Would NOAA's proposed Mallows Bay-Potomac River National Marine Sanctuary take fishing-regulation power away from Virginia and Maryland's joint Potomac River Fisheries Commission?

Plain-English summary

The Commissioner of the Virginia Marine Resources Commission asked a sensible question about a federal proposal. NOAA proposed to designate part of the Potomac River as the Mallows Bay-Potomac River National Marine Sanctuary, primarily to protect historic shipwrecks (including the largest WWI-era "ghost fleet" of wooden steamships built for the U.S. Emergency Fleet, plus shipwrecks potentially dating to the American Revolution). Fishermen and others worried the designation might interfere with the regulatory authority of the Potomac River Fisheries Commission, the joint Virginia-Maryland body created by the 1958 Potomac River Compact (codified at Va. Code Ann. § 28.2-1001).

Attorney General Mark R. Herring laid out three answers.

(1) NOAA does have statutory authority to regulate fishing in marine sanctuaries under the National Marine Sanctuaries Act. Congress designed the NMSA to provide comprehensive coordinated management, and where existing regulatory efforts are inadequate, NMSA permits NOAA to supplement or displace them.

(2) But NOAA is not proposing to exercise that authority for the Mallows Bay sanctuary. The proposed regulations apply only to "historical resources," defined narrowly to cover sites, structures, and objects of historical/cultural/archaeological/paleontological significance. Other sanctuaries protect resources like fish, marine mammals, and seabirds; this sanctuary's resource list deliberately excludes them. NOAA also did not list fishing among the activities subject to regulation in the designation document, which is the prerequisite for direct regulation. The AG noted the practical caveat that fishing gear could damage historical resources and incur strict liability under 16 U.S.C. § 1443 (citing United States v. Great Lakes Dredge & Dock Co., 259 F.3d 1300, 1304 (11th Cir. 2001)).

(3) NOAA cannot enter into a binding contract not to exercise its authority in the future. As with any agency, NOAA has only the authority Congress delegated, and an agreement to abandon a core statutory function would not be authorized (Michigan v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001)). However, Maryland holds an effective veto. The designation document can only be amended through the same process used to create it: public comment, hearing, congressional and gubernatorial review. Because the entire sanctuary is in Maryland waters, the governor of Maryland could veto any proposed amendment that would regulate fishing by certifying it unacceptable to the Secretary of Commerce (16 U.S.C. § 1434(b)(1)). That state-veto check is structural and cannot be removed by contract.

Currency note

This opinion was issued in 2017. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Mallows Bay sanctuary was formally designated in 2019. The NMSA and implementing regulations have been amended periodically. The Potomac River Fisheries Commission and its compact arrangements continue. Anyone analyzing current fishing regulation in the sanctuary should consult the final designation documents and current statutory text.

Background and statutory framework

The Potomac River Fisheries Commission was created by the Potomac River Compact of 1958, an interstate agreement between Maryland and Virginia approved by Congress in 1962. The Commission has authority to regulate the taking of fish and shellfish in designated tidal waters of the Potomac River, with enforcement by both states' law enforcement agencies and adjudication in either state's courts.

The National Marine Sanctuaries Act, 16 U.S.C. §§ 1431-1445c-1, gives NOAA authority to designate marine sanctuaries to protect areas of conservation, historical, scientific, cultural, or other national significance. Congress recognized that resource-specific legislation had failed adequately to protect such areas and enacted NMSA "to provide authority for comprehensive and coordinated conservation and management of [sanctuaries], and activities affecting them, in a manner which complements existing regulatory authorities" (16 U.S.C. § 1431(b)(2)). NOAA can promulgate fishing regulations applicable in sanctuaries (16 U.S.C. § 1434(a)(5)).

NOAA can designate "any discrete area of the marine environment as a national marine sanctuary" (16 U.S.C. § 1433(a)). "Marine environment" includes coastal waters (16 U.S.C. § 1432(3)), and "coastal waters" includes waters with measurable seawater content adjacent to shorelines (16 U.S.C. § 1453(3)). The Potomac waters at the proposed sanctuary location have measurable salinity, so they qualify.

NOAA's proposed Potomac Sanctuary regulations protect only "historical resources," defined at 15 C.F.R. § 922.3 as resources of historical, cultural, archaeological, or paleontological significance. NOAA's proposed regulations prohibit moving, removing, recovering, altering, destroying, possessing, or otherwise injuring historical resources, plus damaging signs or markers and obstructing enforcement investigations. Fish, marine mammals, and seabirds (protected resources in other sanctuaries) are not designated sanctuary resources here.

Procedurally, NMSA requires the designation document to list "the types of activities that will be subject to regulation" (16 U.S.C. § 1434(a)(4)). NOAA's proposal listed only damage to sanctuary resources, sanctuary property, and obstruction of enforcement. Commercial and recreational fishing were not listed, so NOAA cannot regulate them under the proposed designation. To add them later, NOAA would have to follow the same procedures used to make the original designation, including public comment, a public hearing in the sanctuary area, and submission to congressional committees and the affected state governor.

The Maryland veto: 16 U.S.C. § 1434(b)(1) provides that a designation (or any of its terms) "shall not take effect in the area of the sanctuary lying within the seaward boundary of the State" if the governor of the affected state certifies it unacceptable. Because the entire Mallows Bay sanctuary lies in Maryland waters, the Maryland governor can veto any amendment to add fishing regulation.

On the limits of cooperative agreements, NOAA has authority to enter into cooperative agreements with states under 16 U.S.C. § 1442(a), but only "to aid in carrying out the purposes and policies set forth in [NMSA]." An agreement in which NOAA bargained away its regulatory authority would be inconsistent with NMSA's policy of comprehensive management and would be unauthorized and unenforceable. The Commission can enter cooperative agreements describing each party's understanding of fishing regulation, but cannot insist NOAA cede its statutory authority.

Fishing gear caveat: while NOAA does not propose to regulate fishing, some fishing gear (anchored or bottom-disturbing) could damage historical resources. The strict-liability provisions of NMSA (16 U.S.C. § 1443, applied in United States v. Great Lakes Dredge & Dock Co., 259 F.3d 1300 (11th Cir. 2001)) would impose liability for damage to sanctuary resources. NOAA's preferred response, per its draft environmental impact statement, is fisherman education about resource locations.

Common questions

Q: Will the Mallows Bay sanctuary designation take away the Potomac River Fisheries Commission's authority to regulate fishing?
A: The AG concluded no. NOAA has the legal authority to regulate fishing in marine sanctuaries, but the Mallows Bay proposal does not exercise that authority and does not include fishing among the activities subject to regulation.

Q: Could NOAA add fishing regulation later?
A: Not without going through the same designation process again, which requires public comment, a public hearing, and submission to the Maryland governor for potential veto.

Q: Does Maryland really have a veto?
A: Yes. Under 16 U.S.C. § 1434(b)(1), the governor of an affected state can certify a designation or any of its terms unacceptable, and that designation or term doesn't take effect in state waters. Since Mallows Bay is entirely in Maryland waters, the Maryland governor can block any fishing-regulation amendment.

Q: Could NOAA sign a contract promising never to regulate fishing here?
A: No. NOAA can only enter agreements consistent with NMSA's purposes. An agreement to abandon a core statutory function would be unauthorized.

Q: Could a fisherman be punished for damaging a sanctuary resource accidentally?
A: Yes. NMSA imposes strict liability for damage to sanctuary resources (16 U.S.C. § 1443, as held in Great Lakes Dredge & Dock). NOAA's preferred response is education and sign placement to help fishermen avoid the resources.

Q: What is the Potomac River Fisheries Commission?
A: A joint Virginia-Maryland body created by the 1958 Potomac River Compact (codified at Va. Code Ann. § 28.2-1001), with authority to regulate the taking of fish and shellfish in the tidal Potomac. Both states enforce its regulations, and both states' courts have jurisdiction.

Citations and references

Virginia statutes:

• Va. Code Ann. § 28.2-1001 (Potomac River Compact of 1958)
• Va. Code Ann. § 2.2-505 (AG advisory opinion authority)

Federal statutes and regulations:

• 16 U.S.C. §§ 1431 to 1445c-1 (National Marine Sanctuaries Act)
• 16 U.S.C. § 1432 (definitions)
• 16 U.S.C. § 1433 (sanctuary designation)
• 16 U.S.C. § 1434 (designation procedures and state veto)
• 16 U.S.C. § 1442 (cooperative agreements)
• 16 U.S.C. § 1443 (strict liability for sanctuary resource damage)
• 16 U.S.C. § 1453 (Coastal Zone Management Act definitions)
• 15 C.F.R. § 922.3 (NOAA definitions)
• Potomac River Compact of 1958, Pub. L. No. 87-783, 76 Stat. 797 (1962)

Cases:

• United States v. Great Lakes Dredge & Dock Co., 259 F.3d 1300 (11th Cir. 2001)
• Michigan v. EPA, 268 F.3d 1075 (D.C. Cir. 2001)

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2017/17-007-Bull---marine-sanctuary-v.5.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General

Mark R. Herring
Attorney General

202 North Ninth Street
Richmond, Virginia 23219

March 15, 2017

The Honorable John M.R. Bull
Commissioner, Virginia Marine Resources Commission
2600 Washington Avenue, Third Floor
Newport News, Virginia 23607

Dear Commissioner Bull:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You inquire about the effect of the designation of an area of the Potomac River as a national marine sanctuary. Specifically, you ask whether the sanctuary designation could displace the authority of the Potomac River Fisheries Commission (the "Commission") to regulate fisheries in the area; if so, whether the proposal does, in fact, do so; and, if the proposal does not displace the Commission's authority, whether the federal government could be bound by an agreement not to do so in the future.

Background

The National Oceanic and Atmospheric Administration ("NOAA") has proposed to designate a part of the Potomac River as the Mallows Bay-Potomac River National Marine Sanctuary (the "Potomac Sanctuary").[1] By designating the area as a sanctuary, NOAA aims to protect the cultural heritage resources found in the area-principally, historic shipwrecks potentially dating back to the American Revolution and the remains of the largest "ghost fleet" of wooden steamships built for the United States Emergency Fleet during World War I.[2] Fishermen and other interested parties have expressed concern that the proposal will interfere with the regulatory authority of the Potomac River Fisheries Commission ("Commission") over fisheries in the river.

The Commission was created by the Potomac River Compact of 1958, an agreement between the State of Maryland and the Commonwealth approved by Congress in 1962.[3] It has the authority to regulate the taking of fish and shellfish in designated tidal waters of the Potomac River.[4] The law enforcement agencies of both Maryland and Virginia are responsible for the enforcement of the Commission's regulations, and each state's courts have jurisdiction to hear cases involving a regulatory violation.[5]

Applicable Law and Discussion

The National Marine Sanctuaries Act[6] ("NMSA") establishes NOAA's authority to designate marine sanctuaries. NMSA enables NOAA to provide for more stringent fishing regulations in a sanctuary than are provided by existing authorities. In this instance, however, NOAA is not proposing to exercise that authority. Although NOAA cannot enter into a binding agreement to restrict its ability to exercise that authority in the future, NMSA establishes certain checks on NOAA that could stop any future effort to regulate fishing.

1. NOAA may regulate fishing within a national marine sanctuary.

NOAA has the authority to regulate fishing activity in an area it properly designates as a sanctuary.[7] When it enacted NMSA, Congress recognized that certain areas of the marine environment possess important conservation, historical, scientific, cultural, or other qualities that give them national significance.[8] It further recognized that the kind of resource-specific legislation that had been enacted up to that time had failed to adequately protect those resources.[9] To remedy that problem, Congress enacted NMSA "to provide authority for comprehensive and coordinated conservation and management of [sanctuaries], and activities affecting them, in a manner which complements existing regulatory authorities."[10] In other words, NMSA was designed to provide for a single federal agency to coordinate the efforts of other regulators and, if the efforts of those regulators were insufficient, to provide comprehensive regulations to manage all activities in, and features of, a marine sanctuary, including recreational and commercial fishing.[11] Thus, NMSA provides NOAA with the authority to supplement or displace the Commission's fishing regulations in the Potomac Sanctuary.

2. NOAA is not proposing to exercise that authority in the Potomac Sanctuary.

While NOAA has the authority to regulate fishing in a sanctuary, it has not proposed to exercise that authority in the Potomac Sanctuary and has not taken the necessary predicate steps to do so. In fact, NOAA has disclaimed any intent to regulate fishing at all.[12] The proposed regulations for the Potomac Sanctuary only apply to historical resources,[13] which are defined as "any resource possessing historical, cultural, archaeological or paleontological significance, including sites, contextual information, structures, districts, and objects significantly associated with or representative of earlier people, cultures, maritime heritage, and human activities and events."[14] Notably, other resources included as protected resources in other sanctuaries, such as fish, marine mammals, and seabirds, are not defined as sanctuary resources in the Potomac Sanctuary.[15] Because the proposed regulations apply only to designated historical resources,[16] fishing, which does not involve exploiting historical resources, is not regulated.[17]

Furthermore, NOAA is not proposing to take the necessary predicate steps to directly regulate fishing in the Potomac Sanctuary. Under NMSA, NOAA must include, among other things not relevant here, the types of activities that will be subject to regulation in the proposed sanctuary in the designation document that establishes the sanctuary.[18] The proposal for the designation document establishing the Potomac Sanctuary does not list either commercial or recreational fishing among the activities that will be subject to regulation.[19]

3. NOAA cannot enter into a binding agreement not to regulate fisheries, but Maryland has effective checks on NOAA's authority to stop any future effort to do so.

NOAA cannot be stopped from exercising its authority over fisheries in the future through a binding agreement, but it would be unable to regulate fishing in the Potomac Sanctuary in the future absent Maryland's concurrence. As with any other administrative agency, NOAA has only the authority delegated to it by Congress.[20] While NMSA authorizes NOAA to enter into cooperative agreements and other contracts with, among other entities, states and regional agencies, such agreements must be entered into to aid in carrying out the purposes and policies set forth in NMSA.[21] Given that one of the policies of NMSA is to provide for comprehensive management of sanctuaries and the activities occurring in them,[22] an agreement in which the entity responsible for managing the Potomac Sanctuary agrees not to exercise its authority to regulate a particular activity occurring therein would not be authorized and would be unenforceable. Of course, the Commission could still enter into a cooperative agreement with NOAA to set forth each party's understanding of the proper regulation of fishing in the Potomac Sanctuary, but it may not insist that NOAA bargain away its regulatory authority in that agreement.

This inability to contractually limit NOAA's authority over fishing must be considered in the larger legal context. Specifically, should NOAA decide in the future to regulate fishing within the Potomac Sanctuary, it would need the concurrence of Maryland to proceed. As noted above, NOAA has not included commercial or recreational fishing as activities subject to regulation in the designation document.[23] It cannot regulate those activities until they are added to the designation document, and the designation document cannot be amended without going through the same process that NOAA went through to promulgate it in the first place.[24] Thus, the modification would have to be published for public comment, a public hearing would have to be held in the area of the Potomac Sanctuary, and the proposal would have to be submitted to certain committees of Congress and the governor of Maryland.[25] Because the Potomac Sanctuary is entirely within Maryland waters, the governor of Maryland could eliminate any proposed amendment to the designation document to provide for NOAA regulation of fishing by certifying to the Secretary of Commerce that the proposed amendment is unacceptable.[26]

Conclusion

Accordingly, it is my opinion that NOAA has the authority to regulate fishing in the Potomac Sanctuary but has not chosen to exercise that authority in this instance. While NOAA cannot enter into a binding agreement in which it bargains away its authority, the Governor of Maryland is empowered under NMSA to effectively veto any attempt by NOAA to directly regulate fishing in the Potomac Sanctuary.

With kindest regards, I am

Very truly yours,

Mark R. Herring
Attorney General

[1] Notice of Proposed Rulemaking to Establish Mallows-Bay Potomac River National Marine Sanctuary, 82 Fed. Reg. 2254, 2255 (Jan. 9, 2017) (to be codified at 15 C.F.R. pt. 922) [hereinafter Notice of Proposed Sanctuary].

[2] Id. at 2255-56.

[3] VA. CODE ANN. § 28.2-1001, art. I, § 1 (2016); Potomac River Compact of 1958, Pub. L. No. 87-783, 76 Stat. 797 (1962).

[4] VA. CODE ANN. § 28.2-1001, art. II & art. III, § 2.

[5] Section 28.2-1001, art. V, §§ 1, 3.

[6] See generally 16 U.S.C. §§ 1431 to 1445c-1 (LexisNexis, current through Pub. L. No. 114-328).

[7] There is little doubt that the Potomac Sanctuary is an area that may be designated as a sanctuary. Under NMSA, NOAA "may designate any discrete area of the marine environment as a national marine sanctuary ...." 16 U.S.C. § 1433(a). The term "marine environment" is defined as including, among other things, coastal waters. Id. § 1432(3). The term "coastal waters," in turn, is defined in the Coastal Zone Management Act as "those waters, adjacent to the shorelines, which contain a measurable quantity or percentage of seawater, including, but not limited to, sounds, bays, lagoons, bayous, ponds, and estuaries." Id. § 1453(3). A water quality monitoring station near the downstream extremity of NOAA's preferred boundary reflects a mean surface water salinity ranging between 1 part per thousand ("ppt") to 4 ppt. MARYLAND DEPARTMENT OF NATURAL RESOURCES, Fixed Station Monthly Monitoring Data, Lower Potomac River - Maryland Point, EYES ON THE BAY, available at http://eyesonthebay.dnr.maryland.gov/bay_cond/bay_cond.cfm?param=sal&station=RET22 (last visited Feb. 28, 2017). A monitoring station near the upstream limit of the Potomac Sanctuary shows a much lower, albeit still measurable, mean salinity. MARYLAND DEPARTMENT OF NATURAL RESOURCES, Fixed Station Monthly Monitoring Data, Lower Potomac River - Quantico, EYES ON THE BAY, available at http://eyesonthebay.dnr.maryland.gov/bay_cond/bay_cond.cfm?param=sal&station=TF24 (last visited Feb. 28, 2017). Thus, the waters that will ultimately comprise the Potomac Sanctuary are coastal waters subject to designation under NMSA.

[8] 16 U.S.C. § 1431(a)(2).

[9] Id. § 1431(a)(3).

[10] Id. § 1431(b)(2).

[11] See id. § 1434(a)(5) (providing NOAA with the ability to promulgate fishing regulations applicable in sanctuaries in cooperation with other fishery management authorities).

[12] Notice of Proposed Sanctuary, supra note 1, at 2268 ("Fishing in the Sanctuary shall not be regulated as part of the Sanctuary management regime authorized by the Act.").

[13] Id. at 2264.

[14] 15 C.F.R. § 922.3 (2017).

[15] Notice of Proposed Sanctuary, supra note 1, at 2261-62, 64.

[16] Id. at 2264 (forbidding the "moving, removing, recovering, altering, destroying, possessing, or otherwise injuring" historical resources within the Potomac Sanctuary). The proposed regulations would also prohibit attempting to do any of the prohibited actions toward historical resources, damaging or displacing any signs or other markers related to the sanctuary, and obstructing investigations related to the enforcement of the regulations or of NMSA. Id. at 2264-65.

[17] Of course, this does not mean that commercial and recreational fishing will not be impacted at all by the designation of the Potomac Sanctuary. While NOAA has said that it does not expect the designation to impact any commercial or recreational fishing activity, id. at 2261, some fishing gear is anchored to, or disturbs, submerged land and could damage the historical resources in the river. A fisherman is unlikely to use such gear in such a way that it would damage a historical resource for fear of damaging or destroying his gear. Nevertheless, a fisherman may mistakenly do so and, in so doing, violate the strict liability provisions of NMSA. See United States v. Great Lakes Dredge & Dock Co., 259 F.3d 1300, 1304 (11th Cir. 2001) ("In this case, the United States seeks damages from defendants for a violation of § 1443 of the NMSA, which imposes strict liability for damage or injury to any sanctuary resource."). As NOAA notes, perhaps the best way to limit the danger of such an occurrence is to provide education to fishermen in the area so that they can avoid the protected resources. OFFICE OF NATIONAL MARINE SANCTUARIES, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, Proposed Mallows Bay-Potomac River National Marine Sanctuary Designation: Draft Environmental Impact Statement and Draft Management Plan, 32 (2016), available at http://sanctuaries.noaa.gov/mallows-bay/mallows-proposed-deis-dmp.pdf.

[18] 16 U.S.C. § 1434(a)(4).

[19] See Notice of Proposed Sanctuary, supra note 1, at 2268 (stating that the activities that will be subject to regulation in the Potomac Sanctuary are damaging sanctuary resources, damaging sanctuary property, and interfering with or otherwise obstructing an investigation or law enforcement measure in the Potomac Sanctuary).

[20] See Michigan v. EPA, 268 F.3d 1075, 1081 (D.C. Cir. 2001) ("Thus, if there is no statute conferring authority, a federal agency has none.").

[21] 16 U.S.C. § 1442(a).

[22] Id. § 1431(b)(2).

[23] See supra note 19 and accompanying text.

[24] 16 U.S.C. § 1434(a)(4) ("The terms of designation of a sanctuary shall include ... the types of activities that will be subject to regulations by [NOAA] to protect [the characteristics of the sanctuary]. The terms of the designation may be modified only by the same procedures by which the original designation is made.").

[25] Id. § 1434(a)(1), (3), (6), (b)(1).

[26] See id. § 1434(b)(1) ("The designation ... shall take effect and become final ... unless, in the case of a national marine sanctuary that is located partially or entirely within the seaward boundary of any State, the Governor affected certifies to the Secretary that the designation or any of its terms is unacceptable, in which case the designation or the unacceptable term shall not take effect in the area of the sanctuary lying within the seaward boundary of the State.").