Question: What happens afterwards, when an MCA ends?

Answer: Marine Conservation Agreements may be granted for perpetuity, but when they are not, MCAs may be renewed, allowed to expire, followed by a formal MPA designation, or in some cases the areas subject to MCAs may be withdrawn from use, exchanged for other areas, or purchased directly.

If Marine Conservation Agreements (MCAs) are not perpetual, they will eventually come to an end and MCA project managers must determine what their options are regarding the future protection of the relevant lands, resources, or ecosystem services. The table below summarizes some of the options organizations have after their MCAs end. The likelihood of implementing the options, the level of control over sites that each option affords organizations, and the level of protection each option affords over sites all vary.

Renew MCA

There is a high likelihood that organizations can renew their MCAs when they approach the end of the initial term. Renewing MCAs maintains the organizations' control over sites with a medium to high level of protection (subject to the MCA provisions).

MCAs may have built-in renewal clauses which allow for one or a series of additional years of encumbrance. It is not uncommon, for example, for MCAs to be issued for an initial period of time (five or ten years) with two or three renewal options of five to ten years each. If explicit renewal clauses are not built into MCAs, they may often be amended or extended for additional years. The total duration of any one MCA issued by government agencies is normally limited by law or policy and a series of renewals or amendments usually cannot surpass the total time limit. Also, conditions of MCAs are often renegotiated during MCA renewals and amendments. The MCA is considered "open" at this point. As a result, MCA features in addition to the duration may change. Under normal circumstances, when applicable laws and policies allow for MCA renewals or amendments, projects in good standing are successful in extending the duration of their MCAs.

When MCAs come to the end of their total, legal allowable duration and renewals or amendments are not possible, it is often possible to enter into a completely new MCA. Technically, this option differs from the renewal option in that the entire MCA process is normally undertaken again. MCA application, project design and planning, conditions, duration, and other facets of the MCA are all once again under consideration and subject to change. MCA project managers are usually not guaranteed the right to enter into a new MCA, but if they are in good standing, new MCAs are often granted. It is rare for MCA project managers, who are in good standing and have invested substantial amounts of time and money into sites, to be denied new MCAs for the same sites. While it is rare, it is not impossible. Competing applications for use of the same site may complicate new MCAs. Some U.S. states have established criteria for evaluating competing applications while other states give preference to former MCAs.

Allow MCAs to Expire

Shoreline aquaculture, Taylor Shellfish Farms. Photo courtesy Washington DNR.

Organizations may let MCAs expire on their own terms. While this is almost always an option at the end of MCAs, allowing them to expire without any follow-up activities (such as those described below) leaves sites unprotected and conservation organizations with no control over sites.

Upon expiration of an MCA, several possibilities exist: 1) another entity may use the site for conservation or compatible purposes; 2) another entity may use the site for non-conservation or incompatible purposes; or 3) the site may not be used again and is left fallow, but is used for transient purposes (such as public recreation and navigation). In the best possible scenario, another conservation organization occupies the site and protects it. Less desirable is to leave the site fallow and hope that it is not disturbed. Even less desirable is that the site is degraded by subsequent human activities.

Short of other conservation organizations assuming responsibilities for former MCA sites, there are several follow-up options that afford protection of sites, resources, and ecosystem services. Potential options include designation of sites as marine protected areas, withdrawing sites from use, exchanging fee-simple interests in sites for other sites, or directly acquiring fee-simple interests in sites.

Designate as Marine Protected Area

Sites that were subject to MCAs may be good candidates for designation as formal Marine Protected Areas (MPAs). However, the certainty of MPA designation and subsequent level of NGO-control over sites are often low. Also, the effective level protection created by MPA designation is uncertain.

In general, MPAs are considered some type of special management or protective designation. However, exactly how MPAs are defined and what they accomplish are subject to interpretation and also subject to the applicable laws under which they are designated. MPA designation can potentially be applied to publicly-owned or privately-owned sites, but there are numerous issues to be aware of with this approach.

There are countless types of MPAs, some are more protective than others, some are applied by local governments while others are applied by state and federal governments, and some are regulatory while others are proprietary in nature. The MPA designation process can be complicated, controversial, and time-consuming. In addition, while conservation organizations may be involved in the MPA designation process, government entities are normally the lead decision-makers for MPA management planning and site management. As a result, conservation decisions for former MCA sites would be made by MPA-establishing public agencies.

On the positive side, MPA designation can bring much-needed attention, funding, and focus to sites that otherwise may not receive it. In the United States, the National Oceanic and Atmospheric Administration's National MPA Center has developed a framework for a national system of MPAs. Internationally, MPAs have received much attention and support from organizations such as the World Conservation Union's World Commission on Protected Areas Marine Program. A searchable database on MPAs throughout the world can be accessed through the MPA Global site. In addition, The Nature Conservancy has been working to build resiliency into MPA design and management through its Reef Resilience efforts.

Withdraw from Use

The long-term protective benefits of withdrawing areas from use (when this is possible) are not clear. The likelihood of withdrawing sites from use and the resultant levels of protection are uncertain as processes and criteria for withdrawals vary widely. Additionally, the level of control over sites that NGOs achieve through withdrawals is likely low.

If MCAs are allowed to expire, in some cases it may be possible to petition the grantors (the entities that granted the MCAs or other proprietary authorizations) to withdraw sites from use. In theory, withdrawing sites from use effectively prevents areas from being used again for purposes that will degrade the sites. Withdrawals from use are not possible in all locations and under all circumstances. The potential to withdraw any particular site form use will require specific investigation. Generally though, when withdrawals are possible, there are minimal but varied substantive and procedural requirements for petitioning the withdrawal, which stands in stark contrast to most MPA designation processes.

Still, as with MPAs, withdrawals from use involve several important issues that should be considered. Withdrawals from use may be subject to the sole discretion of proprietary agencies with little oversight by other entities or the public. As such, areas withdrawn from use may or may not be managed and protected over the short or long-term as specified in withdrawal orders. Also, while withdrawn status can be in perpetuity, withdrawal orders can often be rescinded as quickly as they can be established, so protection can be temporary at best.

Exchange another Area

Under some circumstances, fee-simple ownership interests in lands and resources lying within ocean and coastal waters may be exchanged for other lands and resources. While there is a low likelihood that exchanges are possible, when possible, NGOs can achieve high levels of control and protection of sites.

Conservation organizations may want to consider trying to exchange other sites they own in fee-simple for former MCA sites when they want to further ensure the former MCA sites' protection. The ability to exchange one site for another is dependent on several variables, not the least of which are the applicable laws, policies, and practices of the authorizing entities. If the authorizing entity is a public agency, there are often substantive criteria that must be met, such as resulting net gains of public assets. If the authorizing entity is a private party, then exchanges are often possible with little to no established processes or criteria.

Purchase Fee-simple

Even more unusual than exchanges are outright fee-simple purchases of former MCA sites. If the sites are privately-owned, then outright purchases are often an option. If the sites are publicly-owned, however, outright purchases are less common (even though fee-simple purchases of publicly-owned ocean and coastal assets were common in the past in the United States). In some rare cases today, fee-simple purchases of publicly-owned lands and resources lying within ocean and coastal waters are still possible. In most of these limited situations, fee-simple purchases will give conservation organizations high levels of control and protection over sites. When fee-simple purchases are possible, specific procedural requirements and substantive criteria usually must be met. In many cases, specific legislative authorization is also required.

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