How do agencies manage ocean and coastal lands and resources?

Before venturing into a leasing or ownership project related to lands and resources within ocean and coastal waters, it is important to understand how those lands and resources are managed by the controlling authorities. However, understanding how the lands and resources are managed can be difficult because management structures are typically not uniform between and within states and countries. To complicate matters more, it can be common for agencies not to communicate or collaborate with one another.

This step in the toolkit provides a general management strategy overview while the Country Summaries and U.S. State Summaries provide specific, localized information about the management of ocean and coastal areas. Management of ocean and coastal lands and resources can be based on several different variables, such as:

• Regulatory Authorities
• Geographic Jurisdictions
• Resources
• Activities
• Proprietary Authorities

Regulatory Authorities

By far, most people think of regulatory authorities when they think of ocean and coastal management. This regulatory management refers to governments' application of the rule of law, as codified or developed in constitutions, statutes, regulations, policies, case law, or common law. Regulatory authorities can apply to all or a subset of geographic areas (publicly and privately-owned), resources, and activities within the jurisdictional boundaries of governmental agencies.

Geographic Jurisdictions

The geographic areas within which agencies exert their regulatory authority is normally bounded by political borders (such as counties, states, and countries) in addition to some aspect related to their authority, such as boundaries related to the environment (i.e., air pollution, water pollution), natural resources (i.e., fish, wildlife), or human activities (i.e., recreation, commerce). Geographic jurisdictions can also be based on reasoned or random subdivisions or aggregations of the above.

Kelp forest. ©Mike Beck/TNC

Resources

Resources within ocean and coastal environments consist of, but are not limited to:

• Sediments and sand
• Flora (attached and unattached to the sediment);
• Fauna (attached and unattached to the sediment);
• Water quality and quantity;
• Minerals, oil and gas; and
• Air and water space/rights.

The regulatory management of these resources is often undertaken by several different agencies within any given state or country. This fragmented management structure can be difficult to discern and can also lead to lengthened review times and processes for proposed activities within ocean and coastal environments.

Activities

There are numerous activities which take place within ocean and coastal areas. Regulatory management jurisdictions and authorities can be based on these activities, such as navigation, recreation, development, access, commerce, aquaculture, subsistence harvest, cultural/spiritual practices, and energy production, among others. Often, more than one agency exerts control over the same activity (for example, fish and wildlife agencies, agricultural agencies, health agencies, and natural resource agencies all may play roles within one state in approving shellfish aquaculture activities).

Proprietary Authority

Local, state, and federal units of government may act as regulatory agencies (as described above) or they may act as proprietary landowners. When activities take place on publicly-owned lands and resources lying within ocean and coastal waters, agencies acting as landowners may exert control over the activities. The confusing aspect of some governments' proprietary actions is that it may seem duplicative of regulatory actions, with different agencies requiring different authorizations for the same activities.

Marina, La Paz, Mexico. ©TNC

The ability to use publicly-owned lands and resources varies greatly. In some cases, ocean and coastal public lands are open to transient and commercial uses without specific authorizations or payments being required. In other cases, public lands are closed to all uses. Most lands and resources lying within ocean and coastal waters fall somewhere in between these two extremes.

Publicly-owned lands and resources lying within ocean and coastal waters can often be accessed for transient public uses (such as recreation and navigation) for free and without specific authorization. These same lands and resources are also often accessible to private entities for limited commercial purposes (such as charter boat fishing, commercial fishing, tour boats, SCUBA diving tours) for free and without specific authorization. Public and private entities have come to expect to use public lands and resources for these types of activities.

However, once publicly-owned lands or resources are used or occupied to the exclusion of others or when substantial financial benefits (derived from public assets) are accrued to users, then specific authorizations and payments are often required. Such proprietary authorizations to use and encumber publicly-owned lands and resources may take the form of leases, licenses, easements, permits, and assents, among other things. There may be one-time fees, annual payments, or no fees associated with the authorizations. The authorizations may be limited in duration from days to months to years. In the past, authorizations were often perpetual, but this practice has been eliminated in most states within the United States. Long-term authorizations (over 50 years in some cases) are not unusual though. Common uses which often require explicit authorization include marinas, piers, shipping facilities, utility lines, and energy platforms.

The point at which specific authorizations and payments are required by public owners differs greatly and is sometimes not clear. Indeed, in some cases units of government have not exerted extensive proprietary control over their ocean and coastal lands and resources. As a result, public and private entities have and continue to encumber the lands and resources for free.

As a general matter, if conservation organizations want to exert direct, long-term management control over publicly-owned lands and resources lying within ocean and coastal waters, they must receive some type of proprietary authorization (such as a lease) from the public landowner. In most cases, it is unlikely that public agencies will sell fee-title rights to lands and resources in public ownership. While this practice was common in the past, it is rare today. As such, if conservation organizations want to own lands and resources lying with ocean and coastal waters in fee-title, they must identify existing private owners of such resources.