SandBar 2.4

Legal Reporter for the National Sea Grant College Program

Volume 2:4 SANDBARSSAANNDDBBAARRThe

Virginia v. Maryland, 124 S.Ct. 598, 2003 LEXIS9192 (2003).

Josh Clemons, M.S., J.D.

On December 9, 2003, the U.S. Supreme Courtruled that the Fairfax County, Virginia, WaterAuthority legally may build a structure to divertwater from the Potomac River for use in Virginiawithout being subject to regulation by the State ofMaryland, despite the fact that the river lies entire-ly within Maryland’s borders. The 7-2 majoritybased its decision on its interpretation of key provi-sions of two historical documents. Chief JusticeRehnquist delivered the Court’s opinion; JusticesKennedy and Stevens filed dissents.

Background – Centuries of DisputeMaryland and Virginia have bickered over controlof the Potomac River since the 1700s. The roots ofthe dispute reach even farther back in time:Virginia’s claims go back to a 1609 charter fromKing James I and a 1688 patent from King JamesII, both of which included the Potomac. Maryland’sclaim dates to a 1632 charter from King Charles I,which also included the Potomac. In its 1776 con-stitution Virginia recognized the validity of the1632 charter, but reserved the rights of “navigationand use” of the Potomac. Maryland’s constitutionalconvention shortly afterward passed a resolutionrejecting Virginia’s reservation.

For nine years the states quarreled over naviga-tional and jurisdictional issues. In 1785, at the urg-ing of George Washington, the states agreed to abinding compact. The 1785 compact recognized,

among other things, both states’ rights to navigatethe river. Of particular moment in the present caseis Article Seventh of the compact, which provides

The citizens of each state respectively shallhave full property in the shores of Potowmack[sic] river adjoining their lands, with all emol-

Supreme Court Rules for Virginiain Potomac Conflict

Alliance to Protect Nantucket Sound, Inc. v. U.S.Department of the Army, et. al., 2003 U.S. Dist.LEXIS 16405 (D. Mass. Sept. 18, 2003).

Stephanie Showalter, J.D., M.S.E.L

During the second round of litigation1 in the con-tentious battle to build a wind farm in NantucketSound, the U.S. District Court for the District ofMassachusetts held that the U.S. Army Corps ofEngineers (Corps) has the authority to grant a per-mit for the construction of a data tower on theouter continental shelf.

BackgroundCape Wind Associates (Cape Wind) intends tobuild the first offshore wind energy plant in the

Cape WindAssociates Wins

Round Two

See Cape Wind, page 6

See Potomac, page 4

Volume 2, No. 4 The SandBar

Turtle Island Restoration Network and Center forBiological Diversity v. NMFS, 340 F.3d 969 (9th Cir.2003).

Jennifer Lindsey, 3LStephanie Showalter, J.D., M.S.E.L.

The Ninth Circuit Court of Appeals recently ruledthat the National Marine Fisheries Service(NMFS) violated the Endangered Species Actwhen it issued longline fishing permits under theHigh Sea Compliance Act to California vessels.

BackgroundThe longline fishing industry utilizes fishing linesextending behind the vessels for several miles.Thousands of baited hooks are attached to thelines which snag fish as the vessel moves throughthe water. Longline vessels mainly target pelagicspecies, such as swordfish and tuna. Longline fish-ing is extremely controversial because the hookscapture non-targeted fish resulting in significantincidental catch (bycatch). Of particular concernis the industry’s interaction with endangered andprotected species.

When litigation shut down the Hawaii long-line swordfish industry in November 1999 becauseof conflicts with sea turtles, many Hawaiian ves-sels relocated to California. The amount of sword-fish landed at San Pedro, California aloneincreased from 1.5 million pounds in 1999 to 2.6million pound in 2000. The increased activityraised concerns regarding the impacts on threat-ened and endangered species in the Pacific Ocean.

In July 2000, the Center for BiologicalDiversity and Turtle Island Restoration Network(Center) sent the NMFS a notice of intent to suebased on alleged violations of the EndangeredSpecies Act (ESA). The Center claimed that whenthe NMFS issued longline permits under the High

Supreme Court Rules for Virginia in Potomac ConflictJosh Clemons . . . . . . . . . . . . . . . . . . . . . 1

Cape Wind Associates Wins Round TwoStephanie Showalter . . . . . . . . . . . . . . . .1

Issuance of Longline Permits TriggersConsultation

Jennifer Lindsey, Stephanie Showalter . 2

Public Access to Lake Erie ThreatenedStephanie Showalter . . . . . . . . . . . . . . . 8

Formal Cumulative Impacts Analysis Not Required Under Alaska Law

Shannon McGhee . . . . . . . . . . . . . . . . . 10

Book Reviews:Rivers of Life: Managing Water for People and Nature

Josh Clemons . . . . . . . . . . . . . . . . . . . . 12

The National Wildlife Refuges: Coordinating a Conservation System through Law

Stephanie Showalter . . . . . . . . . . . . . . .13

International Law UpdateStephanie Showalter . . . . . . . . . . . . . . .14

Coast To CoastAnd Everything In-Between . . . . . . . . 15

Table of ContentsIssuance of Longline

Permits TriggersConsultation


Seas Compliance Act (Compliance Act) the agencyviolated § 7 of the ESA by failing to consult and § 9by granting permits that result in the “take” ofthreatened or endangered species. The NMFSclaimed the agency did not have the discretion toimpose permit conditions to further the conserva-tion of protected species and, therefore, the ESAconsultation provisions were not applicable. TheCenter filed suit and the district court grantedsummary judgment in favor of the NMFS, findingthe agency had no discretion to condition the per-mits. The Center appealed.

ConsultationSection 7(a)(2) of the ESA states:

Each federal agency shall, in consultation withand with the assistance of the Secretary [ofInterior or Commerce], insure that any actionauthorized, funded, or carried out by suchagency (hereinafter in this section referred toas an “agency action”) is not likely to jeopar-dize the continued existence of any endan-gered species or threatened species or result inthe destruction or adverse modification ofhabitat.2

Section 7 applies “to all action in which there isdiscretionary Federal involvement or control.”3 Thisdiscretionary control must “have the ability toinure to the benefit of a protected species.”4 TheNMFS argued that the consultation provisions donot apply to the issuance of fishing permits underthe Compliance Act because the agency does notretain sufficient discretionary control to imposeconditions which inure to the benefit of a protect-ed species.

Congress enacted the Compliance Act in 1995to implement the “Agreement to Promote Com-pliance with International Conservation andManagement Measures by Fishing Vessels on theHigh Seas” (Agreement). Under the ComplianceAct, U.S.-flagged vessels must obtain permits fromthe NMFS to fish on the high seas. The Com-pliance Act authorizes the Secretary of Com-merce “to establish such conditions and restric-tions on each permit issued under this section asare necessary and appropriate to carry out theobligations of the United States under the

Agreement, including but not limited to . . .” vesselmarking standards and reporting requirements.5

The Ninth Circuit held that the ComplianceAct provides the NMFS with the discretion to pro-tect listed species. The phrase “including but notlimited to” indicates that Congress did not intendthe list of restrictions enumerated in § 5503(d) tobe exhaustive . Rather, the court held thisCongressional language anticipates that otherobligations might arise and provides the NMFSwith the discretion to determine what types ofconditions and restrictions are appropriate tocarry out U.S. obligations. The Agreement oblig-ated signatory nations to take measures to ensurethat their fishing vessels refrain from engaging inactivities which undermine the effectiveness ofinternational conservation and management mea-sures. The Compliance Act defines “internationalconservation and management measures” as“measures to conserve or manage one or morespecies of living marine resources.”6 Because theU.S. is obligated to prevent its vessels from under-mining international conservation measures, thecourt determined that the NMFS clearly has thediscretion to impose conditions on permits for thebenefit of threatened and endangered species. Theissuance of permits under the Compliance Act,therefore, is discretionary agency action requiringconsultation under § 7 of the ESA.

ConclusionThe Ninth Circuit held that the NMFS violatedthe ESA by failing to consult internally prior tothe issuance of longline permits under theCompliance Act. The Center’s claims broughtunder § 9 of the ESA, which the district court didnot reach, were remanded for further proceedingsin light of this decision.

ENDNOTES1. Turtle Island Restoration Network and Center for

Biological Diversity v. NMFS, 340 F.3d 969, 971 n.2 (9th Cir. 2003).

2. 16 U.S.C. § 1536(a)(2) (2003).3. 50 C.F.R. § 402.03 (2003) (emphasis added).4. Turtle Island, 340 F.3d at 974.5. 16 U.S.C. § 5503(d) (2003) (emphasis added).6. Id. at § 5501(5).

uments and advantages thereunto belonging,and the privilege of making and carrying outwharves and other improvements, so as not toobstruct or injure the navigation of the river.

The compact did not, however, settle the issueof the exact location of the boundary between thestates. Ninety-two years would pass before bindingarbitration awarded ownership of the bed of thePotomac to Maryland by establishing the boundaryat the low-water mark on the Virginia shore. ArticleFourth of the 1877 award is the second key provi-sion interpreted by the Court in the present case.Article Fourth of the award states

Virginia is entitled not only to full dominionover the soil to low-water mark on the southshore of the Potomac, but has a right to suchuse of the river beyond the line of low-watermark as may be necessary to the full enjoymentof her riparian ownership, without impedingthe navigation or otherwise interfering with theproper use of it by Maryland, agreeably to thecompact of seventeen hundred and eighty-five.

The Modern ConflictMaryland instituted a permitting program forwaterway construction and water withdrawal onthe Potomac in 1933. Over the years, starting in1957, Maryland issued many of these permits tovarious Virginia entities without objection. In1996, the Fairfax County Water Authority (FCWA)applied for permits to build a 725-foot water intakestructure to supply water to northern Virginia, siteof some of Washington D.C.’s most booming sub-urbs. Maryland denied the permit – a first.Maryland officials believed granting the permitwould be detrimental to their state by encouragingsprawl in Virginia, and claimed that FCWA hadnot adequately demonstrated need for the project.After fruitlessly seeking administrative remedies,Virginia filed a complaint with the U.S. SupremeCourt in March 2000 seeking a declaration thatMaryland lacked regulatory authority to veto theproject. (In 2001, Maryland approved the permit,but with the condition that FCWA install a restric-tor to limit withdrawal.)

The Court accepted the case under its originaljurisdiction over controversies between states.1 As it

typically does in original jurisdiction cases, theCourt referred the complaint to a Special Master forfactfinding and recommendation. The SpecialMaster, Ralph I. Lancaster, Jr., of Maine, reviewedevidence submitted by both states and recommend-ed that the Court rule for Virginia because, in hisopinion, Maryland did not have authority to regu-late Virginia’s rights under the 1785 compact and1877 award. Maryland opposed this recommenda-tion on two grounds: first, that as sovereign over theriver to the Virginia border it had regulatory author-ity; and second, that even if Virginia’s rights underthe compact and award were unrestricted, Marylandhad acquired the right to regulate by way ofVirginia’s acquiescence to its regulation since 1957.

The Court’s AnalysisThe Court agreed with both states that the 1785compact and 1877 award were determinative.Starting with the 1785 compact, the Court observedthat Article Seventh, quoted above, is silent con-cerning regulatory authority, while other articlesabout other rights (for example, fishing) speakexplicitly of regulatory schemes. Virginia arguedthat the compact’s structure indicated the states’intention to define clearly the circumstances underwhich one state’s citizens would be under the juris-diction of the other, and therefore Article Seventh’ssilence meant each state would regulate its own cit-izens under that article. Maryland argued that itssovereignty over the Potomac was well settled by1785, so Article Seventh should be interpreted inMaryland’s favor. The Court sided with Virginiaafter noting the fact that the states’ boundary wasnot finally determined until 1877, so sovereigntyover the river could not have been well settled by1785. In 1785, the Court said, the states merelyagreed to protect the rights of both states’ citizensto build structures; questions of regulatory author-ity were postponed until sovereignty over the riverwas decided.

The 1877 arbitration decided the sovereigntyquestion in Maryland’s favor, by drawing the bound-ary line at the Virginia shore’s low-water mark.Nonetheless, even though the Potomac is an entirelyintrastate, Maryland river, the Court read the “plainlanguage” of Article Fourth as recognizing inVirginia a sovereign right – that is, a right Marylandcannot regulate - to use the Potomac’s waters.2


Potomac, from page 1


Maryland argued that even if Virginia did havesuch a right, it lost it by acquiescing for years inMaryland’s regulation of water withdrawal andwaterway construction. Among other things,Maryland had taxed structures, issued licenses,and exercised exclusive criminal jurisdiction on itsside of the state boundary – policing activities nor-mally carried out by a sovereign. The Court deflat-ed this argument by focusing solely on the states’relationship vis-à-vis water withdrawal and water-way construction activities. In 1976, Virginiaprotested Maryland’s assertion of an exclusiveright to withdraw water; thus, Virginia had not infact acquiesced to Maryland’s assertion of regulato-ry authority over withdrawals and construction,and Maryland’s acquiescence argument fails.

The DissentsJustices Stevens and Kennedy filed separate dis-senting opinions, and each joined the other’s opin-ion. Justice Stevens saw a much simpler issue:Maryland is sovereign, Virginia is riparian, so thequestion is whether riparian landowners’ rights towithdraw water can be restricted by the sovereign.Under common law, the answer is “yes.”

Justice Kennedy undertakes a more extensiveanalysis. Unlike the majority, he finds thatMaryland had clear title to the river in 1785,because the 1877 award (approved by both statesand Congress) declared that Maryland’s “clear titleto the whole River” dated back to 1632.3 The factthat Virginia disputed title between 1785 and 1877has no force. The decisive question, then, iswhether Maryland waived sovereignty at some timesince 1785.

Justice Kennedy interprets the 1785 compact asa mutual recognition of rights of access to the river,to protect each state’s citizens in case the otherstate ultimately was found to have full title to theriver. When Maryland was determined to havetitle, the compact worked as a waiver of sovereigntyonly to the extent that Maryland could not excludeVirginia from the river. Maryland’s police powersremained intact. Maryland can, therefore, restrictVirginia’s water withdrawals so long as suchrestriction does not amount to exclusion.

Unless, of course, Virginia’s rights wereexpanded by the 1877 arbitration award. Here,Justice Kennedy rejects the majority’s reading of

the “plain language” of Article Fourth and con-cludes that the award simply recognizes Virginia’sriparian (but not sovereign) rights.

Justice Kennedy ultimately declares that theproper question would have been whetherMaryland’s regulation in this case amounted toan exclusion of Virginia, and not whether Marylandhas the right to regulate Virginia at all. He alsoexpresses concern that the majority decision con-tains no principle limiting Virginia’s with-drawals, and that more complex questions aboutthe power of one state to regulate another havebeen circumvented.

ConclusionA 7-2 majority of the Supreme Court overruledMaryland’s objections to the Special Master’sreport, and entered the decree proposed by theSpecial Master affirming Virginia’s sovereignrights under the 1877 arbitration award to buildstructures appurtenant to its shore and withdrawwater from the Potomac River without regulationby Maryland. The effect of this case on other inter-state water disputes may be limited, for two rea-sons. First, the decision turned on interpretation ofhistorical documents unique to this case – the 1785compact and 1877 arbitration award. Second, thePotomac River, although practically serving as theborder between Virginia and Maryland, in factbelongs entirely to Maryland. Conflicts generallyinvolve interstate waters, not intrastate ones. AsJustice Kennedy points out in his dissent, inter-state disputes are governed by the federal commonlaw of equitable apportionment.4 The Court’s deci-sion leaves open the question of what law will beapplied when, in the future, Maryland objects tothe amount Virginia withdraws – an objection that,when one considers the growth of Virginia’s D.C.suburbs, seems inevitable.

ENDNOTES1. U.S. CONST. art. III, § 2, cl. 1.2. Virginia v. Maryland, 124 S.Ct. 598, 2003 LEXIS

9192 at * 36 (2003).3. Id. at *48 (Kennedy, J., dissenting).4. See Josh Clemons, Water-Sharing Compact

Dissolves, WATERLOG 23:3, 1 (2003), available athttp://www.olemiss.edu/orgs/SGLC/23.3watershare.htm .

Wind Farm, from page 1


United States on Horseshoe Shoal, five miles offCape Cod, Massachusetts. Cape Wind’s plantwould consist of 130 wind turbines producing amaximum output of 420 megawatts. As a first steptoward the wind farm’s construction, Cape WindAssociates applied for a permit from the Corpsunder § 10 of the Rivers and Harbors Act to builda “Scientific Monitoring Station” on HorseshoeShoal to compile data on wind, wave, tide height,current, and water temperature. The station is a197-foot monopole structure supported by threeopen-ended steel piles driven into the ocean floor.The data tower covers approximately 900 squarefeet. Cape Wind submitted a separate permitapplication for the wind energy plant.

After reviewing the data tower permit applica-tion and soliciting public comment, the Corps

issued a § 10 permit to Cape Wind. Cape Windcould build its tower provided it dismantled thetower within five years, posted a $30,000 bond foremergency repairs and removal, and shared thedata collected with government agencies, educa-tion institutions, and research organizations.Pursuant to its requirements under the NationalEnvironmental Policy Act (NEPA), the Corps pre-pared an Environmental Assessment throughwhich the agency determined that the data towerwould not have a significant impact on the envi-ronment. The Alliance to Protect Nantucket

Sound (Alliance) filed suit challenging the Corps’sdecision to issue the § 10 permit.

Section 10 PermitAlliance argued the Corps lacked the authorityunder the Rivers and Harbors Act (RHA) to issuethe § 10 permit. Under § 10, a permit is requiredfor the construction of any structure in navigablewaters of the U.S. Generally, the jurisdiction of theCorps under the RHA only extends three milesseaward of the coast. However, in the OuterContinental Shelf Lands Act (OCSLA), Congressextended the authority of the Corps to preventobstructions to navigation to artificial islands,installations, and other devices “permanently ortemporarily attached to the seabed, which may beerected thereon for the purpose of exploring for,

developing, or producing resources therefrom, orany such installation or other device (other than aship or vessel) for the purpose of transporting suchresources.”2 The Corps interprets this provision inthe OCSLA as extending the authority of theCorps to “artificial islands, installations, and otherdevices located on the seabed, to the seaward limitof the outer continental shelf.”3

The district court determined that the Corps’sissuance of a § 10 permit for the data tower wasreasonable, rejecting Alliance’s argument that theCorps only has authority over structures erected

for the purposes of extracting resources. The courtfound that the statutory provisions of the OCSLAsupported the Corps’s claim of authority over allstructures on the continental shelf. The court’sreasoning, however, is questionable and likely tobe reviewed on appeal.

Section 1333 of the OCSLA states that theCorps has authority over “all artificial islands,and all installations and other devices permanent-ly or temporarily attached to the seabed, whichmay be erected thereon for the purpose of explor-ing for, developing, or producing resources there-from.”4 Relying on legislative history and Corpsregulations, the court interprets this phrase tomean all artificial islands, installations, and otherdevices located on the seabed “including, but notlimited to, those that ‘may be’ used to explore for,develop, or produce resources.” 5 With the addi-tion of the phrase “including, but not limited to”the court is attempting to close a regulatory gap.Currently no federal agency has clear authorityover the placement and construction of offshorewind farms. The court tries to fill this void by sim-ply concluding that “Congress could not haveintended to create such a regulatory void when itamended the OCSLA in 1978.”6 Although this is areasonable argument for the court to make,because it is unlikely Congress was thinkingabout wind farms in 1978, the failure of the dis-trict court to give effect to the plain language ofthe statute could cause higher courts to overturnthis decision on appeal.

NEPAAlliance also argued that the Corps violated theNational Environmental Policy Act (NEPA) byfailing to circulate the EnvironmentalAssessment and Finding of No Significant Impact(FONSI) for public review, failing to adequatelyconsider alternatives, and reviewing the datatower permit separately from the wind energyplant permit. The court quickly dismissed all ofAlliance’s arguments.

In limited circumstances, such as when a pro-posed action is without precedent, an agency isrequired to make the FONSI available for publicreview.7 The court determined that Cape Wind’sdata tower was not without precedent as the Corpspreviously authorized a similar tower off Martha’s

Vineyard. The court also found that the Corps ade-quately considered alternatives, including land-based towers.

The court also found that the Corps acted rea-sonably in conducting separate reviews for thedata tower and the wind energy plant. Actionswhich are connected should be addressed in thesame environmental assessment and impact state-ment. Connected actions are those which automat-ically trigger other actions requiring a NEPAreview, cannot proceed unless other actions aretaken, or are interdependent parts of a largeraction.8 The court held that the data tower was nota connected action which should have beenreviewed in conjunction with the wind farm pro-ject, because the authorization of the data towerdoes not automatically trigger the authorization ofthe wind farm, the data tower project can proceedwithout the wind farm, and the utility of the datatower is not dependent on the final approval of thewind farm.

ConclusionThe district court found the Corps has the author-ity to grant a permit for the construction of a datatower on the outer continental shelf. The courtalso determined that the Corps fulfilled its obliga-tions under NEPA with respect to the data towerpermit. An appeal of this decision is expected.

ENDNOTES1. The first round involved whether a license from

the Commonwealth of Massachusetts, in addi-tion to a federal permit, was required for theconstruction of the data tower. The court deter-mined that because the tower would be builtmore than three miles offshore, the federal gov-ernment has exclusive jurisdiction.

2. 43 U.S.C. § 1333 (2003).3. 33 C.F.R. § 320.2(b) (2003).4. 43 U.S.C. § 1333(a)(1) (2003).5. Alliance to Protect Nantucket Sound, Inc. v. U.S.

Department of the Army, et. al., 2003 U.S. Dist.LEXIS 16405 at *29 (D. Mass. Sept. 18, 2003)(emphasis in original).

6. Id. at *32 n. 87.7. 40 C.F.R. § 1501.4 (2003).8. 40 C.F.R. § 1508.25(a)(1) (2003).



Stephanie Showalter, J.D., M.S.E.L.

IntroductionA controversial bill pending before the Ohio StateLegislature, if passed as introduced, would shiftthe upper boundary of Ohio’s Lake Erie publictrust lands from the ordinary high water mark tothe low water mark. Frank Lichtkoppler, a SeaGrant Extension agent in Ohio, brought this mat-ter to our attention and asked us to share ourthoughts.

The Public Trust DoctrineUnder the common law, the public trust doctrineprovides that “public trust lands, waters and livingresources in a State are held by the State in trust forthe benefit of all the people, and establishes theright of the public to fully enjoy public trust lands,waters and living resources for a wide variety ofpublic uses.”1 Public trust waters are the state’snavigable waters and public trusts lands are thelands beneath those navigable waters, up to theordinary high water mark. Public trust landsinclude tidelands, shorelands, and the land beneathoceans, lakes, and rivers.

Public trust lands are unique in thattwo separate titles exist to the samepiece of land. The state holds the publictitle, often referred to as jus publicum,ensuring the right of the public to useand enjoy the public trust waters andlands for commerce, navigation, fishing,bathing, and other related uses. The juspublicum interest is reserved by the stateregardless of the deed. “A state cannotconvey the jus publicum interest into pri-vate ownership, nor can it abdicate itstrust responsibilities.”2 The privatetitle, the jus privitum, can be held by aprivate individual or the state. Theholder of the private title has the rightof use and possession. The private rightto use the public trust lands, however,

is subservient to the dominant public right ofaccess.

Ohio’s Public Trust DoctrineEach State manages its public trust lands andwaters in different and unique ways. Ohio is ahigh water state, which means that the state ownsboth titles, the private right to possess and thepublic “trust” title, from the shore up to the highwater mark.3 Section 1506.10 of the Ohio Codeestablishes Ohio’s rights to the waters of LakeErie. It states that

the waters of Lake Erie . . . extendingfrom the southerly shore of Lake Erieto the international boundary linebetween the United States and Ca-nada, together with the soil beneathand their contents, do now belong andhave always, since the organization ofthe state of Ohio, belonged to the stateas proprietor in trust for the people ofthe state.4

Public Access to Lake Erie Threatened

The Ohio Supreme Court has stated that “thestate as trustee for the public cannot by acquies-cence abandon the trust property or enable adiversion of it to private ends different from theobject for which the trust was created.”5

House Bill 218When introduced, House Bill 218 contained lan-guage that would clearly violate the public trustdoctrine. The drafters of the bill sought to alter §1506.10 by placing the words “natural low watermark of the” before “southerly shore” and adding aparagraph restricting the state’s property interest tobelow the natural low water mark.6 As mentionedabove, a state may not transfer all ownership rightsto public trust property to private owners. A shift inthe boundary line from the high water mark to thelow water mark would improperly divert publictrust property from public to private use.

In appears other members of the Ohio Houserealized the problems with the bill’s language.The bill now reads “the waters of Lake Erie. . .extending from where the waters of Lake Erie makecontact with the land to the international boundary. . . belong to the State.”7 With the alteration inlanguage, even if the bill passes, the authority ofthe Ohio Department of Natural Resources andthe rights of the public should be preserved.While the version of the bill passed by the Housecould still be interpreted as granting private prop-erty rights above the low water mark, Ohio courtsare more likely to adhere to precedent and set thehigh water mark as the line where Lake Eriemakes contact with the land.

ConclusionIt is still too early to tell whether the panic causedby the introduction of this bill was premature.While passage of the bill could greatly affect thestate’s coastal management program, H.B. 218 hassignificant hurdles to overcome before adoption.The bill is currently pending in the Ohio Senate,which may not be as susceptible to the politicalpressure applied by Lake Erie property owners asrepresentatives in the House. Due to the signifi-cant public access implications of H.B. 218, theLaw Center will continue to track this legislationas it moves through the Ohio Legislature and/orthe courts.

ENDNOTES1. Coastal States Organization, Putting the Public

Trust Doctrine to Work, 1 (1997).2. Id. at 8.3. There is one minor exception to this rule. If an

area of public trust land was conveyed to pri-vate owners by the U.S. federal governmentprior to statehood, the private owners hold soletitle.

4. OH. REV. CODE § 1506.10 (2003).5. State v. Cleveland & Pittsburgh RR Co., 113 N.E.

677, 682 (Ohio 1916).6. H.B. 218, as introduced, 125th Gen. Assem., Reg.

Sess. (Oh. 2003).7. H.B. 218, as passed by the House, 125th Gen.

Assem., Reg. Sess. (Oh. 2003).


Publication AnnouncementThe Mississippi-Alabama Sea Grant Legal Program is pleased toannounce the recent publication of A Citizen’s Guide to ConservationEasements in Alabama & Mississippi. Edited by Josh Clemons, ResearchCounsel for the Legal Program, the guide is intended to acquaintAlabama and Mississippi landowners with the law applicable to con-servation easements in their states. Summaries of the relevant stateand federal statutes and regulations are provided, along with thetext of the statutes and regulations themselves. The guide is avail-able on-line at http://www.olemiss.edu/orgs/SGLC/citizen.pdf andhard copies are available upon request.


Formal Cumulative Impacts Analysis NotRequired Under Alaska Law

Greenpeace, Inc. v. State of Alaska, 79 P. 3d 591(Alaska 2003).

Shannon McGhee, 2L

The Supreme Court of Alaska recently addressedwhether Alaska requires a NEPA-like or “whole-project” approach to cumulative impacts analysiswhen projects are reviewed for consistency with theState’s coastal management plan.

BackgroundIn 1995, British Petroleum Exploration (BP) pur-chased four oil and gas leases to develop Alaska’sfirst offshore oil facility and subsea oil pipelinein the Beaufort Sea near Prudhoe Bay. BP’s plans,known as the Northstar Project, required severalfederal and state permits. Any project impactingAlaska’s coastal areas and requiring multiple per-mits must undergo a comprehensive review todetermine its consistency with Alaska’s CoastalManagement Program (ACMP). The AlaskaDivision of Government Coordination (DGC)administers the review and is responsible forissuing the consistency determination. Due tothe nature of the Northstar Project, the UnitedStates Army Corps of Engineers was also requiredto rev iew the pro jec t under the Nat iona lEnvironmental Policy Act (NEPA) and preparean Environmental Impact Statement. In an effortto expedite the review process, the DGC andArmy Corps of Engineers (Corps) coordinatedtheir reviews.

During the review process, public commentwas sought by DGC and the Corps. Greenpeaceresponded with extensive comments. DGC foundthe Northstar Project consistent with ACMP’sstandards in a Proposed Consistency Deter-mination in early 1999. Greenpeace, unhappy withthe consistency determination, asked the AlaskaCoastal Pol icy Counci l to review whetherGreenpeace’s comments were fairly considered inthe proposed consistency determination. TheCouncil sustained the proposed consistency deter-

mination and the DGC issued a Final ConsistencyDetermination on February 4, 1999.

Greenpeace appealed the Final ConsistencyDetermination to the Alaska Superior Court. Thesuperior court affirmed DGC’s decision andGreenpeace appealed to the Supreme Court ofAlaska. Greenpeace alleged as a matter of law thatDGC failed to apply the proper cumulative impactsanalysis and phasing procedural requirementsmandated under ACMP. On appeal, the SupremeCourt ruled Alaska law did not require DGC toperform a NEPA-like cumulative impact analysisand that Northstar was not a phased project.

Cumulative ImpactsGreenpeace argued that the proper standard for acumulative impacts analysis under the ACMPshould be defined as “the impact on the environ-ment which results from the incremental impactsof the action when added to other past, present,and reasonably foreseeable future actions.”1

Greenpeace supported its argument by claimingthe federal government’s Final EnvironmentalImpact Statement implicitly endorsed a NEPA-likedefinition by describing the ACMP’s standards asencompassing a “general balancing process takingaccount of public need, alternatives, and cumula-tive effects . . .”2 Greenpeace also claimed Alaskalaw defines a “use of direct and significant impact”in a way that considers the cumulative effects of acoastal project.3

The DGC, on the other hand, asserted Alaskalaw and cases support a “whole-project analysis”approach to the meaning of cumulative impacts.This whole-project analysis would require the DGCto evaluate the combined impacts of all aspects ofthe project under review, but not require the DGCto examine the project in light of hypothetical orproposed future development in the region.4

The Court agreed with the DGC that a NEPA-like cumulative impacts analysis is not warrantedby the ACMP because the NEPA review process isalready part of the consistency review for pro-jects like Northstar. “The placement of struc-

tures and the discharge of dredged or fill materi-al into coastal water must, at a minimum, complywith the standards contained in Parts 320-323, 33C.F.R. 47,” a federal regulation under NEPArequiring a formal cumulative impacts analysis.5

This provision ensures that proposed projectsrequiring federal permits will achieve the mini-mal level of compliance with Alaskan law uponapproval of a federal permit. It does not, asGreenpeace suggests, add an additional layer ofcumulative impacts analysis. This statute doesnot require DGC to conduct an independentreview. While the DGC must review and consid-er any cumulative impact analysis prepared by afederal agency, the DGC remains free to acceptor reject the federal analysis.6 The SupremeCourt reasoned that a separate level of review isunnecessary because of the availability of a fed-erally prepared cumulative impacts analysis.

The Court also noted that ACMP standardsrequire the DGC to consider a project’s known andpredictable effects during the consistency review,such as adjacent uses and even subsequent adja-cent uses. The Court rationalized a “whole-projectanalysis,” as suggested by the DGC, as more com-patible with these standards because “it takes intoaccount ‘all aspects of a project, considered as awhole’ and its ‘existing development context’ butdoes not require the DGC to speculate aboutunknown and unpredictable future events as does aNEPA-defined cumulative impact analysis.”7

Greenpeace also argued that the federal CoastalZone Management Act (CZMA), as well as theDGC handbooks, promoted a NEPA-like cumula-tive impacts analysis for ACMP consistencyreviews. No provision in the CZMA or its regula-tions mandates Alaska adopt a NEPA-like cumula-tive impact analysis. The Court also rejected simi-lar arguments that the DGC handbooks and poli-cies required a NEPA-defined cumulative impactsanalysis, stating that at the most these materials“simply encourage coastal districts to developcumulative impact analysis guidelines . . .”8

Finally, Greenpeace contended that even underDGC’s “whole project” cumulative impacts analy-sis, DGC still failed to consider “the incrementalcontribution of Northstar, in the context of past,present and reasonably foreseeable actions,” ren-dering the DGC decision arbitrary and capricious.9

Therefore, the DGC’s consistency determinationcould only fail because the agency failed to make areasonable decision. Agency decisions are general-ly reviewed under the “hard look” standard -examining whether the agency took a “hard look”at the issues. The failure to comply with the “hardlook” standard is a separate issue which was notraised by Greenpeace on appeal. Greenpeaceargued that the DGC failed to comply with manda-tory procedures. Because a NEPA-like cumulativeimpacts analysis is not required, the DGC’s finalconsistency determination complied with manda-tory ACMP procedures. Greenpeace waited toraise the issue of failure to comply with the “hardlook” standard until it filed its reply briefs withthe court. The Supreme Court held thatGreenpeace waived its right to argue this issue byfailing to raise the issue on appeal.

PhasingThe second procedural issue was whether DGCimproperly phased the Northstar Project by prema-turely issuing permits and approving “majoraspects” of the project’s future developments with-out sufficient information to make a reasonedACMP consistency determination. The Court suc-cinctly concluded that the Northstar project wasnot phased and that the consistency review encom-passed the project in its entirety.

ConclusionThe Supreme Court of Alaska determined Alaskalaw did not require DCG to produce NEPA-likecumulative impact analysis during their ACMPconsistency review of the Northstar Project andaffirmed DCG’s final consistency determination.

ENDNOTES1. Greenpeace, Inc. v. State, 79 P. 3d 591, 593 (Alaska

2003) (citing 40 C.F.R. § 1508.7 (2002)).2. Id. at 594.3. Id. (citing ALASKA STAT § 46.40.210 (1995)).4. Id.5. ALASKA ADMIN. CODE tit. 6, § 80.040 (2000).6. Greenpeace, 79 P. 3d at 595, n 20.7. Id. at 596.8. Id. at 597.9. Id. at 598.


Josh Clemons, M.S., J.D.

We humans love buildingdams. When a child en-counters a trickle of waterin a ditch or yard, ninetimes out of ten he or shewill plop a big lump ofmud down in the mid-dle of it to alter the flow.The urge does not abate

with age. For millennia, peoplehave altered natural river flow patterns to providebenefits like flood protection, irrigation, navigation,and energy. Flow alteration on a massive scale hasbeen most pronounced in the northern third of theworld (including the U.S., Canada, Europe, and theformer Soviet Union) where over three-fourths oflarge river systems are hydrologically modified –and enough water is impounded to affect the tilt ofthe earth’s axis and the speed of its rotation. Whileall this flow modification and river management hasundeniably been highly useful to humanity, it isequally undeniable that the benefits have not comewithout ecological and environmental costs.

In Rivers of Life, Sandra Postel and Brian Richterargue that human civilization has reached a point atwhich it is necessary to develop new ways of thinkingabout water management. Rather than viewing watersolely as a resource to be exploited by diversion andimpoundment, we should consider the benefits thatnatural systems provide: fish and wildlife habitat,water purification, soil regeneration, and so on.These benefits should be quantified to the extentpossible so that they can then be considered incost/benefit analyses of both individual projects andgeneral policy. The logical outcome of this processwill be what the authors call an “ecosystem supportallocation” – the amount of water necessary to sus-tain the ecosystem benefits. Human diversionaryuses will not be permitted to encroach upon this allo-cation. The authors strongly emphasize that theirapproach does not entail sacrificing economic health,or even economic growth. To the contrary, economicforces would realign with the production and enjoy-ment of sustainable benefits, and jobs would follow.

Postel and Richter highlight some encouragingdevelopments. South Africa has established a two-part “reserve” that protects allocations of water forbasic human needs and ecosystem preservation.Australia has put a cap on diversions from the large,multi-state Murray-Darling river basin. Theauthors examine the existing policy mechanismsavailable to develop similar protection schemes tobenefit river systems in the U.S., particularly in theSoutheast, where some of the most stressed systemsare located. Reading carefully, however, one discov-ers that the South African and Australian endeavorsare still in the early stages and have not yet proventhat politicians will actually take real water frompowerful, entrenched economic interests in overal-located river basins. Nonetheless, the possibilitiesare intriguing.

Rivers for Life is a work of advocacy as much aseconomics or science, and the authors make a goodcase for the common-sense idea of consideringecosystem benefits in cost/benefit analyses. In doingso they make some assumptions that are based onpolicy and not economics or science. For instance,they seem to assume that allocating water to protectendangered species is the most rational viewpoint.That is not necessarily so. It is no less rational toplace a higher value on flood control or hydropowerthan on a certain species of fish or plant. Rememberthat when the U.S. Supreme Court enjoined comple-tion of the Tellico Dam because of the endangeredsnail darter, Congress quickly amended theEndangered Species Act to allow the dam to be com-pleted anyway. Whether that outcome is good or notis debatable, but it is debatable.

In short, values are subjective. For those whosevalues correspond to the authors’, Rivers of Life pro-vides powerful ammunition for arguing for thepreservation of ecosystem values. For others, thebook may encourage fresh ways of thinking aboutwater management issues and prove that the ecolog-ical perspective has significant merit. By advocatinga more thorough consideration of all costs and bene-fits, and calling for careful consideration of futureneeds, the authors have made a valuable contribu-tion to the ongoing national and international dis-cussion of water resource management policy.


Rivers of Life: Managing Water for People and NatureSandra Postel and Brian Richter (Island Press 2003)

Stephanie Showalter, J.D., M.S.E.L.

Written for a broad audience of policy-makers, stu-dents, lawyers, and users, The National WildlifeRefuges: Coordinating a Conservation System throughLaw contains a comprehensive overview of the lawthat governs the management of wildlife refuges.While the majority of readers are unlikely to bene-fit from a cover to cover read, the wealth of infor-mation available in this compact source is essentialfor anyone connected to wildlife refuges.

For lawyers and law students interested in theinner workings of the national wildlife refuge sys-tem, The National Wildlife Refuges analyzes, indetail, how the 1997 Improvement Act manifestswhat Fischman calls “the five hallmarks of organiclegislation”: purpose statements, designated uses,comprehensive planning, substantive manage-ment criteria, and public participation. TheNational Wildlife Refuges provides private citizensinterested in their refuges with a guide to how andwhen opportunities are present for public partici-pation in refuge management decisions – frompre-decisional opportunities to administrative andjudicial review. More importantly for futureresearch and policy efforts, throughout the bookFischman identifies and analyzes the weaknessesin current FWS policy.

Fischman also covers some of the more obscureaspects of wildlife refuge management, includingacquisition of water rights and oil and gas develop-ment. Many wildlife refuges in the west encountermanagement problems during dry years. For exam-ple, the Klamath Basin refuges are ranked fourthin the order of priority for water from the KlamathRiver, behind endangered species, tribal trustresponsibilities, and farmers. A 1994 surveyrevealed only 98 out of 226 western refugesresponding had adequate existing water rights evenin average years. Fischman examines the duty ofthe Fish and Wildlife Service, established in the1997 Improvement Act, to acquire water rightsneeded for refuge purposes.

Finally, an entirechapter is devotedto the Alaska Re-fuges. The debateover oil drilling inthe Alaska Na-tional WildlifeRefuge (ANWR)is not the onlyissue unique towildlife refuges in Alaska.While refuge system laws and regulations applyequally to the Alaska refuges, special rules apply incertain areas. Fischman discusses the AlaskanNative Claims Settlement Act, ANWR, and subsis-tence hunting and fishing allowances for ruralAlaskan residents, which are provided nowhereelse in the System.

Fischman’s choice to reduce internal citationsand footnotes increases the readability and acces-sibility of The National Wildlife Refuges. Numerousreferences to the legislative history of the variousacts and internal agency documents provideglimpses of the driving forces behind the System’sevolution. The appendices alone are worth thepurchase. Fischman provides a chronology ofrefuge system development, the text of theNational Wildlife Refuge System AdministrationAct of 1966 and the National Wildlife Im-provement Act of 1997, and the official establish-ment dates for the 540 named national wildliferefuges in existence as of September 30, 2002. AsFischman’s book arrived on my desk during a par-ticularly trying period of research on coastalwildlife refuges, I can personally vouch for theutility of these appendices. This comprehensiveand extensively researched book should be theentry point for anyone with a question regardingthe governance of wildlife refuges.

Robert L. Fischman is professor at law and Louis F.Niezer Faculty Fellow at Indiana University School ofLaw - Bloomington.


The National Wildlife Refuges: Coordinating aConservation System through Law

Robert L. Fischman (Island Press 2003)


International Law UpdateStephanie Showalter, J.D., M.S.E.L.

Below is a summary of the coastal- and marine-related international law developments in 2003.

Establishment of Endeavor Hydrothermal Vents Area March 2003The Endeavor Hydrothermal Vents Area was the first marine protected area established under the CanadaOceans Act. The Endeavor Vents are located 250 kilometers southwest of Vancouver Island.

Establishment of a Supplementary Fund for Compensation for Oil Pollution Damage May 2003The International Maritime Organization (IMO) adopted a Protocol establishing an International OilPollution Compensation Supplementary Fund. The Protocol supplements the compensation already availableunder the 1992 Protocols to the International Convention on Civil Liability for Oil Pollution Damage and theInternational Convention on the Establishment of an International Fund for Compensation for Oil PollutionDamages. The amount of compensation available for one incident is limited to just over a billion. The Protocolapplies to oil pollution damage in the territory and the Exclusive Economic Zone of a Contracting Party andwill enter into force three months after ratification by at least eight States.

Protocol on Strategic Environmental Assessment to the Espoo Convention May 2003On May 21, 2003, thirty-three countries signed a new protocol to the Convention on Environmental ImpactAssessment in a Transboundary Context (“Espoo Convention”).

Antigua Convention June 2003The parties to the Inter-American Tropical Tuna Commission adopted the Antigua Convention on June 27,2003 “to ensure the long-term conservation and sustainable use of the fish stocks covered by [the]Convention.” Most significantly, the Antigua Convention instructs Commission members to apply the pre-cautionary approach as described in the Code of Conduct and/or the 1995 U.N. Fish Stocks Agreement.Members are instructed to “be more cautious when information is uncertain, unreliable, or inadequate” andthe inadequacy of scientific information shall not be put forth as a reason for failing to adopt measures. TheConvention is open for signature from November 14, 2003 to December 31, 2004 and will enter into force fif-teen months after ratification by seven contracting parties.

Resolution on the Conservation of Tuna in the Eastern Pacific Ocean Oct. 2003During the 71st Meeting of the Inter-American Tropical Tuna Commission, the Commission adoptedConservation Resolution C-03-12 recommending the closure of the purse-seine tuna fishery in the EasternPacific Ocean in December 2003 and from August 1, 2004 to September 11, 2004.

Framework Convention for the Protection of the Marine Environmental of the Caspian Sea Nov. 2003On November 3, 2003, a framework agreement proposed by the United Nations’s Caspian EnvironmentProgram to protect the Caspian Sea and its resources was signed by Azerbaijan, Iran, Kazakhstan, Russia, andTurkmenistan. The agreement seeks to reduce the amount of sewage and industrial waste flowing into the Sea.

Canada Ratifies Law of the Sea Convention Nov. 2003Canada became the 144th party to the United Nations Convention on the Law of the Sea (UNCLOS). Canadaalso ratified the 1994 Agreement relating to the Implementation of Part XI of UNCLOS, which addresses deepseabed mining. In the ratification agreement, Canada declared that disputes arising under the Convention willbe submitted to arbitration or to the International Tribunal for the Law of the Sea.

Water disputes are no longer restricted to the arid West. Virginia and Maryland took their fight over thePotomac River all the way to the Supreme Court. The battle between Alabama, Florida, and Georgia isknown as the Tri-State Water Wars. Now water shortages in Michigan have spurned the adoption of twonew groundwater laws. One instructs the Michigan Departments of Environmental Protection andAgriculture to investigate and help resolve water disputes. The other requires the identification of majorwater users and the mapping of the state’s aquifers in an attempt to avoid future disputes.

The Ninth Circuit Court of Appeals recently held that the stocking of salmon inTustumena Lake in the Kenai Wildlife Refuge violates the Wilderness Act. TheU.S. Fish and Wildlife Service stocks the lake to improve the catch of Cook Inletfisherman. The court determined that the project was a commercial enterprise andtherefore banned by the Wilderness Act, despite the non-detrimental nature of the pro-ject.

Alaska is leasing158 sites along the state’s southcentral and southeastern coast for mariculture. After pay-ing a one-time bid fee ($200 minimum), lessees will pay $250 for the first acre and $100 for each addi-tional acre per year to conduct mariculture activities. Among the many sites are eight intertidal sites inPrince William Sound which will no longer be accessible to the public wishing to harvest wild clams. Itremains to be seen whether traditional harvesters in Prince William Sound will challenge this newrestriction on their access to a public resource.

The Bush Administration recently announced that it would not issue a newrule in response to the 2001 decision of the U.S. Supreme Court in Solid

Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers. Withthe majority of federal courts narrowly interpreting SWANCC, the agen-cies determined that a new rule was unnecessary. The EPA was also con-

cerned about the impact of a regulatory change in the definition ofprotected waters on the Clean Water Act as a whole. The agencieswill continue to rely on a January 2003 guidance document whenfaced with jurisdiction determinations.

Around the Globe . . .

Australia recently upped the stakes in its battle against illegal poachingin Antarctica. The Australian custom service has acquired a vesselarmed with a deck-mounted .50 caliber machine gun. Australia antici-pates the year-round use of the vessel, which will be crewed bymariners, fisheries officers, and armed customs agents. Such weaponryshould make poachers ponder the question: which is more important -that hold full of Chilean Sea Bass or your life?


Sea Grant Law CenterKinard Hall, Wing E, Room 262P.O. Box 1848University, MS 38677-1848

THE SANDBAR

THE SANDBAR is a result of research sponsored inpart by the National Oceanic and AtmosphericAdministration, U.S. Department of Commerce,under Grant Number NA16RG2258, the SeaGrant Law Center, Mississippi Law ResearchInstitute, and University of Mississippi LawCenter. The U.S. Government and the Sea GrantCollege Program are authorized to produce anddistribute reprints notwithstanding any copy-right notation that may appear hereon. Theviews expressed herein are those of the authorsand do not necessarily reflect the views ofNOAA or any of its sub-agencies. Graphics by©Corel Gallery, © Nova Development Corp.,and NOAA.

The University of Mississippicomplies with all applicable lawsregarding affirmative action andequal opportunity in all its activi-ties and programs and does notdiscriminate against anyone pro-tected by law because of age, creed,

color, national origin, race, religion, sex, handicap, veter-an or other status.

MASGP 03-010-04This publication is printed on recycled paper.

Editor: Stephanie Showalter, J.D., M.S.E.L.

Publication Design: Waurene Roberson

Research Associates: Shannon McGhee, 2L, University of GeorgiaJennifer Lindsey, 3L, University of

Mississippi

Contributor: Josh Clemons, M.S., J.D.

THE SANDBAR is a quar-terly publication reportingon legal issues affectingthe U.S. oceans and coasts.I t s goa l i s to increaseawareness and under-standing of coastal prob-lems and issues. To sub-scribe to THE SANDBAR,contact: the Sea Grant Law

Center, Kinard Hall, Wing E, Room 262, P.O. Box 1848,University, MS, 38677-1848, phone: (662) 915-7775, orcontact us via e-mail at: [email protected] . We wel-come suggestions for topics you would like to see cov-ered in THE SANDBAR.

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