Application of Natural Resource Laws Nearly all natural resource and planning statutes apply to national security activities at sea in some fashion How the law applies often depends on where the activity is occurring

Natural Resource Laws Marine Mammal Protection Act (MMPA) Prohibits “take” of marine mammals; broad prohibition that extends out through the high seas No extraterritorial application No military exemption Definition of “harassment” elevates threshold of “take” for “military readiness” activities, but science not yet developed to fully benefit from this standard National Defense Exemption (NDE) than can be issued by SECDEF Endangered Species Act (ESA) Prohibits takes of endangered and threatened species with similar jurisdictional reach as MMPA SECDEF may issue exemption for individual activity after consultation with Sec of Commerce or Interior Magnuson-Stevens Fishery Conservation and Management Act (MSFCMA) Primary concern is impacts to essential fish habitat National Marine Sanctuaries Act (NMSA) Generally prohibits injury to sanctuaries DoD activities managed differently depending on the sanctuary

Planning Statutes and EOs National Environmental Policy Act (NEPA) Extraterritorial reach debated since NEPA enacted Case law generally has held that NEPA does not apply extraterritorially, but some cases have diverged from this precedent to varying degrees Question surrounding NEPA’s reach resulted in issuance of EO 12114 Agency practices vary Coastal Zone Management Act (CZMA) Have to ensure activities consistent with state enforceable policies Primary concern for at-sea activities are migratory resources National Historic Preservation Act (NHPA) Impacts to historic or cultural properties in state waters