges with fines up to $10,000 per day and up to a year in prison. (16 U.S.C §§ 2407-2408).

Additional reference information: Some of these links are to external sites.


Antiquities Act of 1906, 16 U.S.C. §§ 431-433

The Antiquities Act of 1906 is the first United States statute to authorize general protection of natural and cultural heritage. The Act grants the President authority to establish national monuments on lands "owned or controlled by the United States" that contain objects or areas of historic or scientific interest. Presidential designation of land as a national monument can limit land uses. In particular, development or recreation may be regulated or prohibited to protect the objects or areas listed in the Presidential proclamation establishing the national monument.

The Act has been construed to apply in the marine environment to the outer limit of the exclusive economic zone (OLC Opinion Sept. 2000). The Department of Justice Office of Legal Counsel issued an Opinion dated September 15, 2000 which provides that the President "may use his authority under the Antiquities Act to establish a national monument in the exclusive economic zone to protect marine resources." As noted in Alaska v. United States (2005), the Act also gives the President the power to reserve submerged lands for the purpose of protecting wildlife and nature, even lands to which rights, title, and interest may otherwise have been granted to states under the Submerged Lands Act (545 U.S. 75, 108). In Alaska v. United States, the National Monument in question, Glacier Bay, was established before Alaska became a state.

The Antiquities Act has been applied at least four times to create marine national monuments, all of which extend beyond the outer limit of the twelve nautical mile territorial sea. The four monuments — the Papahanaumokuakea Marine National Monument, the Marianas Trench Marine National Monumentthe Pacific Remote Islands Marine National Monument, and the Rose Atoll Marine National Monument — encompass almost 214,777,000 acres of marine environment. This is larger than the land areas of Texas and Florida combined. The Marianas Trench Marine National Monument covers only submerged lands around the trench itself and around twenty one undersea volcanos. The Monument also covers the waters and submerged lands around the three northernmost Mariana Islands.

Additional reference information: Some of these links are to external sites.


Light mantled sooty albatross and chick

Photo 74: Coast Guard at-sea boarding. 
(Coast Guard web site)

Assault on Fisheries Observer, 18 U.S. C. §§ 111, 114

U.S. District Courts have held that this federal statute is applicable to the assault on a fisheries observer on board a foreign vessel in the U.S. EEZ. SeeU.S. v. Jung Sik Lee, Case No. A86-132 (D. Alaska 1987).

Additional reference information: Some of these links are to external sites.


Clean Water Act, Previously Referred to as the Federal Water Pollution Control Act, , 33 U.S.C. §§ 1251 et seq

The Clean Water Act (CWA or the Act) identifies different seaward jurisdictional limits for a variety of different purposes.  The regulatory provisions of the CWA control the “discharges of pollutants.”  The Act defines “discharge of a pollutant” to include the addition of pollutants to “navigable waters” from any point source and the addition of pollutants to waters of the “contiguous zone” or the “ocean” from any point source other than a vessel or other floating craft.  33 U.S.C. § 1362(12).

The CWA defines "navigable waters" as "waters of the United States, including the territorial seas."  33 U.S.C. § 1362(7).  The term “territorial seas” are in turn defined as the belt of seas extending three miles seaward of the ordinary low water mark.  33 U.S.C. § 1362(8).  Beyond the three mile territorial seas, the jurisdiction of the Act extends seaward to include the next nine mile "contiguous zone."  33 U.S.C. § 1362(9); Department of State Public Notice 358, 37 Fed. Reg. 11,906 (June 15, 1972).  Because the CWA’s provisions applicable to state water quality standards and state National Pollutant Discharge Elimination System (NPDES) permitting programs extend to the navigable waters (i.e., the waters of the United States, including the territorial seas), courts have held that state NPDES permitting programs extend only to the navigable waters, and thus that only the U.S. Environmental Protection Agency may issue CWA permits for discharges seaward of the three mile territorial sea.  See Pac. Legal Found. v. Costle, 586 F.2d 650, 655-56 (9th Cir. 1978), rev’d on other grounds, 445 U.S. 198 (1980).  The "ocean" is broadly defined by the Act as "any portion of the high seas beyond the contiguous zone."  33 U.S.C. § 1362(10).

Additional reference information:Some of these links are to external sites.


Coastal Zone Management Act, 16 U.S.C. §§ 1451 et seq.

The Coastal Zone Management Act (CZMA), enacted in 1972, encourages coastal states to develop and implement Coastal Zone Management Plans (CZMPs), with the aim of preserving, protecting, developing, and restoring the coastal zones and coastal resources. Most coastal states have federally approved CZMPs.

The term "coastal zone," as applied to coastal states, includes the coastal waters, the lands found in and under the coastal waters, and the adjacent shorelands (16 U.S.C. § 1453(1)). The coastal zone extends, in the Great Lakes, to the international boundary between the United States and Canada and, in other areas, to the outer limit of state title and ownership under the Submerged Lands Act (43 U.S.C. §§ 1301 et seq.), the Act of March 2, 1917 (48 U.S.C. § 709), the Covenant to Establish a Commonwealth of the Northern Mariana Islands in Political Union with the United States of America, as approved by the Act of March 24, 1976 (48 U.S.C. § § 1801 et seq.), or Section 1 of the Act of November 20, 1963 (48 U.S.C. § 1705) (16 U.S.C. § 1453). However, states’ coastal zones specifically excludes "lands the use of which is by law subject solely to the discretion of or which is held in trust by the Federal Government, its officers or agents."

U.S. jurisdiction over waters off its coasts extends to the seaward limit of its 200 nautical mile exclusive economic zone (EEZ), and to the outer limit of its continental shelf (Presidential Proclamation 5030 of March 10, 1983: Exclusive Economic Zone of the United States (48 Fed. Reg. 10605); Presidential Proclamation 2667 of September 28, 1945 (10 Fed. Reg. 12303). The CZMA contains a "federal consistency provision," that requires federal agency activities that have reasonably foreseeable effects on state coastal zones to be consistent to the maximum extent practicable with the enforceable policies of a coastal state’s federally approved coastal management program (16 U.S.C. § 1456).

Additional reference information: Some of these links are to external sites.


Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. §§ 9601-9675

CERCLA defines the “environment” (to which CERCLA applies) to mean the navigable waters, the waters of the contiguous zone, and the ocean waters of which the natural resources are under the exclusive management authority of the United States under the Magnuson-Stevens Fishery  Conservation and Management Act, as well as any other surface water, ground water, drinking water supply, land surface or subsurface strata, or ambient air within the United States or “under the jurisdiction” of the United States.  42 U.S.C. § 9601(8).  Federal courts have ruled both ways on the extraterritorial application of CERCLA.  CERCLA’s definition of the terms “United States” and "State" to which CERCLA’s provisions apply includes territories and possessions over which the U.S. exercises jurisdiction.  42 U.S.C. § 9601(27).  Similarly, the definition of "person" includes "corporations" but does not clarify whether this term encompasses only domestic corporations or whether it also includes foreign corporations.  42 U.S.C. § 9601(21).

Additional reference information:Some of these links are to external sites.