|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
|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|
|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.
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.
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).
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.
Photo 74: Coast Guard at-sea boarding.
(Coast Guard web site)
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).
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 â€˜"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).
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).
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.
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. See, e.g., EPA, Issuance of Final General NPDES Permit for Portions of Deep Seabed Mining- Exploration Activities in the Pacific Ocean, 49 FR 39,442 (Oct. 5, 1984).
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. 93â€“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.").
Photo 87: Endangered Right whale and calf. (NOAA, Alaska Fisheries Science Center)
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.
Section 7 of the Rivers and Harbors Appropriations Act of 1915 is the basis for the establishment of anchorage grounds. It was codified in 33 U.S.C. § 471. The authority conferred by this statute was transferred to and vested in the Secretary of Homeland Security by section 902(j) of the Coast Guard and Maritime Transportation Act of 2006. This was later amended, most recently by Section 301 of the Coast Guard Authorization Act of 2010. It authorizes the Secretary of Homeland Security to define and establish anchorage grounds for vessels in all harbors, rivers, bays, and navigable waters of the United States. The U.S. Coast Guard acting under the direction of the Secretary of Homeland Security is charged with enforcement. Any violation of such rules is liable for a penalty of up to $10,000. Each day during which a violation continues constitutes a separate violation.
33 U.S.C. § 472 directs the Commandant of the Coast Guard to provide and maintain suitable markings of anchorage grounds as so defined in § 471. 33 U.S.C. § 474 authorizes the Commandant of the Coast Guard to define and establish anchorage grounds in Saint Marys River. 33 U.S.C. § 475 authorizes the Secretary of the Navy to define and establish anchorage grounds in Pearl Harbor. 33 U.S.C. § 476 specifically restricts tanker traffic in Puget Sound and its adjacent waters.
The seaward limit of the authority to establish anchorage grounds is coextensive with the outer limit of the territorial sea of the United States. The language of 33 U.S.C. § 471 specifically lists this authority as including “all harbors, rivers, bays, and other navigable waters of the United States” and defines “navigable waters of the United States” to include “all waters of the territorial sea of the United States as described in Presidential Proclamation No. 5928 of December 27, 1988.” Presidential Proclamation No. 5928 defines the territorial sea of the United States as extending “to 12 nautical miles from the baselines of the United States determined in accordance with international law.”
Additional reference information:
The Fur Seal Act’s ban on pelagic sealing applies both “on lands or waters under the jurisdiction of the United States,” 16 U.S.C. § 1152, and in “the waters of the Pacific Ocean north of the thirtieth parallel of north latitude, including the Bering, Okhotsk, and Japan Seas,” id. § 1151(g). To this end, the Act extends the United States’ enforcement jurisdiction extraterritorially. It provides that parties to the Convention, including the United States, may “board and search” a treaty party-flagged ship on the high seas that is “outfitted for the harvesting of living marine resources” if there exists “reasonable cause to believe” that the ship has violated the Convention’s pelagic sealing ban. Id. § 1156(a). The Act further provides that parties to the Convention, including the United States, enjoy enforcement authority with respect to the Convention’s proscription on pelagic sealing within their exclusive economic zones (“EEZs”)—though parties cannot enforce the Convention within other states’ EEZs. See 16 U.S.C. § 1156(a) (prohibiting Fur Seal Convention parties’ enforcement of the pelagic sealing ban “within the areas in which another State exercises fisheries jurisdiction”).
With the Fur Seal Convention’s expiration in 1984, the United States no longer possesses the authority under international law to conduct extraterritorial inspections of foreign-flagged vessels suspected of pelagic sealing activities, and foreign-flagged vessels’ extraterritorial inspection of U.S. ships suspected of sealing would be similarly unauthorized. The Fur Seal Act’s enabling of the United States’ inspection of U.S.-flagged vessels on the high seas and within the U.S. EEZ likely remains valid, however.
Finally, the Fur Seal Act also reaches extraterritorial pelagic sealing activity by barring the “use [of] any port or harbor or other place under the jurisdiction of the United States for any purpose connected in any way with [pelagic sealing.]” 16 U.S.C. § 1152. It further bars the transport, importation, sale, or possession of “fur seals or the parts thereof” at “any port or place or on any vessel, subject to the jurisdiction of the United States[.]” Id.
Additional reference information:
The Historic Sites, Buildings, and Antiquities Act (HSA) of 1935 declared it "national policy to preserve for public use historic sites, buildings, and objects of national significance for the inspiration and benefit of the people of the United States." 16 U.S.C. § 461. The HSA authorizes the National Park Service to collect data, inventory both publicly and privately held sites, erect and maintain commemorative tablets, and operate and maintain suitable properties for the benefit of the public. 16 U.S.C. § 463(a). This led to establishment of the National Historic Landmarks Program in 1960 under which the Secretary of the Interior may grant historic buildings, sites, structures, objects or districts representing an outstanding aspect of American history and culture National Historic Landmark status. See, e.g., Barry Mackintosh, The Historic Sites Survey and National Historic Landmarks Program: A History 41 (History Division, National Park Service 1985). In 1966, the National Historic Preservation Act greatly expanded the federal government’s role in historic preservation, and in the 1980 amendments to that Act, National Historic Landmarks were given explicit recognition in the National Register system. Pub. L. No. 96-515. In 1983, the National Park Service published updated regulations defining the National Historic Landmarks criteria and the procedures for considering new properties for inclusion as National Historic Landmarks. All properties designated as National Historic Landmarks are included in the National Register of Historic Places.
The Historic Site Act’s National Historic Landmark Program has been applied to historic sites and objects of national significance located on lands — including submerged lands outside of U.S. territory. For example, the American Legation, a U.S. owned building in Morocco, was listed on the National Register in 1981 and designated a National Historic Landmark in 1983.
Pursuant to the Historic Sites Act as amended in 1976, the Secretary of the Interior is authorized to designate properties on the Outer Continental Shelf as National Historic and National Natural Landmarks. See 87 Interior Dec. 593, 601, 1980 WL 104199, 8 (Nov. 24, 1980). Seven National Historic Landmarks are underwater cultural heritage sites. These include the Truk Lagoon Underwater Fleet (Truk Atoll, Micronesia submerged lands outside of the United States, added to the National Register in 1976, designated a National Historic Landmark in 1985), U.S.S. Monitor (shipwreck located on the U.S. outer continental shelf 17 miles from shore and beyond the U.S. territorial sea when added to the National Register in 1974; designated a National Historic Landmark in 1987), U.S.S. Arizona (shipwreck located on State of Hawaii submerged lands, added to the National Register in 1966 and designated a National Historic Landmark in 1989), U.S.S. Utah (shipwreck located on State of Hawaii submerged lands, added to the National Register and designated a National Historic Landmark in 1989), Maple Leaf (shipwreck located in a Florida riverbed, added to the National Register and designated National Historic Landmark in 1994), Antonio Lopez (shipwreck located on Puerto Rico submerged lands, added to the National Register in 1994 and designated a National Historic Landmark in 1997), and Radeau Land Tortoise (shipwreck located at bottom of Lake George in New York State, added to the National Register in 1995 and designated a National Historic Landmark in 1998).
The Longshore and Harbor Workers’ Compensation Act (LHWCA) was first enacted in 1927. It is a statutory workers’ compensation scheme that provides compensation for injured harbor workers. To qualify for coverage, the injury or death to the worker must occur on the “navigable waters of the United States.” 33 U.S.C. §903(a).
Courts have held that in the context of the LHWCA, the term navigable waters of the United States include workers injured on the high seas. The Second Circuit held that there were two reasons why the LHWCA’s coverage is extended past territorial application and to the high seas: (1) the administration section of the LHWCA, located in section 39, provides for the establishment of compensation districts that cover the high seas and, therefore, expressly contemplates coverage of injuries sustained on the high seas and (2) Congress' overriding purpose in enacting the LHWCA was to provide consistent workers' compensation coverage to eligible longshore and harbor workers, a goal that would be frustrated by limiting the LHWCA to territorial application.
Although the LHWCA does apply to the high seas, courts are not willing to extend coverage to foreign territorial seas. Thus, a worker injured in foreign territorial waters does not qualify for coverage under the LHCWA.
Additional Reference Information:
Kollias v. D & G Marine Maint. 29 F.3d 67 (2d Circ. 1994)
Cove Tankers Corp. v. United Ship Repair, Inc. 683 F.2d 38, 41 (2d Cir. 1982)
Keller Found./Case Found. v. Tracy 696 F.3d 835, 843 (9th Cir. 2012)
Saipan Stevedore Co. Inc. v. Dir., Off. of Workers' Compen. Programs 133 F.3d 717, 723 (9th Cir. 1998)
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:
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.
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.
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.
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:
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. There are over 89,000 properties listed on the National Register, including almost 600 historic vessels and shipwrecks. To date there are 23 shipwrecks, a sunken airship, 5 lighthouses, and a native Hawaiian fish pond on the National Register in National Marine Sanctuaries. A number of these properties are located on the OCS and a couple are located outside the United States. See Tables.
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.
Photo 76: Coral Reefs
(NOAA Photo Library)
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).
Enacted in 1990, the Native American Graves Protection and Repatriation Act (NAGPRA) provides for the disposition to affiliated lineal descendants, Indian tribes, and Native Hawaiian organizations of Native American cultural items removed from Federal or tribal lands after November 16, 1990, and for the repatriation or transfer of control to these parties of such items in holdings or collections of federal agencies and federally funded institutions NAGPRA also establishes procedures for addressing the inadvertent discovery or planned excavation of Native American cultural items on federal or tribal lands. After November 16, 1990, the intentional excavation or removal of cultural items from federal lands may occur only after consultation with the appropriate (if any) Indian tribe or Native Hawaiian organization has been demonstrated, and in the case of tribal land, only after the consent of the tribe or organization has been obtained. Furthermore, such excavation or removal is governed by the permitting requirements under the Archaeological Resources Protection Act, 16 U.S.C. § 470aa-mm. An additional section of NAGPRA (codified at 18 U.S.C. 1170) criminalizes the knowing use for profit of Native American human remains without the right of possession, regardless of their provenience, along with the knowing use for profit of any NAGPRA-protected cultural item obtained in violation of the Act.
Indian tribes are defined as tribes, groups or communities recognized as eligible for special programs and services provided by the United States because of their status as Indians. Native Hawaiian organizations are defined as organizations that serve and represent the interests of Native Hawaiians, have as a primary and stated purpose the provision of services to Native Hawaiians, and have expertise in Native Hawaiian affairs. Native American cultural items are defined as human remains, funerary objects, sacred objects and objects of cultural patrimony. Under NAGPRA, Federal agencies and federally funded institutions having holdings or collections of cultural items must work with affiliated or potentially affiliated parties to determine the parties’ interest in the items. Upon a satisfactory request, these agencies and institutions must transfer control of the items to the requesting affiliated party.
Under NAGPRA, federal lands are defined as any land owned or controlled by the United States government other than tribal lands. Implementing regulations define lands “controlled” by the United States as lands not owned by the government, but lands in which the United States has “a legal interest sufficient to permit it to apply those regulations without abrogating the otherwise existing legal rights of a person.” 43 C.F.R. § 10.2(f)(1). The legal interest of the United States in the Outer Continental Shelf (OCS) is sufficient to trigger the application of NAGPRA. Section 5 of the Outer Continental Shelf Lands Act (OCSLA) gives the United States jurisdiction, control, and power of disposition over the subsoil and seabed of the OCS. 43 U.S.C. § 1331 et. seq. This authority to exercise control over the OCS has been interpreted as constituting a legal interest in the OCS by the United States. Furthermore, the meaning of “lands controlled by the United States” in NAGPRA is consistent with the meaning given by the Department of Justice to the same term appearing in the Antiquities Act, 16 U.S.C. 431-433. In an opinion by the Office of Legal Counsel, the United States had jurisdictional authority under the Antiquities Act to establish a National Monument on the OCS and within the Exclusive Economic Zone, in the area of the Northwestern Hawaiian Islands. Reasoning by analogy, the United States thus has jurisdictional authority to apply NAGPRA in the OCS, too.
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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).
Photo 77: Ship exhaust.
(EPA Photo Library)
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)).
The Ocean Thermal Energy Conversion Act of 1980 (OTEC), establishes a legal regime administered by NOAA to authorize and encourage the development of ocean thermal energy conversion, a technology that makes use of the temperature difference between surface and deep ocean waters to drive a heat engine and generate electricity. The Act also provides for the protection of the marine and coastal environment to prevent or minimize any adverse impact which might occur as a consequence of activities authorized under OTEC.
An OTEC unit can be mounted on a platform that is either fixed or moored to the ocean floor, in which case it is called a "facility." An OTEC unit can also be located on a vessel, in which case it is called a plantship. Under OTEC, no person or entity without a license issued by NOAA may construct, locate, own or operate an OTEC facility that is: (i) documented under the laws of the U.S., (ii) located in whole or in part between the high water mark and the seaward boundary of the 12 nm territorial sea, or (iii) connected by pipeline or cable to the United States. 42 U.S.C. § 9111(a). The Act also bars any citizen of the U.S. from operating an OTEC plantship wherever located except in accordance with a license issued by NOAA under the Act or pursuant to the laws of a foreign nation whose licenses are found by NOAA to be compatible with U.S. OTEC licenses. Id. The Act broadly defines "person" to mean "any individual (whether or not a citizen of the United States), any corporation, partnership, association, or other entity organized or existing under the laws of any nation, any Federal, State, local or foreign government or any entity of such government." 42 U.S.C. § 9102(14).
OTEC does not apply to facilities which the Secretary of Energy has designated demonstration projects for the development of alternative energy sources. 42 U.S.C. § 9126(b). See generally 42 U.S.C. §§ 9001-9009 (Ocean Thermal Energy Conversion Research and Development Act). OTEC also does not apply to test platforms that will not operate as OTEC facilities or plantships after the testing period. 42 U.S.C. § 9126(a).
In 1996, NOAA rescinded the OTEC regulations it had promulgated in 1981 because it had received no applications for the development of OTEC facilities in that 15-year period. In 1995, the U.S. Coast Guard removed regulations pertaining to OTEC plantships it had promulgated under 42 U.S.C. § 9118 for essentially the same reason. With interest in OTEC increasing, NOAA is rebuilding its OTEC licensing capacity.
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)).
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)).
The Plunder of Distressed Vessels Act, 18 U.S.C. § 1658, also known as the “Plunder Statute,” criminalizes the looting or destruction of a vessel that is wrecked, stranded, adrift, or in distress at sea. Section 1658(a). The Act further prohibits the “willful obstruct[ion of] the escape of any person endeavoring to save his life from” from such a vessel, and the “hold[ing] out or show[ing of] any false light [e.g., a beacon], or extinguish[ment of] any true light, with intent to bring any vessel sailing upon the sea into danger or distress[.]” Section 1658(b). The punishment for violation of these proscriptions is imprisonment from 10 years to life. Id.
The statute applies to “any . . . place within the admiralty and maritime jurisdiction of the United States[.]” Section 1658(a). Initially, the extent of this broad jurisdictional grant was interpreted inconsistently. For example, in United States v. Pitman, 27 F. Cas. 540 (D. Mass. 1852), the court held that the looting of a wrecked vessel on a foreign shore fell within the ambit of the Plunder Statute, and it upheld the punishment of a U.S. ship captain for taking treasure from a shipwreck on the shores of Sumatra (which was, at the time, a Dutch colony). A decade later, however, the court in United States v. Smiley, 27 F. Cas. 1132 (C.C.N.D. Cal. 1864) went to great lengths not to punish looters of a sunken U.S. steamship that lay within Mexican territorial waters. Although the Smiley court ultimately held that the 2-year-old wreck at issue was “abandoned” and, therefore, not covered by the Plunder Statute, it noted in dicta that “[w]hatever was . . . done with reference to [the] property [that was] once on board [the wrecked steamship] . . . was done out of the jurisdiction of the United States.” Id. at 1134.
Despite this early confusion in Plunder Statute jurisprudence, the geographic scope of the United States’ admiralty and maritime jurisdiction is now relatively well-settled. See generally David J. Bederman, Admiralty Jurisdiction, 31 J. Mar. L. & Com. 189 (2000) (providing an overview of the subject of federal admiralty jurisdiction, and suggesting that “the breadth and reach of that jurisdiction may no longer be the contentious issue it once was.”). Federal maritime and admiralty jurisdiction is understood simply to extend to the operation of vessels in navigable waters, and to acts involving or aboard U.S.-flagged vessels traveling thereupon. United States v. Flores, 289 U.S. 137, 150–59 (1933). The United States Code defines a “vessel” broadly as “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” 1 U.S.C. § 3. “Navigable waters” have been defined as waters that: (1) are subject to the ebb and flow of the tide (The Steamboat Thomas Jefferson, 23 U.S. (10 Wheat.) 428 (1825)); (2) are presently navigable (The Daniel Ball, 77 U.S. (10 Wall.) 557 (1870)); (3) are potentially navigable (i.e., with improvements) (The Montello, 87 U.S. (20 Wall.) 430 (1874)); or (4) were navigable in the past (Econ. Light & Power Co. v. United States, 256 U.S. 113 (1921)). Importantly, U.S. admiralty and maritime jurisdiction extends extraterritorially to cover acts done on the high seas, provided the acts were carried out “in furtherance of an activity bearing a significant relationship to a traditional maritime activity,” Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 218–19 (1986), and even to acts committed within the territory of another country, provided the acts involved (or were committed aboard) a U.S.-flagged vessel. See Flores, 289 U.S. at 150–59.
Thus, even though the Plunder Statute has not been the subject of a judicial opinion since the late-19th century, it is likely that the above-described consensus regarding the geographic extent of the United States’ admiralty and maritime jurisdiction resolves the early confusion surrounding the Plunder Statute’s reach.
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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 servicesâ€”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).
Enacted on August 26, 1983, the Recreational Vessels Act authorizes the U.S. Coast Guard to issue minimum safety standards for recreational vessels and associated equipment carried on such vessels. For purposes of the Act, a recreational vessel is one manufactured, rented, leased, chartered or used primarily for pleasure (46 U.S.C. § 2101).
Associated equipment includes a recreational vessel’s systems, accessories, components, appurtenances, and marine safety articles; in certain situations radio equipment is exempt (46 U.S.C. § 2101). The U.S. Coast Guard administers the statute (14 U.S.C. § 2).
The Recreational Vessels Act applies to U.S. and foreign recreational vessels and associated equipment that are operating on waters subject to United States jurisdiction (46 U.S.C. § 4301). United States waters extend to the U.S. Exclusive Economic Zone, which was claimed by Presidential Proclamation No. 5030 of March 10, 1983. Also, the Recreational Vessels Act was amended to include the current U.S. territorial sea, which was extended from 3 nautical miles (nm) to 12nm by Presidential Proclamation No. 5928 of December 27, 1988. The Act also applies to U.S. flagged recreational vessels operating on the high seas.
Two exceptions to the Act’s general application exist. The first is that unless otherwise provided, the Act does not apply to a foreign-flagged vessel operating temporarily on U.S. waters (46 U.S.C. §4301). No statutory or case law guidance was found explaining the meaning of operating temporarily. Second, certain waters lying entirely in New Hampshire are not within the Act’s jurisdiction until a final judicial decision determines whether they are navigable waters of the United States (46 U.S.C. §4301).
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The Rivers and Harbors Act of 1899 is the initial authority for the U.S. Army Corps of Engineers (ACOE) regulatory permit program to protect navigable waters in the development of harbors and other construction and excavation. Section 10 of the RHA (33 U.S.C. § 403) prohibits the unauthorized obstruction or alteration of any navigable water of the U.S, and provides that the construction of any structure in or over any navigable water of the U.S., or the accomplishment of any other work affecting the course, location, condition, or physical capacity of such waters is unlawful unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army. Section 12 (33 U.S.C. § 406) establishes penalties for the violation of RHA sections 401, 403, and 404, and authorizes the circuit court exercising jurisdiction in any district where structures erected in violation of these provisions exist to enforce the structures’ removal by injunction. The geographic jurisdiction of the RHA includes all navigable waters of the United States, which are defined as "those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible to use to transport interstate or foreign commerce." (33 C.F.R. Part 329.4). The authority of the Secretary of the Army to prevent obstructions to navigation in navigable waters of the United States was extended to artificial islands, installations, and other devices located on the seabed, as well as to the seaward limit of the outer continental shelf by section 4(f) of the amended Outer Continental Shelf Lands Act of 1953. (Pub. L. No. 212, 67 Stat. 1953; 43 U.S.C. § 1333(e); 33 C.F.R. Part 322).
The Whaling Convention Act of 1949 implements the International Convention for the Regulation of Whaling. Under the Act, it is illegal for any person subject to the jurisdiction of the United States to engage in whaling in violation of the Convention or of the Act. 16 U.S.C. § 916c(a)(1). It is also illegal to ship, transport, purchase, sell, offer for sale, import, export, or possess a whale or whale product taken in violation of the Convention or the Act. 16 U.S.C. § 916c(a)(2). Currently, the only whaling regulated under the Act is aboriginal subsistence whaling, and separately, the Marine Mammal Protection Act prohibits commercial whaling. 16 U.S.C. § 1372(f).
The Act applies to any "person," a term defined to mean "every individual, partnership, corporation, and association subject to the jurisdiction of the United States." 16 U.S.C. § 916(d). The phrase "subject to the jurisdiction of the United States" is not further defined in the Act. There is no geographical limit for the Act’s application to U.S. nationals and U.S. flag vessels. For non-nationals and foreign flag vessels, the seaward limit of the Act’s application is the seaward limit of U.S maritime jurisdiction (200 nm from the territorial sea baseline).