1.2 Threats and Strategies

1. MCA Field Guide
2. MCA Field Guide Checklist
3. Phase 1: Feasibility Analysis Checklist
4. 1.1 Conservation targets are established
5. 1.2 Threats and strategies are determined
6. 1.3 Owners, managers, and users are known
7. 1.4 Laws and policies are supportive
8. 1.5 Organizational capacity is sufficient
9. 1.6 Stakeholders and their issues are identified
10. 1.7 Costs and financing are assessed
11. 1.8 Reporting has been completed

After conservation targets have been determined, organizations should consider whether threats to the targets can be abated by a Marine Conservation Agreement (MCA). What are the major threats to biodiversity in the area and how difficult will it be to address them with an MCA?  What conservation activities are required to reduce or eliminate the threats?

Identifying Threats

Clear methods and defined terms can help when identifying threats and determining which strategies are most needed to protect conservation targets at specific sites. The Nature Conservancy uses a systematic process called Conservation Action Planning to identify threats and strategies at sites. In addition, the World Conservation Union has developed standardized taxonomies of threats and actions that may be helpful to conservation organizations during site-specific planning activities. In general, threats to conservation targets come primarily in two forms: 1) current and future human activities; 2) current and future environmental conditions. Once the threats are determined for a particular area, practitioners must then determine if an MCA can help mitigate them.

Completing Boundary Surveys

In this sub-step, site-specific identification of human and environmental threats will have to be undertaken (see below). When this is the case, a boundary survey of the MCA project area may need to be conducted first (if not already completed) to ensure the threats identification is completed for the correct area. For more information on boundary surveys, see sub-step 1.1 Conservation Targets — Completing Boundary Surveys.

Human Threats

Ocean and coastal conservation targets can be negatively affected by a variety of human activities and structures, such as:

Fish dynamiting © Chumbe Island Coral Park Ltd. (CHICOP)

• Air pollution
• Aquaculture
• Collection of plants, animals or substrate
• Dredging of substrate
• Fishing
• Hunting
• Navigation
• Public use and access
• Over-water structures
• Shoreline hardening and development
• Utility and energy facilities
• Water pollution

As per sub-step 1.6 Stakeholders, practitioners should take time to research the governing laws, legislatively prescribed “values” of relevant public agencies, and social norms of the area. Many activities considered by conservation organizations to be threats—however valid—may represent core agency and social “values.” Perceived attacks on agency and social values can cripple an MCA proposal from the start. When this is the case, conservation organizations should be careful to describe threats in terms of specific undesirable (but correctable) practices and conservation actions, such as developing and applying best management practices.

Log storage © Washington State Department of Natural Resources

Environmental Threats

Formal Environmental Site Assessments (ESAs) can be used in areas targeted by MCAs that are potentially affected by pollution or contamination. ESAs may not be needed or desired under all circumstances, but project managers should be aware that pollution and contamination problems may exist and what they can do to address them. For example, the image to the right shows a log storage site that may appear innocuous, but that can lead to an accumulation of wood debris in intertidal areas, which creates habitat and pollution concerns.

ESAs, while usually not required by law, are undertaken on behalf of organizations acquiring interests in properties or resources. Whether an organization chooses to undertake an ESA depends on the amount of risk the organization is willing to assume as ESAs can reduce liabilities associated with sites. Organizations should consider consulting with an attorney to understand the applicable laws and regulations as well as how to mitigate risks. 

Environmental Site Assessments are undertaken prior to entering into MCAs to determine the baseline environmental conditions of a site. The environmental conditions of a site will reveal whether the site is contaminated in some way that could create clean-up liability concerns under national or local laws, such as the federal Comprehensive Environmental Response, Cleanup, and Liability Act (CERCLA) in the United States. Most often, the provisions of laws such as CERCLA make current landowners liable for prior owners' polluting activities.

Generally, formal ESAs conform to standards. Standards in the United States are set by the American Society for Testing and Materials (ASTM) and often take one of three forms: Transaction Screen, Phase 1, and/or Phase 2 (although several additional variations of ESAs exist). Depending on the size, location and historical use of the site and its surrounding area, one or more ESAs may be required.

Often, if a site has never been used for or exposed to industrial or other potentially contaminating uses and if the site is not adjacent to or near other sites that have been used for or exposed to industrial or other potentially contaminating uses, then a simple Transaction Screen may be all that is necessary. However, if either of these two circumstances exists, or if tidal or current flows affecting the property could transport offsite contaminants, then Phase 1 and Phase 2 ESA are usually necessary.  Numerous data sets feed into ESAs, including biological inventories, sediment and water quality sampling, historical use information, title search information, and state/federal data on hazardous materials, contamination, and pollution.

In the United States, ASTM-certified environmental professionals should be consulted to make ESA need determinations and to complete ESAs as per ASTM standards if organizations want to use the innocent landowner defense under CERCLA. The results of ESAs can affect the MCA transaction negotiations (i.e., indemnification warranties or land values).

Ocean and Coastal Issues: In marine waters, issues such as creosote pilings, wood debris, industrial and municipal outfalls, abandoned structures and vessels, pipelines, contaminated sediments, and other types of foreign materials may be present and create liability. The fluid environment of ocean and coastal areas facilitates the transportation of contaminants. It is common to find water quality and sediment issues in urbanized ocean and coastal areas. Due to the ability of contaminants to be transported by tidal and current influences and affect water quality and sediments on the project site, impacts from neighboring and/or regional contamination should be taken into account. Given the potential for environmental concerns, some form of ESA is recommended for most MCA projects.

Can an MCA abate the threats?

MCAs can be used to manage, exclude, or restrict activities and structures at specific sites or related to specific species and resources. Some measure of management, exclusion or restriction may be needed to protect priority species, habitats, resources, and ecological processes from current and future harm. However, management, exclusion or restriction may not be needed when current and future uses and activities are compatible with the conservation targets identified for the site or when off-site threats are the primary cause of the site's vulnerability. If protection of the conservation targets does not require elimination or reduction of current or future activities, special management actions, or partial restriction of specific uses, then an MCA may not be necessary.

Management and exclusivity can be achieved by different means (such as leases, licenses, permits, purchase and sale agreements, management agreements, and concessions) depending on who owns, manages or uses the lands and resources (see sub-step 1.3 Ownership, Management and Use), and what laws and policies apply to their management. Several variables, which must be considered on a case-by-case basis, apply to these mechanisms, such as:

• Some are common while others are uncommon
• Some provide a high level of protection while others provide minimal protection
• Some provide a great deal of legal certainty regarding the rights acquired or managed while others provide little certainty

When determining if MCAs can abate threats in specific areas, practitioners should beware of institutional values, especially in areas where there are strong concerns regarding locking up public lands. This manifests itself both in legislation and public agency reluctance to draw the ire of certain constituencies and legislators. For these reasons, the need for direct management and exclusivity should be closely examined and—when determined necessary and possible—not celebrated too exuberantly. The preponderance of such events can build resistance and resentment toward future MCA projects.

When might an be MCA be desired or required?

Conservation organizations may use MCAs to obtain or direct management control over sites (i.e., through the acquisition of proprietary rights, leasing or through management agreements) under several scenarios:

• Organizational requirements: Internal policies may require long-term protection.
• Public and member expectations: The general public and members of the conservation organization may expect that their support leads to guaranteed long-term protection of sites and projects.
• Funder requirements: Funders may not provide project money if the site does not have long-term protection guaranteed.
• Landowner and legal requirements: Laws and policies may require landowners to lease or sell a site if it is "occupied" to the extent that other parties are fully or partially excluded from the site and/or public resources are used by private entities. Also, public and private landowners may want to rid themselves of liability or long-term management responsibilities associated with the site or project. If the project success is in question, landowners may want conservation organizations to ensure the maintenance of the MCA site or the function of the project over the long-term.

Conservation activities that might trigger an MCA

Public or private landowners, managers and users may require organizations to enter into an MCA when conservation activities result in occupation of sites or inherently exclude (partially or fully) other potential users from sites. Such activities may include one or more of the following activities:

Inwater researchers. Photo courtesy Audubon California

• Installing, restoring and maintaining structures (including habitat structures such as oyster reefs)
• Preventing development
• Preventing or managing extraction of resources
• Restoring plants
• Undertaking scientific research
• Preventing or managing public uses

The following activities, undertaken alone, are less likely to exclude other potential users from sites but may still require some form of MCA:

• Reintroducing animals
• Remediating contaminated areas

The remaining activities, undertaken alone or together, are not likely to exclude other potential users of sites and thus not likely to require an MCA:

• Cleaning up debris
• Educating and collaborating with adjacent landowners
• Educating and outreach to the general public
• Planning
• Scientific monitoring

Excluding and managing activities at sites

Typical activities and structures that might be excluded or restricted from sites under an MCA include, but are not limited to:

Aquaculture. Photo courtesy The Nature Conservancy

• Aquaculture
• Commercial uses
• Navigation
• Non-water dependent uses
• Over-water structures
• Public access
• Recreation
• Resource extraction
• Shoreline development and armoring
• Transportation infrastructure
• Utility lines

Some of the above listed activities and structures may be more difficult to restrict than others (e.g., navigation). Site-specific circumstances as well as applicable laws and policies will ultimately determine what activities can be excluded, how they can be excluded, and to what degree.

Next Sub-step

After the conservation targets, threats and strategies have been determined, then the owners, managers and users of the area and resources must be identified.

Proceed to 1.3 Ownership, Management and Use

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