Seaward Limit of Laws

 

Abandoned Shipwreck Act Act to Prevent Pollution from Ships Anchorage Grounds Antarctic Conservation Act Antarctic Marine Living Resources Convention Act
Antiquities Act of 1906 Assault on Fisheries Observer Clean Boating Act of 2008 Clean Water Act Coastal Zone Management Act
Comprehensive Environmental Response, Compensation, and Liability Act of 1980 Deep Seabed Hard Mineral Resources Act (DSHMRA) Deepwater Port Act of 1974 Endangered Species Act The Fur Seal Act of 1966
Historic Sites, Buildings, and Antiquities Act 
(HSA) of 1935
Longshore and Harbor Workers' Compensation Act Magnuson-Stevens Fishery Conservation and Management Act Marine Mammal Protection Act Migratory Bird Treaty Act
National Environmental Policy Act National Historic Preservation Act National Marine Sanctuaries Act Native American Graves Protection and Repatriation Act Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990
Ocean Dumping Act Ocean Thermal Energy Conversion Act of 1980 Oil Pollution Act
of 1990
Outer Continental Shelf Lands Act of 1953 Plunder Statue
Ports and Waterways Safety Act of 1972 Recreational Vessels Act Rivers and Harbors Act of 1899 Sunken Military Craft Act Submerged Lands Act
Whaling Convention Act of 1949        

 

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

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

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


Abandoned Shipwreck Act of 1987, 43 U.S.C. §§ 2101 et seq

The Abandoned Shipwreck Act (ASA) was enacted by Congress to address the destruction of shipwrecks resulting from treasure hunting under the laws of salvage and finds. See H.R. Rep. No. 98-887 pt. 1, at 4 (1984); see also 43 U.S.C. § 2106(a).  With the exception of wrecks on certain federal public lands, the ASA asserts U.S. title to abandoned shipwrecks and automatically transfers the title to coastal states. 43 U.S.C. § 2105(c). The Act applies to three categories of shipwrecks: (1) those embedded in the submerged lands of a state; (2) shipwrecks embedded in coralline formations protected by a state on its submerged lands; and (3) those on a state’s submerged lands and are included in or determined eligible for inclusion in the National Register. See 43 U.S.C. § 2105(a). A shipwreck is abandoned if it is “deserted” and “the owner has relinquished ownership rights with no retention.” 43 U.S.C. § 2101(b). A shipwreck is embedded if it is “firmly affixed in the submerged lands or in coralline formations such that the use of tools of excavation is required in order to move the bottom sediments to gain access to the shipwreck, its cargo, and any part thereof.” 43 U.S.C. § 2101(a).

Citing to the Submerged Lands Act, the ASA generally extends seaward a distance of three nautical miles from the coastline to the inner limit of the outer continental shelf. See 43 U.S.C. § 2102(f)(1); see also 43 U.S.C. § 1301(b). In the cases of Texas and the Gulf coast of Florida, however, the ASA extends seaward three marine leagues—or nine nautical miles— from the coastline per Supreme Court decisions and grants from the Kingdom of Spain and Mexico. See 43 U.S.C. § 2101(f)(1); see also 43 U.S.C. § 1301(b)United States v. Louisiana, 363 U.S. 1 (1960)(holding that the Submerged Lands Act grants Texas and Florida a three-marine-league belt of submerged land extending from their coastlines); Treaty between United States and Spain Feb. 22, 1819, 8 Stat. 252, art. 3 (“The boundary line between the two countries, west of the Mississippi, shall begin on the Gulph of Mexico, at the mouth of the river Sabine, in the sea, continuing north, along the western bank of that river”); Treaty of Guadalupe Hidalgo Feb. 2, 1848, art. 5 (“The boundary line between the two Republics shall commence in the Gulf of Mexico three leagues from land opposite the mouth of the Rio Grande, from thence up the middle of that river”).The Act also extends to a seaward limit of three marine leagues from the coastline of Puerto Rico. See 43 U.S.C. § 2102(f)(2); see also 48 U.S.C. § 749. For the U.S. territories and possessions of Guam, the Virgin Islands, American Samoa, and the Northern Mariana Islands the ASA extends to three nautical miles. See 43 U.S.C. § 2102(f)(3)-(4); see also 48 U.S.C. § 1705(a); 159 Cong. Rec. S521-01.

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


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.


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

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

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


Antarctic Marine Living Resources Convention Act, 16 U.S.C. § 2431 et seq

The Antarctic Marine Living Resources Convention Act (AMLRCA), enacted in 1984, implements the Convention on the Conservation of Antarctic Marine Living Resources (Convention), which was ratified by the United States on February 18, 1982, and which entered into force on April 7 of that year.  16 U.S.C. § 2431(b). The objective of the Convention is the conservation of Antarctic marine living resources.  Convention, Art. II.  To give effect to this objective, Article II of the Convention establishes principles for restricting the harvesting of living marine resources and associated activities (e.g., scientific research, at-sea transshipment and processing) conducted within the area south of 60° South latitude and between that latitude and the Antarctic Convergence.  Convention, Arts. I and III.  This is known as the Convention Area. In addition, Article VII of the Convention establishes a Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), the function of which is to give effect to the objective and principles of the Convention, including by adopting conservation and management measures (CMs) that are binding on all Members and Contracting Parties.  Convention, Art. IX. The United States is a Member of CCAMLR.

CCAMLR CMs apply to harvesting of living marine resources and associated activities that occur inside the Convention Area as well as to certain activities, in particular the trade in toothfish (Dissostichus spp.), that occur outside the Convention Area.  Trade in toothfish is governed by a catch documentation scheme (CM 10-05) that tracks toothfish from the point of harvest through final import for consumption.  In addition to adopting CMs that address the conservation and management of target species, CCAMLR has adopted a number of measures intended to protect non-target species.  These include measures to protect vulnerable marine ecosystems from the adverse impacts of bottom fishing (CMs 22-05, 22-06, 22-07 and 22-09), minimize bycatch of sharks (CM 32-18) and seabirds (CMs 24-02, 25-02 and 25-03), and establish a framework for establishment of marine protected areas (CM 91-04).

The United States implements CCAMLR CMs through regulations that are promulgated by NOAA, in consultation with the Department of State, the U.S. Coast Guard and other federal agencies as appropriate. 16 U.S.C. § 2436; 50 C.F.R. Part 300 subpart G.

U.S. jurisdiction under AMLRCA extends to all persons (defined to include any ‘individual, partnership, corporation, trust, association, and any other entity subject to the jurisdiction of the United States) and all vessels of the United States that are engaged in the harvesting of Antarctic marine living resources or associated activities.  16 U.S.C. §§ 2432 (8) and (10); 50 C.F.R. § 300.100 (b)(1).

AMLRCA prohibits any person from engaging “in harvesting or other associated activities in violation of the provisions of the Convention or in violation of a conservation measure in force with respect to the United States” or violating “any regulation promulgated under this chapter.” 16 U.S.C. §§ 2435(1) and (2). Any person found to have violated AMLRCA is liable for a civil penalty of up to $11,000 per violation, with each day of a continuing violation constituting a separate violation.  16 U.S.C. § 2437 (a)(1). Criminal sanctions are available for some violations.  16 U.S.C. § 2438.  “[A]ny Antarctic marine living resource (or part thereof) with respect to which an act prohibited by [AMLRCA] is committed”, and any vessel, vehicle or aircraft subject to the jurisdiction of the United States used in connection with a violation of AMLRCA, are subject to forfeiture to the United States.  16 U.S.C. § 2439(d).

Additional reference information:


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

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

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

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

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


Light mantled sooty albatross and chick

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

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

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

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


Clean Boating Act of 2008, Pub. L. 110-288

The Clean Boating Act of 2008 (“CBA” or the “Act”) is an amendment to the Clean Water Act (33 U.S.C. §§ 1251 et seq) that affects recreational vessels. The CBA defines a recreational vessel as any vessel that is manufactured or used primarily for pleasure, or that is leased, rented, or chartered to a person for the pleasure of that person. 33 U.S.C. § 1362(25)(A). The Act does not apply to any vessel subject to inspection by the U.S. Coast Guard (“USCG”) that is engaged in commercial use or carries paying passengers. 33 U.S.C. § 1362(25)(B).

The CBA exempts from the Clean Water Act’s National Pollutant Discharge Elimination System permitting all discharges incidental to the normal operation of recreational vessels other than sewage.  33 U.S.C. § 1362(r). Instead, the CBA requires recreational vessels to comply with management practices developed by the U.S. Environmental Protection Agency (“EPA”) for those discharges which EPA determines, in consultation with USCG, the U.S. Department of Commerce (“DOC)” and interested States, it is reasonable and practicable to do so.  33 U.S.C. § 1322(o)(2).  For each discharge for which a management practice is developed, EPA in consultation with USCG, DOC, other interested Federal agencies, and interested States, must promulgate Federal standards of performance. 33 U.S.C. § 1322(o)(3). Once EPA issues the Federal standards of performance, USCG must promulgate regulations governing the design, construction, installation, and use of management practices as are necessary for recreational vessels to meet the standards.  33 U.S.C. § 1322(o)(4).    

After the effective date of the USCG’s regulations, owners and operators of recreational vessel are prohibited from operating in or discharging into “the waters of the United States or the waters of the contiguous zone.” 33 U.S.C. § 1322(o)(6).  The Clean Water Act defines the “contiguous zone” as "the entire zone established or to be established by the United States under article 24 of the [1958] Convention on the Territorial Sea and the Contiguous Zone." 33 U.S.C. § 1362(9). Under this Convention, “[t]he contiguous zone may not extend beyond twelve miles from the baseline from which the breadth of the territorial sea is measured.” 1958 Convention on the Territorial Sea and the Contiguous Zone art. 24, Apr. 29, 1958, 15 U.S.T. 1606, 516 U.N.T.S. 205.  Thus, CBA’s prohibition applies within the belt of seas that encompasses waters to a seaward limit of 12 nautical miles from the U.S. baseline (generally the mean low-water line).

Additional reference information:



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

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

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

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


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

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

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

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

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


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

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

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