Seaward Limits of U.S.

NOAA Office of the General CounselNOAA Office of the General Counsel
Home  | About Us  | The General Counsel  | Offices  | Links  | Documents  | Contacts  | Site Map  | Click to Search NOAA.gov

SEAWARD LIMIT OF U.S. LAWS

Act to Prevent Pollution from Ships 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 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 Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 Ocean Dumping Act Oil Pollution Act
of 1990		 Outer Continental Shelf Lands Act of 1953 Ports and Waterways Safety Act of 1972

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.

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 Monument, the 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.

Vandalized buoy.
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. See U.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 (CWA), also known as the FEDERAL WATER POLLUTION CONTROL ACT, 33 U.S.C. §§ 1251 et seq.

The Federal Water Pollution Control Act (FWPCA), also known as the Clean Water Act (CWA), contains several different seaward jurisdictional limits. The CWA operates primarily by regulating discharges of pollutants. The Act defines discharge of a pollutant to include the addition of pollutants to navigable waters from point sources and the addition of pollutants to waters of the contiguous zone or the ocean from any point source (aside from vessels and floating crafts)(33 U.S.C. § 1362(12)).

The CWA defines ‘"navigable waters" as "waters of the United States, including territorial seas," which are in turn defined to extend three nautical miles seaward. (33 U.S.C. § 1362(7)-(8)). Beyond the 3 nm limit, the jurisdiction of the Act also includes the "contiguous zone" which reaches 12 nautical miles seaward. (33 U.S.C. § 1362(9)). Since state power to enforce the Act only extends to the territorial sea, courts have held that only the Federal Government through the United States Environmental Protection Agency (EPA) may issue permits for discharges beyond the territorial sea, which include "all ocean waters." See Pac. Legal Found. v. Costle, 586 F.2d 650, 655-56 (9th Cir. 1978) (holding that beyond the three-mile limit of the territorial sea, only the EPA can issue NPDES permits).

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)). While the jurisdiction implied by that statement seems to include the contiguous zone, high seas, and all waters beyond, the reach of the NPDES discharge permit issuance is effectively limited to the U.S. Exclusive Economic Zone (EEZ). See Presidential Proclamation No. 5030, 48 Fed. Reg. 10,605 (Mar. 14, 1983).

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

U.S. Federal courts have ruled both ways on the extraterritorial application of CERCLA. The definition of "state" in CERCLA to which CERCLA’s provisions apply includes "possessions and territories of the United States." Similarly, the definition of "persons" includes "corporations" but does not clarify whether this term encompasses only domestic corporations or foreign corporations, as well.

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

Deep Seabed Hard Mineral Resources Act (DSHMRA), 30 U.S.C. §§ 1401-1473 (2002)

The Deep Seabed Hard Mineral Resources Act (DSHMRA), which became law on June 28, 1980, establishes an interim framework for the orderly development of hard mineral resources of the deep seabed, pending agreement on an international regime. 30 U.S.C. § 1401(b); 30 U.S.C § 1441(3). DSHMRA applies to U.S. citizens and vessels, as well as foreign persons and vessels otherwise subject to U.S. jurisdiction, who engage in exploration for and commercial recovery of deep seabed hard mineral resources. 30 U.S.C. § 1402(a)(1). Under DSHMRA, "deep seabed" means the area seaward of the United States’ Continental Shelf, as defined under the 1958 Shelf Convention, 30 U.S.C § 1403(2), and seaward of the Continental Shelf or national resource jurisdiction of any other nation. 30 U.S.C. § 1403(4). Although the Act contains a disclaimer of extraterritorial jurisdiction, 30 U.S.C. § 1402(a)(2), it plainly regulates conduct of U.S. citizens and others subject to U.S. jurisdiction when they engage in exploration for and exploitation of deep seabed hard mineral resources in or under the seafloor beyond national jurisdiction. 30 U.S.C. § 1402(a)(1).

DSHMRA also extends Clean Water Act jurisdiction to any discharge of a pollutant from vessels and other floating craft engaged in commercial recovery or exploration under the Act. 30 U.S.C. § 1419(e). Thus, such vessels are subject to Clean Water Act regulation even when on the high seas.

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

Deepwater Port Act of 1974, 33 U.S.C. §§ 1501–1524 (2006), amended by the Maritime Transportation Security Act of 2002, 46 U.S.C. § 70101 et seq.

The Deepwater Port Act of 1974 (DWPA) was enacted to regulate the location, ownership, construction, and operation of deepwater ports involved in oil and natural gas operations beyond three nautical miles from the U.S. baseline. 33 U.S.C. § 1501(a)(1). These activities are regulated through a licensing system, which is overseen by the Secretary of Transportation through the Maritime Administration (MARAD) in conjunction with the U.S. Coast Guard. 33 C.F.R. § 148.3. The Secretary of Transportation is required to establish environmental review criteria for the location, construction, and operation of deepwater ports consistent with the National Environmental Policy Act (NEPA). 33 U.S.C § 1505. The DWPA authorizes the NOAA Administrator to advise the Department of Transportation on the environmental review criteria for deepwater port applications, the site evaluation and preconstruction testing at potential locations, and the designation of "adjacent coastal state" status. 33 U.S.C. §§ 1505(a), 1508(a)(2).

A deepwater port is "any fixed or floating manmade structure other than a vessel," which is used as a terminal for natural gas operations or other uses consistent with the statute, and is located beyond State seaward limits (three nautical miles except in the Gulf of Mexico where it is nine nautical miles). 33 U.S.C. § 1502(9). Accordingly, U.S. jurisdiction under the DWPA begins three nautical miles from U.S. baseline (typically the mean low water mark). The DWPA does not specify a seaward jurisdictional limit but expressly includes ports on the outer continental shelf. 33 U.S.C. § 1501(a)(6); see also 13 U.S.C. § 1502(9)(a) (uses consistent with the Act’s purpose include "transportation of oil or natural gas from the United States outer continental shelf."); 33 U.S.C. § 1504(h)(3); 33 U.S.C. § 1520; 33 C.F.R. § 148.5; 49 C.F.R.§ 1.53(a)(3). The DWPA also references the high seas in that deepwater ports should not "interfere with international navigation or other reasonable uses of the high seas, as defined by treaty, convention, or customary international law." See see also S. REP. NO. 93–1217 at 7535 ("However, the freedom of all nations to make reasonable use of waters beyond territorial boundaries is recognized by the International Convention on the High Seas.").

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

  • Deepwater Port Act of 1974, 33 U.S.C. §§ 1501–1524 (2006), as amended
  • 33 C.F.R. § 148–50 (2006)
  • 49 C.F.R. § 1.53(a)(3) (2006) (relating to the Secretary of Transportation’s authority under the Deepwater Port Act to regulate pipelines on the Outer Continental Shelf)
  • Interagency MOU Related to the Licensing of Deepwater Ports (May 20, 2004).
  • Chevron U.S.A., Inc. v. Hammond, 726 F.2d 483, 489 n.7 (9th Cir. 1984) (noting that the Coast Guard is in charge of deepwater ports outside of the three nautical-mile limit, but that states have specific veto over new licenses)
  • S. REP. NO. 93–1217, at 7571, 7606 (1974), reprinted in 1974 U.S.C.C.A.N. 7529 (noting that since the authority of several federal agencies regarding the Outer Continental Shelf is consolidated in the deepwater port application process, NEPA requirements applicable to the authorities should also be consolidated; discussing NOAA’s interest in encouraging deepwater port construction that would "ensure adequate regard for and balancing of both onshore and offshore environmental effects;" discussing the role of NOAA’s ocean and scientific expertise in minimizing environmental hazards from port construction)
  • Hearing on Renewable Energy Opportunities and Issues on the Outer Continental Shelf before the Subcommittee on Fisheries, Wildlife, and Oceans of the H. Comm. on Natural Resources, 110th Cong. (2007) (written statement of Timothy Keeney, Deputy Assistant Secretary for Oceans and Atmosphere, NOAA) (discussing NOAA’s regulatory responsibilities under DWPA to, among other things, help mitigate potential effects on protected species and resources).
  • U.S. Dep’t of Transp. Mar. Admin., Deepwater Port Licensing Program: About the Deepwater Port Act.
  • U.S. Dep’t of Transp. Mar. Admin., Deepwater Ports Map
Endangered Right whale and calf.
Photo 87: Endangered Right whale and calf.
(NOAA, Alaska Fisheries Science Center)

Endangered Species Act (ESA), 16 U.S.C. §§ 1531-1544

The Endangered Species Act (ESA) specifically prohibits takings on the high seas by persons and vessels that are subject to U.S. jurisdiction. NOAA applies the takings and permitting provisions of the ESA to U.S. citizens and U.S. vessels on the high seas, including in foreign EEZs.

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

  • Endangered Species Act, 16 U.S.C. §§ 1531 et seq.
  • Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) (U.S. Supreme Court did not reach the issue of whether the ESA § 7 consultation provisions – requiring that federal agencies consult on activities that could impact endangered species or their critical habitat – applied in the territories of foreign nations; however, Justice Stevens, concurring, opined that the ESA § 7 consultation provisions do not apply in foreign nations).

Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. §§ 1801-1882

The Magnuson-Stevens Fishery Conservation and Management Act (MSA) is the primary law governing marine fisheries management in United States federal waters. Courts have held that the extraterritorial application of the MSA is based on the explicit language of the statute.

16 U.S.C. § 1811(b) provides that "The United States claims, and will exercise in the manner provided for in this Act, exclusive fishery management authority over the following:

(1) All anadromous species throughout the migratory range of each such species beyond the exclusive economic zone; except that the management authority does not extend to any such species during the time they are found within any waters of a foreign nation.
(2) All Continental Shelf fishery resources beyond the exclusive economic zone."

16 U.S.C. § 1802(11) defines "exclusive economic zone as "the zone established by Proclamation Numbered 5030, dated March 10, 1983."

16 U.S.C. § 1802(7) defines "Continental Shelf fishery resources" to encompass specific enumerated species of coral, crab, lobster, abalone, conch, claim and sponge. See also 50 C.F.R. § 600.10.

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

Marine Mammal Protection Act (MMPA), 16 U.S.C. §§ 1361-1423h

The Marine Mammal Protection Act (MMPA) contains express language applying it to takings by U.S. persons and U.S. vessels within and outside the territorial limits of the United States. NOAA has consistently interpreted the MMPA as applicable to U.S. vessels and citizens throughout the high seas, including foreign EEZs, as reflected in Congressional and other correspondence, enforcement actions against U.S. citizens, and international agreements that rely upon jurisdiction over U.S. vessels and citizens in foreign EEZs.

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

  • Marine Mammal Protection Act, 16 U.S.C. §§ 1361 et seq.
  • U.S. v. Mitchell, 553 F.2d 996 (5th Cir. 1977) (holding that the MMPA applies to takings by U.S. persons and U.S. vessels on the high seas, including the high seas up to the seaward limit of the territorial waters of foreign nations).
  • Presidential Proclamation No. 5030, 3 C.F.R. 22 (1983), reprinted in 16 U.S.C. 1453 (proclaims the sovereign rights and jurisdiction of the U.S. within an EEZ extending up to 200 nautical miles from the baseline, including with respect to protection and preservation of the marine environment).

Migratory Bird Treaty Act (MBTA), 16 U.S.C. §§ 701-719c

The purpose of the Migratory Bird Treaty Act (MBTA) is to protect migratory birds and their habitat during the time that the birds are within the United States. The MBTA is silent as to its geographic scope although the U.S. Department of the Interior has previously claimed that the Act applies to the seaward limit of the U.S. EEZ.

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

National Environmental Policy Act, 42 U.S.C. §§ 4321-4370f

Two primary purposes of NEPA are "[t]o declare a national policy which will encourage productive and enjoyable harmony between man and his environment; [and] to promote efforts which will prevent or eliminate damage to the environment . . . ." (42 U.S.C. § 4321). The Federal Government is responsible for using "all practicable means, consistent with . . . national policy, to improve and coordinate Federal plans, functions, programs and resources" to fulfill responsibilities under this policy. (42 U.S.C. § 4331(b)). Congress directed that all Federal agencies "shall . . . recognize the worldwide and long-range character of environmental problems and, where consistent with the foreign policy of the United States, lend appropriate support to initiatives, resolutions, and programs designed to maximize international cooperation in anticipating and preventing a decline in the quality of mankind’s world environment . . . ." (42 U.S.C. §4332(F)).

The application of NEPA beyond U.S. territory has often been litigated in the federal courts. The key issue is in such cases is whether there are substantial environmental effects within U.S. territory. Where the effects are primarily found to be within the territory of a foreign country or would not affect existing U.S. treaty rights, courts generally have held that NEPA does not apply. A factor considered by some courts is whether the decision that led to the environmental effects was made within the territory of the U.S. Notably, the Circuit Court of Appeals for the D.C. Circuit has held "that the presumption against the extraterritorial application of statutes . . . does not apply where the conduct regulated by statute occurs primarily, if not exclusively, in the United States, and the alleged extraterritorial effect of the statute will be felt in . . . a continent without a sovereign, and an area over which the United States has a great measure of legislative control" (e.g., Antarctica). Environmental Defense Fund Inc. v. Massey, 986 F.2d 528 (D.C. Cir. 1993).

NOAA’s policy on the extraterritorial application of NEPA is to apply NEPA both within and beyond the U.S. Exclusive Economic Zone (EEZ). NOAA Administrative Order (NAO) 216-6, Environmental Review Procedures for Implementing the National Environmental Policy Act (May 20, 1999), sections 3.01 and 7.01.

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

  • NEPA Statute, as amended, 42 U.S.C. § 4321-4347
  • Executive Order 12114, Environmental Effects Abroad of Major Federal Actions (44 Fed. Reg. 1957 (Jan. 9, 1979)) (requires federal agencies to publish procedures for assessing the impacts of federal actions in the global commons and foreign nations. The requirements are not as rigorous as those under NEPA and there is less opportunity for public comment. The Executive Order was issued "in furtherance of NEPA" but is independent of NEPA and creates no cause of action).
  • Council on Environmental Quality, Implementing and Explanatory Guidance for Executive Order 12114 (44 Fed. Reg. 18722 (Mar. 29, 1979))
  • Council on Environmental Quality, Guidance on NEPA Analyses for Transboundary Impacts (July 1, 1997)(requires federal agencies to analyze the "reasonably foreseeable transboundary effects" in their analysis of proposed federal actions).
  • Council on Environmental Quality, NEPANET home page
  • Department of Commerce Administrative Order (DAO) 216-12. Environmental Effects Abroad of Major Federal Actions (March 10, 1983) (prescribes U.S. Department of Commerce policy, procedures and responsibilities for implementing Executive Order 12114.
  • NOAA NEPA web pages (including NOAA’s NEPA Handbook)
  • Swinomish Tribal Community v. Federal Energy Regulatory Commission, 627 F.2d 499, 511 (D.C. Cir. 1980) (allowing Canadian plaintiffs to intervene in a case challenging the sufficiency of an environmental impact statement for a proposed dam alteration that would have an impact in Canada).
  • Natural Resources Defense Council (NRDC) v. Nuclear Regulatory Commission, 647 F.2d 1345 (D.C. Cir. 1981) (finding that NEPA does not impose an environmental impact state requirement on nuclear export decisions with respect to impacts falling exclusively within foreign jurisdictions).
  • NEPA Coalition of Japan v. Aspin, 837 F. Supp. 466 (D.D.C. 1993) (holding that NEPA did not apply to require Department of Defense to prepare environmental impact studies for United States military installations in Japan).
  • Greenpeace v. Stone, 748 F. Supp. 749 (D. Hi. 1990) (holding that NEPA does not apply to movements of munitions through and within West Germany pursuant to a presidential agreement because such application would have grave foreign policy implications), appeal dismissed, Greenpeace v. Stone, 924 F.2d 175 (9th Cir. 1991).
  • Environmental Defense Fund Inc. v. Massey, 986 F.2d 528 (D.C. Cir. 1993) (holding that the presumption against extraterritorial application of NEPA does not apply to the National Science Foundation’s actions in Antarctica because the alleged extraterritorial effects of the statute will be felt in a continent without a sovereign, and in an area over which the United States has a great measure of legislative control).
  • Hirt v. Richardson, 127 F. Supp. 2d 833 (W.D. Mich. 1999) (holding that NEPA would apply extraterritorially to a Russian shipment passing near the U.S. border because the shipment was under the control of the U.S. government and it may have domestic impact).
  • NRDC v. U.S. Dept. of Navy, No. CV-01-07781 CAS (RZX), 2002 WL 32095131 (C.D. Cal. 2002) (holding that the presumption against extraterritorial application of U.S. statutes did not bar extraterritorial application of NEPA to Navy sonar sea tests affecting the U.S. Exclusive Economic Zone).
  • Center for Biological Diversity v. National Science Foundation, No. 02-5065, 2002 WL 31548073 (N.D. Cal 2002) (applying NEPA to acoustical research being conducted by the National Science Foundation in the Gulf of California that had potential effects on Mexico’s Exclusive Economic Zone).
  • Born Free U.S.A. v. Norton, 278 F. Supp. 2d 5 (D.D.C. 2003) (refusing to apply NEPA extraterritorially in cases involving importation of elephants from a foreign state), vacated, No. 03-5216, 2004 WL 180263 (D.C. Cir. 2004).
  • Border Power Plant Working Group v. Department of Energy, 260 F. Supp. 2d 997 (S.D. Cal. 2003) (holding that NEPA requires assessment of effects in the United States of power plants built in Mexico).
    • Basel Action Network v. Maritime Administration, 370 F. Supp. 2d 57 (D.D.C. 2005) (holding that NEPA does not apply beyond U.S. territorial waters on the high seas where the United States does not have legislative control).
  • Consejo de Desarrollo Economico de Mexicali, 438 F. Supp. 2d 1207 (D. Nev. 2006) (holding that although the agency action at issue will occur in the United States, NEPA does not apply to the impacts that will be felt in Mexico, a sovereign nation over which Congress lacks legislative control), vacated, 482 F.3d 1157 (9th Cir. 2007) (holding that NEPA actions were moot, but due to circumstances specific to this case, vacated on other grounds). Available for download.
  • Friends of the Earth v. Mosbacher, 488 F. Supp. 2d 889 (N.D. Cal. 2007) (holding that the environmental group’s claims did not involve extraterritorial application of NEPA because the federal agencies’ projects located in foreign countries affected the U.S. domestic environment). Available for download.

National Historic Preservation Act (NHPA), 16 U.S.C. §§ 470a–470a-2

The National Historic Preservation Act sets forth the national policy for the preservation of historic properties in the United States (Section 106) and abroad (Section 402). Section 106, 16 U.S.C. § 470, requires federal agencies to consider the effects of their undertakings on historic properties in the United States, including the Outer Continental Shelf and the Exclusive Economic Zone. Under Section 110, federal agencies are to establish historic preservation programs to survey and identify historic properties and nominate them for listing on the National Register of Historic Places.

Section 402 (16 U.S.C § 470a-2) requires that federal undertakings outside of the United States take into account adverse effects on sites inscribed on the World Heritage List or on the foreign nation’s equivalent of the National Register for the purpose of avoiding or mitigating adverse effects. Congress added this provision to the NHPA in 1980 to govern federal undertakings outside the United States. The seminal cases interpreting § 402 are the Dugong cases.

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

  • The National Historic Preservation Act, 16 U.S.C. §§ 470a-470a-2.
  • Secretary of the Interior’s Standards and Guidelines for Federal Agency Historic Preservation Programs Pursuant to the National Historic Preservation Act, 63 Fed. Reg. 20496 (April 24, 1998) (discusses the implications of Section 402 when carrying out work that could impact foreign historic properties and connects the implementation of Section 402 to Executive Order 12114).
  • Dugong v. Rumsfeld, 2005 WL 522106 (N.D. Cal. 2005) (noting that unlike NEPA, the NHPA explicitly demonstrates Congress’s intent that it apply abroad).
  • Okinawa Dugong v. Gates, 543 F. Supp. 2d 1082 (N.D. Cal. 2008) (holding that the NHPA applies extraterritorially through section 402 and therefore requires the Department of Defense to consider the impacts of a proposed facility on the dugong, a species of large marine mammal related to manatees).
Coral reef.
Photo 76: Coral Reefs
(NOAA Photo Library)

NATIONAL MARINE SANCTUARIES ACT (NMSA), 16 U.S.C. §§ 1431 et seq.

The National Marine Sanctuaries Act authorizes the Secretary of Commerce to designate and protect areas of the marine environment with special national significance due to their conservation, recreational, ecological, historical, scientific, cultural, archeological, educational, or esthetic qualities as national marine sanctuaries. The Act and its implementing regulations at 15 C.F.R. Part 922 safeguard resources within sanctuary boundaries and include prohibitions on the conduct of certain activities. The Act defines "marine environment" to include the Exclusive Economic Zone (EEZ) and specifically provides that it applies throughout the EEZ. 16 U.S.C. § 1432(3) and § 1437(k). NMSA also specifies that it is to be applied in accordance with generally recognized principles of international law, and in accordance with treaties, conventions, and other agreements to which the U.S. is a party. 16 U.S.C. § 1435(a) and § 1437(k).

Of the 13 current National Marine Sanctuaries, nine are located in whole or in part beyond the U.S. 12 nautical mile territorial sea. These nine national marine sanctuaries are the Cordell Bank National Marine Sanctuary (NMS), the Florida Keys NMS, the Flower Garden Banks NMS, the Gray’s Reef NMS, the Hawaiian Islands Humpback Whale NMS, the Monitor NMS, the Monterey Bay NMS, the Olympic Coast NMS, and the Stellwagen Bank NMS. Only the Channel Islands NMS, the Fagatele Bay NMS, and the Gulf of the Farallones NMS are entirely within the U.S. territorial sea. Thunder Bay NMS is located entirely within U.S. internal waters (Lake Huron).

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

  • National Marine Sanctuaries Act, 16 U.S.C. §§ 1431 et seq.
  • In the Matter of: Tsangeos Panagiotis Seagroup, Inc. Elmini Laurel, Respondents, Docket Nos. 755-051, 755-052, 755-053, 5 O.R.W. 392, 1988 WL 248037 (Nov. 17, 1988) (ALJ decision and $25,000 civil penalty assessment against owner and operator of a Greek flagged vessel that struck and damaged a coral reef in Key Largo National Marine Sanctuary located beyond the U.S. Territorial Sea), order denying discretionary review, 5 O.R.W. 475, 1989 WL 265333 (March 15, 1989) (Under Secretary of Commerce for Oceans and Atmosphere William E. Evans affirming ALJ decision and explicitly rejecting respondent’s arguments that (i) the NMSA cannot be applied to foreign vessels or citizens on the basis of customary international law alone and (ii) that there is no recognized basis for protecting coral against foreign vesels beyond the U.S. Territorial Sea).
  • U.S. Government’s Closing Argument and Proposed Findings of Fact in Tsangeos Panagiotis Seagroup case (May 27, 1988).

NONINDIGENOUS AQUATIC NUISANCE PREVENTION AND CONTROL ACT OF 1990 (NANPCA), as amended by National Invasive Species Act of 1996 (NISA), 16 U.S.C. §§ 4701-4751

The Nonindigenous Aquatic Nuisance Prevention and Control Act (NANPCA), as amended by the National Invasive Species Act (NISA), contains regulations intended to minimize and eliminate the introduction of aquatic invasive species, including regulations of ship ballast water disposal and exchanges. (16 U.S.C. § 4701(b)). The jurisdiction of NANPCA was originally limited to those ships entering the Great Lakes and the Hudson River after operating on waters beyond the Exclusive Economic Zone (EEZ), but the NISA amendments broadened the jurisdiction to all ships entering all waters of the United States after operating beyond the U.S. EEZ. The Act is therefore is chiefly concerned with and applies to areas beyond the EEZ, depending on if the vessel is headed to a U.S. port, and depending on how it has treated its ballast water (e.g., exchanging the water beyond the U.S. EEZ, or retaining the ballast water completely).

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

Ship exhaust.
Photo 77: Ship exhaust.
(EPA Photo Library)

OCEAN DUMPING ACT (ODA), 33 U.S.C. §§ 1401 et seq.

Title I of the Marine Protection, Research, and Sanctuaries Act of 1972, known as the Ocean Dumping Act (ODA), provides for the regulation of the ocean disposal of wastes by persons or vessels within U.S. jurisdiction. The ODA established a permitting program administered by the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers to regulate intentional disposal or dumping of all materials into ocean waters. Ocean waters are defined as waters of the open sea lying seaward of the baseline from which the territorial sea is measured. (33 U.S.C. § 1402(b)).

The ODA extends to all the world’s oceans so long as the waste originates in the United States, or is transported by a U.S.-registered vessel. (33 U.S.C. § 1411(a)). In 1993, the dumping of toxic ash into the Indian Ocean from an incinerator in Philadelphia, Pennsylvania, by the vessel KHIAN SEA led to the conviction of the Vice-President of Coastal Carriers Corporation, the operator of the KHIAN SEA. Even though the ship was registered in Liberia, the fact that the waste originated within the United States provided jurisdiction. United States v. Reilly, 33 F.3d 1396, 1402-03 (3d Cir. 1994). If the waste originates outside of the United States and a foreign-flagged ship is utilized, this statute only applies within the territorial sea and the contiguous zone if the deposit of waste in those waters may affect the territorial sea or territory of the United States. (33 U.S.C. § 1411(b)).

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

OIL POLLUTION ACT OF 1990 (OPA), 33 U.S.C. §§ 2701 et seq.

The Oil Pollution Act of 1990 (OPA) was passed in the wake of the 1989 Exxon Valdez oil spill in Prince William Sound. It is the principal statute governing oil spills in the nation’s waterways. OPA establishes liability and limitations on liability for the parties responsible for damages resulting from oil spills, requires oil storage facilities and vessels to submit to the federal government plans detailing how they will respond to large discharges, and sets up an Oil Spill Liability Trust Fund to pay compensation when the responsible parties are unable or unwilling to do so.

The seaward limit of OPA is coextensive with the outer limit of the 200 nautical mile exclusive economic zone (EEZ) of the United States. The language of OPA establishes liability for damages for parties responsible for such vessels or facilities from which oil is discharged "into or upon the navigable waters or adjoining shorelines or the exclusive economic zone" (33 U.S.C. § 2702). Thus, OPA applies in the EEZ of the United States. Further, liability for damages extends to natural resources associated with the extended continental shelf, beyond the 200 nautical mile limit of the EEZ. OPA provides that "all removal costs incurred by the United States Government or any State or local official or agency in connection with a discharge or substantial threat of a discharge of oil from any Outer Continental Shelf facility or a vessel carrying oil as cargo from such a facility shall be borne by the owner or operator of such facility or vessel" (33 U.S.C. § 2704(c)(3)). Such damages in or associated with the continental shelf are excluded from the defenses and limitations on damages defined in OPA, underscoring that OPA applies to the continental shelf (33 U.S.C. § 2704(c)(3)).

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

OUTER CONTINENTAL SHELF LANDS ACT OF 1953 (OCSLA), 43 U.S.C. §§ 1331-1356

The Outer Continental Shelf Lands Act of 1953 (OCSLA) codified the Truman Proclamation of 1945. Under OCSLA,"the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition . . . ." (43 U.S.C. § 1332(1)). "The term ‘outer Continental Shelf’ means all submerged lands lying seaward and outside of the area of lands beneath navigable waters . . . and of which the subsoil and seabed appertain to the United States . . . ." (43 U.S.C. § 1331(a)). OCSLA provides for the "expeditious and orderly development [of the outer Continental Shelf], subject to environmental safeguards, in a manner which is consistent with the maintenance of competition and other national needs." (43 U.S.C. § 1332(3)).

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

  • Outer Continental Shelf Lands Act, as amended, 43 U.S.C. §§ 1331-1356
  • Presidential Proclamation 2667 (Truman Proclamation, Sept. 28, 1945), Policy of the United States with Respect to the Natural Resources of the Subsoil and Sea Bed of the Continental Shelf (10 Fed. Reg. 12305 (1945)). President Truman proclaimed that the natural resources of the subsoil and seabed of the U.S. continental shelf beneath the high seas but contiguous to U.S. coasts are subject to national jurisdiction and control.
  • White House Press Release, "Proclamations Concerning U.S. Jurisdiction Over Natural Resources of Coastal Areas and High Seas," 13 Dep’t State Bull. 484 (1945).
  • Geneva Convention on the Continental Shelf, signed by the United States on April 29, 1958 and entered into force on June 10, 1964. The Convention was the product of the United Nations Conference on the Law of the Sea convened at Geneva in 1958 and was the result of eight years of work by the International Law Commission. The Convention became effective as law in the U.S. eleven years after the passage of OCSLA and superseded any incompatible terminology in OCSLA. Article 2 states "[t]he coastal state [nation] exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources." The Fifth Circuit in United States v. Ray stated, in dictum, "there is nothing in the pertinent language of the Geneva Convention on the Continental Shelf which detracts from or is inconsistent with the [OCSLA]." 423 F.2d 16, 21 (5th Cir. 1970).
  • U.S. Bureau of Ocean Management, Research and Enforcement (BOEM), OCSLA History.
  • North Sea Continental Shelf case (I.C.J. Reports 1969, p. 22, para. 19) ("[W]ith what the Court entertains no doubt is the most fundamental of all the rules of law relating to the continental shelf . . . namely that the rights of the coastal State in respect of the area of continental shelf that constitutes a natural prolongation of its land territory into and under the sea exist ipso facto and ab initio, by virtue of its sovereignty over the land, and as an extension of it in an exercise of sovereign rights for the purpose of exploring the seabed and exploiting its natural resources. In short, there is here an inherent right . . . . Furthermore, the right does not depend on its being exercised. To echo the language of the Geneva Convention, it is "exclusive" in the sense that if the coastal State does not choose to explore or exploit the areas of shelf appertaining to it, that is its own affair, but no one else may do so without its express consent.")
  • Treasure Salvors, Inc. v. the Unidentified Wrecked and Abandoned Sailing Vessel Believed to be the Nuestra Señora de Atocha, 569 F.2d 330, 339 (5th Cir. 1978) (stating "the property of the wreck involved in this case is neither within the jurisdiction of the United States nor owned and controlled by our government;" the Court thus rejected the application of the Abandoned Property Act and the Antiquities Act. The Court also stated that "an extension of jurisdiction for purposes of controlling the exploitation of the natural resources of the continental shelf is not necessarily an extension of sovereignty.") This case supports the view that OCSLA only extends federal control over the outer continental shelf for purposes of exploration and exploitation of natural resources and establishes that abandoned shipwrecks found on the OCS are governed by the traditional law of salvage, except where there is a specific preservation law or permitting regime that can be used to protect submerged cultural resources.
  • The International Law Commission, referring to the 1958 Convention on the Continental Shelf, stated "It is clearly understood that the rights [of the coastal State] do not cover objects such as wrecked ships and their cargoes (including bullion) lying on the seabed or covered by the sand of the subsoil." Report of the International Law Commission, ii U.N. GAOR Supp. (No. 9) at 298, U.N. Doc. A/3159 (1956).

Ports and Waterways Safety Act of 1972 (PWSA), 33 U.S.C. §§ 1221-1236

The Ports and Waterways Safety Act of 1972 (PWSA) was enacted to promote navigation, vessel safety, and protection of the marine environment. 33 U.S.C. § 1221. The Act authorizes the United States Coast Guard (USCG) to take measures necessary for safeguarding and securing maritime activities. PWSA grants authority to, inter alia: establish vessel traffic services and separation schemes; require installation and use of specified navigation and communications equipment; require receipt of prearrival messages; establish water or waterfront safety zones; and issue operation or anchoring orders to specific vessels. 33 U.S.C. §§ 1223-1225.

Applicability of PWSA varies with its granted authorities. The USCG’s authority to issue orders directed to a specific vessel is applicable to any vessel in a port or place subject to the jurisdiction of the United States, or in the navigable waters of the United States, 33 U.S.C. § 1223(b); whereas, the requirement for receipt of prearrival messages may apply to any vessel destined for a port or place subject to U.S. jurisdiction, 33 U.S.C. § 1223(a)(5). Vessel traffic services—reporting and operating requirements, routing systems, etc. — may be established in ports or places under U.S. jurisdiction, in navigable waters of the U.S., or in an area covered by international agreement. 33 U.S.C. § 1223(a)(1). Additionally, the designation of necessary fairways and traffic separation schemes shall be applicable to vessels operating in the U.S. territorial sea as well as to vessels in high seas approaches to U.S. ports or places which originate outside the territorial sea. 33. U.S.C. §1223(c)(1). Ship routing measures that are located entirely outside the U.S territorial sea or that cross into the U.S. territorial sea must also be approved by the International Maritime Organization. 33. U.S.C. § 1230. Prior to making such a designation, however, the USCG must consult with the Secretaries of Commerce, State, Interior, and Army, as well as with the Governors of any affected States, to consider other uses of the proposed area. Once designated, PWSA authorizes the USCG, to the extent reasonable and necessary for the purpose of the designation, to make the use of such fairways and traffic separation schemes mandatory for specific types and sizes of foreign and domestic vessels operating in the U.S. territorial sea, as well as for specific types and sizes of U.S. vessels operating in the high seas beyond the U.S. territorial sea. 33 U.S.C. § 1223(c). The USCG may investigate any incident, accident, or act involving the loss or destruction of, or damage to, any structure subject to PWSA, or which affects or may affect the safety or environmental quality of the ports, harbors, or navigable waters of the United States. 33 U.S.C. § 1227. For applicability of discrete measures taken pursuant to the authorities above, please see the USCG Regulations promulgated under PWSA, available through the link provided below.

PWSA does not apply to the Panama Canal nor does it apply to foreign vessels either in innocent passage through the U.S. territorial sea or through navigable waters of the U.S. which form part of an international straight, so long as the vessel is not destined for, or departing from, a port or place subject to the jurisdiction of the U.S. (except pursuant to international treaty, convention, or agreement, 33 C.F.R. 160.103(c)). 33 U.S.C. § 1223(d).

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

NOAA OFFICE OF GENERAL COUNSEL – PHOTO CREDITS
SEARCH GOVERNMENT SITES at USA.GOV
NOAA Privacy Policy | NOAA Disclaimer | NOAA FOIA | NOAA Information Quality | NOAA Strategic Plan
DOC Privacy Policy | DOC FOIA | DOC Information Quality | Fair Act | ESR System | No FEAR Act | White House
Updated: June 14, 2013 10:36 AM7 9:41 AM