In 2000 President Bill Clinton signed Executive Order 13178 designating the Northwestern Hawaiian Islands Coral Reef Ecosystem Reserve and instructing the commerce secretary to initiate the process to designate the reserve as a National Marine Sanctuary pursuant to the National Marine Sanctuaries Act (NMSA). In 2006 President George W. Bush issued Proclamation 8471 establishing the Papahanaumakuakea Marine National Monument pursuant to the Antiquities Act, the boundaries of which were expanded in 2016 by President Barack Obama in Proclamation 9478.
The process of establishing a National Marine Sanctuary in the Northwestern Hawaiian Islands is now underway, and the public will be given the opportunity to comment on the draft management plan and draft environmental impact statement early next year. It is important to understand that the proposed National Marine Sanctuary will not replace the Monument but rather, co-exist with it. Most importantly it would authorize the Office of National Marine Sanctuaries under the NMSA to carry out the following needed management actions it currently cannot undertake under the Antiquities Act:
>> Assess civil penalties for regulation violations and for damage to sanctuary resources that occur due to actions within and from outside sanctuary boundaries. Penalties collected will be used primarily for funding resource protection efforts.
>> Access federal Natural Resource Damage Assessment funds to recover costs associated with responding to and remediating the destruction, loss or injury (or potential destruction, loss or injury) to sanctuary resources.
>> Enter directly into agreements with other agencies.
>> Establish a mechanism to charge fees for commercial Special Ocean Use permits. This includes charging for permitting staff time, cost of vessel hull inspections, cost of providing resource monitors, etc. Revenue from these fees will stay with the site.
As the Star-Advertiser recently reported, deep sea mining of polymetallic nodules in the Clarion-Clipperton Fracture Zone southeast of Hawaii is imminent and could negatively impact the archipelago’s ecosystems and fisheries. The power of the NMSA could help prevent some of that impact.
At full capacity, mining companies expect to dredge thousands of square miles a year in the zone. Nodule collection vehicles would scrape through the top five inches of the ocean floor and ships above will draw thousands of pounds of sediment through hoses to the surface, remove the nodules and then flush the rest back into the water. Some of that slurry will contain toxins such as mercury and lead, which could poison the surrounding ocean for hundreds of miles and impact pelagic fish stocks. The rest of the slurry will drift in the currents until it settles on benthic ecosystems near and far, including those in Hawaii to the northwest.
The zone is located between 5 degrees and 20 degrees North across 1.7 million square miles between Hawaii and Mexico — wider than the continental United States. The Hawaiian archipelago is located between 19.9 degrees and 28.4 degrees North. The North Pacific equatorial current travels west between 8 degrees and 18 degrees North. The system of eddies that transport marine organisms and their eggs and larvae northwest up the Hawaiian chain is highly likely to transport some of the deep sea mining slurry as well.
Even though the U.S. is not a party to the U.N. Law of the Sea Treaty, it does have the authority under the NMSA, but not under the Antiquities Act, to take actions that will mitigate some of the impact of deep sea mining on U.S. waters.
NOAA can draft rules that limit the participation of U.S. nationals and corporations either registered in the U.S. or controlled by U.S. nationals to research only in the zone on the basis that commercial nodule mining is highly likely to generate pollution prohibited by U.S. laws and multiple international agreements. These include ones the U.S. is a party to or recognizes as customary international law, if it is likely to damage the marine resources of the Hawaiian archipelago and violates the precautionary principle.
Kailua resident Linda M.B. Paul is international director of Earthtrust’s endangered species program.
