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Submerged Cultural Resource Laws and Policies

Critique of Changes in the Florida Keys National Marine Sanctuary Management Plan

Environmental Issues and Pollution Claims

David Avellar Neblett in the news and quoted by the Miami Herald - February 27, 2008

Associated Press Worldstream - Spain's Claim Override June 10th 2008

 

 

 

 

 

 

 

 

 

 

 

 

Submerged Cultural Resource Laws and Policies
David Neblett

When I began to study submerged cultural resource legislation and management I became enlightened by the truths that laws and enforcement are only a small part of the solution to save our cultural heritage from people that are only interested with the financial gain from antiquities. Modern Americans unlike many other cultures around the world, "Including native American Indians" do not seem to place great importance on preserving artifacts relating to their history. This may be due to the fact that "Americans" have only occupied north America for a short time and do not feel ancestral ties to the past as many people with ancient culture and history. This lack of respect for artifacts of great scientific and cultural potential but little monetary value is a direct result of our greedy capitalistic society.

There is currently much debate as to the best policies to help the public see the importance of Marine Archeological evidence, end the black market trade in Antiquities, and find some criteria for describing a wreck or artifact as being "historical" or worthy of protection. Much of this debate is derived from the fact that there seems to be little if any collective agreement even from professional Marine Archeologist as to what types of actions or legislation best suits this extensive issue. Not only do the treasure hunters, and art dealers oppose much of the current laws but many recreational divers and common laymen do not see the importance in the precise nature of Archeological research. This ignorance can only be changed trough the proper education of students and the public as a whole.

There have been laws for the protection of archeological resources in the U.S. for over a century. In the Early 1900's many collectors and certain historians realized the great profit and historical significance in many artifacts that were being found all over the country and especially in the west. The federal government soon realized that something must be done or much of Native American and early colonial history would be lost as mantle pieces in rich homes. The Antiquities Act of 1906, provided for the formation of national monuments and the issuance of permits to insure regulation as dealing with archeological excavations. This act focused on three areas of importance: criminal punishments for the destruction of artifacts; to allow for the formation of historic and scientific national monuments; and to allow for the establishment of permit procedures for the examination and excavation of archeological sites. This act requires the secretaries of three federal departments to regulate this act. This was the first legislation dealing with cultural resources, and while it was not a very effective deterrent, it began the long legal process of saving our past. "The overall enforcement record for the Antiquities Act from 1906 to 1979 is 18 convictions, $4,000 in fines, and two 90-day jail sentences." (Jones, p25) Since this time many protection laws have developed within broader context of Archeological Resources.

These laws have become increasingly stringent of criminals and have focused on the sites and artifacts as nonrenewable cultural resources. The need for new laws became increasingly more apparent and the Society for American Archeology drafted prototype legislation and fought to get congressional support. The Archeological Resource protection act (ARPA) was signed into law by president Jimmy Carter on October 31, 1979, and has been amended many times by different agencies since then. The ARPA is found in the land use and conservation legislation, and is a very versatile civil law tool. Their is a strong criminal statute, and the "ARPA can also be a catalyst for education and the interaction of interest groups to preserve and protect archeological resources."(McAllister, p31). These laws have saved much historical evidence but are just the tip of the iceberg for a much larger conservation issue.

These laws did change awareness of the importance of cultural resources, but many of these laws do not effect Archeological resources found underwater or on private lands. The location and previous ownership is very important to obtain ownership and protection for historic sites. Many states have a different zones of management control depending on the bodies of water by which they reside, and over the years there has been increased legislation in federally owned or controlled seabeds and resources therein.

Before legislation was devised for SCRs all wrecks were dealt with through Admiralty law. This allowed salvage companies to sue for ownership of wrecks, so they could excavate and sell any artifacts they might plunder. Some legislation has been designed to help protect underwater resources, and legislation has been enacted to transfer from Admiralty law to state enforced laws. The federal Abandon shipwreck act of 1987 gives states the title to historic shipwrecks within their jurisdiction and can issue permits to regulate salvage. This act also provides for historical wreck definition; a wreck that is fifty or more years old, and the final guidelines suggest many strategies to encourage public use and understanding of SCRs.

Through the Department of the Interior the National Parks Service has come up with many guidelines and suggestions that will help protect SCRs and increase public awareness of these resources. A wealth of good information can be gleamed from the Abandoned Shipwreck Act Guidelines, but this document only suggest these courses of action to states to put into law. Much of the information dealing with the public and education about SCRs is over looked by states and many of these guidelines are never followed.

Their are many very good guidelines in the Abandoned Shipwreck Act some of the Acts findings include; G. Providing public access to Shipwrecks: Access to publicly owned shipwrecks by the public is beneficial for tourism, public enjoyment and appreciation, and preservation, as well as for recreation.

  1. 1 Guarantee recreational exploration of publicly owned shipwreck sites; At a minimum, any person should be able to freely and without permit dive on, inspect, study, explore, measure, record, fish at, or otherwise use and enjoy.
  2. 2 Establish lists of shipwrecks having recreational value; These list should note shipwrecks location depth and historical significance.
  3. 3 Facilitate public access to shipwrecks; Recreational values should be facilitated though the placement of marker buoys and anchor moorings and through the distribution of information at dive shops and marinas. H. Interpreting Shipwreck sites: Interpretation of publicly owned shipwrecks help increase the publics knowledge and understanding of our nations maritime history and application for shipwrecks and their preservation. 1 Present information on the vessel's history and the shipwreck's various values and uses; Interpretive efforts should strive to present to the public information about a vessel's construction, type, characteristics, age, use history, significance in history. 2 Disseminate information on shipwrecks projects through publications, lectures, exhibits, and professional papers;
    The results of shipwreck projects should be presented in professional reports and journals as well as in non-technical, popular publications. Lectures, videos, slide shows, and exhibits on shipwreck projects, maritime history, underwater archaeology, and opportunities for sport divers should be made available. 3 Build models of vessels: Models of intact shipwrecks should be made and exhibited to provide detailed, small scale orientation and interpretation for divers and non-divers.
  4. 4 Include interpretive material in underwater parks, and preserves: The creation of underwater trails at shipwreck sites. Sites and noteworthy features should be marked with permanent signs. Signs also should be placed on mooring buoys along trails. In addition, a site map and pamphlet should be prepared for individual shipwreck sites.
  5. 5 Encourage public and private interest groups to dissimulate information on shipwreck activities; Public and private museums and visitor centers should be encouraged to provide lectures, slide shows, videos, and exhibits.
  6. 6 Require permittees, licensees, and contractors to disseminate information about recovery activities at historic shipwrecks: A) Make presentations on the results of the recovery activity and archeological findings at professional meetings and in public forums. B) Prepare scientific and non-technical, popular publications; and C) To the extent possible, make artifacts and other materials recovered from the shipwreck available for future study, public interpretation and exhibition.

I Establish volunteer programs: Establishing organized volunteer programs that include sport divers, and other interested parties in shipwreck management activities.

  1. Use volunteers in shipwreck projects; Dive clubs, dive shops, dive boat operators, and individual sport divers frequently are willing to volunteer their diving skills or donate the use of their vessels or equipment.
  2. Maintain lists of volunteers; Associations, and organizations that have indicated an interest in volunteering their services and equipment in shipwreck survey, mapping, and research projects should be assembled and maintained.
  3. Distribute information on shipwreck projects to interested parties; Information on proposed shipwreck projects routinely should be distributed to sport divers, dive clubs and dive shops, and other businesses.
  4. Ensure that volunteers are properly trained and supervised; Divers should be encouraged to complete standardized diver specialty certification courses.
  5. Cooperate with the private sector in designing and teaching archeological methods specialty courses for sport divers; Introductory courses should provide background in archival research, survey methods, site mapping, illustration, photography, diagnostic measurement skills. In addition, they should teach divers nondestructive preservation oriented behavior and describe State and Federal law.
  6. Recognize private sector contributions to shipwreck discovery, research and preservation; Persons who find and report the discovery of previously unknown shipwrecks, who volunteer their skills or who donate their vessels should be recognized for their contributions to shipwreck discovery; A) Naming the shipwreck site after the person that finds it; B) Issuing certificates or plaques; C) Naming discoverers, volunteers and donors in museum exhibits, newspaper and magazine coverage, and publication.

This is a great plan to help involve the public and build more interest by the public, but how many of above suggestions have been implemented? I am sorry to say not enough. I have been a diver in Florida all my life and I have never seen a; map, pamphlet, plaque, volunteer group, or project information on any historic shipwrecks in a states which contains hundreds.

Treasure hunting lawyers have found many loopholes in the past with Admiralty law, and still seem to be able to undermine present regulations. Much of the laws concerning SCRs were never designed to encompass management of the state owned seabed by Federal agencies, or to establish laws witch protect all sorts of Artifacts and their trade worldwide. "Today treasure hunts are promoted on Wall Street and the Vancouver Stock Exchange. There investors include some of the wealthiest men in the world. What were are seeing today is an assault on antiquities by an industry, not by a bunch of small time adventurers."(Throckmorton. p8).

The huge amounts of money that is poured into the treasure hunting outfits is due directly to the profit that can be made for the sales of the antiquities excavated. Many treasurer hunters think that Marine sites, especially wrecks can bring huge profits and are easy to loot under faulty laws. Much emphasis in the media and public dealing with historic wrecks focus on treasure hunters like Mel Fisher and their fortune in gold and jewels, not on the hard working Archeologist that finds tremendous historical significance in that same site.

Salvagers have been around as long as there has been precious cargo that has found its way to the sea floor, and the blackmarket has been there just as long to buy and sell these artifacts . The large salvage companies of today show little respect for cultural resources and only work to make a profit and to distribute Archeological evidence to the highest bidder. The tremendous work and space required to conserve, store and exhibit historic artifacts for the public and professionals to view presents just as many obstacles as overcoming the publics lust for gold.

This salvage boom began in Florida in the early sixties with the advent of SCUBA, and the discovery of many shallow wrecks including the discovery of the 1715 plate fleet off of Vero beach. Many weekend hobbyist and large salvage firms came to Florida for this "Gold rush" including Mel Fisher. Soon the hunters moved to Key West and started searching for the Atocha, witch Mel Fisher eventually found and looted. He was a instant hero, and the American public gave these for- profit adventurers great acclaim. Fisher and his group destroyed the historical value of the wreck because of a rush to get to the gold and jewels, and the lack of any professionalism or Archeological excavation methods. Not only did Fisher destroy most of the historical parts of the wreck "Hull" but he also sold a great deal of these resources with no concern to there conservation or to their historical significance to a trained archeologist.

George Bass explains the importance of conservation and continuing study of artifacts decades after the excavation is complete. Bass tells that revolutionary discoveries of the Byzantine wreck excavated in 1961-64 were made during the eighties because of new technology and professionals spending great amounts of time conducting detailed studies. "Twenty nine years ago we did not have a paleobotanist surveying mud from each of the amphoras to determine what it had contained. Twenty nine years ago there were no neutron activated studies of pottery to tell us if there clays came from one or more sources. One good thing we did twenty nine years ago was to leave about 700 of the 900 amphoras on the seabed."(Bass, 11).

Because of the nature of the treasure hunters profit making attitude very little historical evidence will ever be gleamed through intensive study because the resources are scattered throughout the private sector. Florida policy toward underwater antiquities has been a 25% share of the loot to achieve a permit for excavation. This percent of the grubbing can be paid in the form of artifacts, and has usually been skewed to give the state the worst or least valuable artifacts. Peter Throckmorton discusses the treasure hunting problem in Florida and addresses the policy, "The state's 25 percent share from treasure hunting of the past 20 years is a collection worth only about five million today....

The collection has cost more than its value to maintain, especially if one includes the cost of continuing legal cases that have resulted from the states policy."(Throckmorton, p8) Many professionals feel that the states including Florida should set a museum system to educate the public, promote tourism, provide access for study, and to pay for the cost of conservation. The shift of focus should not be only saving the physical remains of past culture, but also through the education of the public. It is clear that more laws are need to protect historic resources. But it is not the laws alone that provide for the Conservation and study of our heritage.

More must be done in the professional field to find consensus over resource management policy. This consensus must consider a number of important factors: Cooperation between Archeologist, public, and Salvage; Black market trade in historic artifacts; Conservation and display for public and scientific study; ownership of artifacts; and preservation and definition of historic sites.

This may seem like a long list and an impossible dream, but every time another wreck is looted or lost another page in history vanishes forever. Cooperation between all parties evolved with historical resources is very important because at this point all parties seemed to be at great odds, and this does nothing for the plight of the resources that should be protected. More research and study should be done to help set standards to decide the balance between salvage and excavation, also regulations should be provided to assign professional supervision to even the most despicable treasure hunters.

I feel that a system of checks and balances would benefit all parties, and I'm sure that combining forces as difficult as it may appear will drastically affect the amount and quality of artifacts recovered. Toni Carrell address the balance that must be achieved between granting permits for salvage and excavation, and the looting and natural destruction of a wreck. Carrell addresses a wreck with a cargo of various goods including scotch and champagne that was publicly announced and a prime target for looters; "Soon after the wreck became widely known the cases of liquor disappeared....Yet the question remains unanswered : how much of the cargo and equipment would have remained if salvage had not been permitted?"(Carrell p4).

Here it seems that science seems to gain from salvage because little evidence and poor records are better than leaving no historical evidence at all. There would be no need to protect Archeological resources if there was no monetary value placed on artifacts of historic importance. The only reason there is a treasure hunting and looting going on is because of profit or more realistically expected profit. "As long as there is a market, there are unscrupulous individuals who will continue to destroy irreplaceable resources to feed the market.

The way to stop the destruction of resources is to stop the consumption of theses endangered resources." (Cockrell p 13) If greater importance was placed on the need to do scientific investigation and historical and cultural studies, more people dealing with antiquities would realize the great injustice they are doing to mankind by buying goods off the black market or keeping them from professional research. Many collectors and even a number of museums are guilty of unscrupulous actions, and deny study of their collections.

Laws must be enacted and better steps must be taken to try to identify artifacts so that collectors and museums could only obtain antiquities that are identified and numbered. This would provide a catalog of artifacts, and provide a method of the location of a particular artifact so that it might be later studied. Most professionals would not object if a particular artifact went to a museum or even private hands if the Archeologist was sure the artifact was properly conserved and he had as much time to study the object as needed and could retrieve the object on request for further study.

The need to keep Archeologist in charge of artifacts not only has to due with extensive study but also with the physical and exhibitor nature of its conservation. Only a professional can judge the stability of an artifact in a terrestrial environment, and can judge its true historic nature. Here again education should be the main concern and this education should include the public though exhibition. The public attitudes toward Archeology and resource protection is a very important factor, and professional archeologist along with treasure hunters should realize that all people have a right to view and understand their cultural heritage.

At present most projects divert funds and resources to store artifacts, but few see the importance and cost effective nature of loot displayed in some type of museum setting. Many states and even private enterprise would profit or at least cut the incredible cost of excavation and conservation by the adoption of a museum policy. Florida 25% collection of treasure from permits on state owned sites cost more than its value to conserve, store and maintain. "If Florida had used state money, and invested 10 million dollars in two great maritime museums back in the 1960's the state would be nearly half a billion dollars richer each year...

It could even be argued that individuals and corporations who wanted to do legitimate work in searching for and excavating shipwrecks that collaborated with the state, would have profited." (Throckmorton, p) Not only does the public gain from the exhibition and education, but also these museums provide profit to help finance projects and excavations that without funding would slip away. This policy would attract more attention to Marine Archeology, and increase funding would lead to more archeological projects and provide more reason to be a marine Archeologist not a treasure hunter.

There must be a shift of the profit emphasis of artifacts to deal only within the constrained boundaries of museums. "Several companies are now investigating financing archeological projects that will result in museums, and building resorts around them so they acquire long-term profit from the visitors attracted by the museum."(Thorkmorton, p7) For the above polices to become reality one must concentrate on the ownership of the artifacts. This is a crucial issue because it deals with the trade in artifacts and use of those artifacts to exhibit to the public. With a emphasis on profit from museum visitation instead of from sales, more artifacts especially those of great historical or public interest will end up on exhibit or under study. This would give states and museum curators more reason to try to get choice items out of private collections and into their new exhibits.

Many states such as Florida could ask for more than a 25% share of the loot if agreement could be made to the allocation of future profits. This could induce more joint ventures between the state and salvers with a more professional approach, and really fulfill the need for education to sell important artifacts. A system can be devised as stated earlier that would allow a professional the right to conserve, study, record and even sell pieces that are no longer considered of historic value, and that must go into storage. The Florida state museum has in its possession about 20 thousand silver coins, some of these could possibly be sold and funds put toward more current projects. This system would include a catalog and right of an Archeologist to request further study.

The location of an under water site is very important in protection and management because it not only dictates ownership of the wreck, but the physical constants of excavation or recreational diving and the relative depth and water conditions, "Viability, temperature, surge, currents, and toxins". The distance from the site to large populations of divers or interested parties along with access from land or sea are important as well. Most can not afford deep water salvage, and with the minimal policing force that tries to administer these laws, little notice or protection is given to very deep wrecks even if they are known.
The Titanic an the Central America are located in deep international waters and there seems to be very little if any regulation of the international seas. This situation can arise adversely too with the protecting of a shipwreck on dry land. The legality under federal and international laws also needs to be considered as to wreck ownership, permits, and regulations enforced by differing states or other agencies. This legality also deals with regulations and police control to insure the professionalism of the people and the quality of the work being done on the project.

The protection of the site must go on after work is done there to be assured that people will not plunder sites that have produced artifacts, and that the site will probably have to be re buried and records maintained to facilitate further study. More important than any one of the above criteria is educating the public and especially our youth. Many of the Abandoned Shipwreck Acts Guidelines need to be followed through but one major area of reform that was not mentioned in the guidelines was a change in states educational systems.

The state of California requires all third graders to complete a project on one of the Spanish Missions. These youngsters must make a model of the mission and complete a research paper. I feel that third graders in Florida would get great information have a good time and learn a great deal about SCRs and their importance to maritime history in the United States if they ad to do research on shipwrecks.

More time must be spent in classrooms to show importance of Archeologist and the part they play in putting together our heritage. Models, and interpretive pictures "Like the ones created for little salt springs", and other teaching aids should be made available to schools. Maritime history should be taught and protection of SCRs should be taught along with environmental issues. Even the museums promote pirates and treasure chests to our youth and not the importance of maritime history. These institutions need to realize the message they send to the public and create exhibitions that show the true nature of marine archeology.

It is clear that much more time and effort must be invested into thought and policy concerning submerged cultural resources protection. There has been a number of recent laws past to help save what is left of underwater cultural resources, but it is obvious that these laws do not fully promote scientific study and a public understanding of our cultural heritage. These laws do not fully or in some cases even partially protect the sites, and with current legislation the public and profession sector can only hope to fight over the most worthless 25% of the loot.

After witnessing the false sense of security that law provides you begin to look deeper into the issue about the blackmarket trade, and a general public apathy about archeology . "More stringent laws alone will not resolve this problem. Rather, an effective solution requires a major change in public opinion to increase and awareness and understanding of our archeological heritage."(Peccadillo, p9)

This lack of public awareness and bad media publicity is partly due to the fact there are such a great variance in opinions between treasure hunters and scientist. All the scientist realize the problems with current systems and many strive to change the system dealing with their particular expertise. This is great but thousands of different policies and changes made in a haphazard attempt to perfect this field of study still leave great disagreement between "experts" This inconsistency does not provide responsible direction for professional archeologist and certainly does not for the public who acclaim Mel Fisher as a master treasure hunter.

The archeological community must debate and as one consolidated unit express the need for increased scientific research and to begin to enact a complete change in the antiquities trade and exhibition policy away form antiquities sales to the education and display of the public cultural heritage. As previously explained this change has to be in the motive for Archaeological research to provide preservation of the past accomplished not by saving the physical remains of previous cultures, but though education of the value of learning about these cultures.

I hope to see the day when people remember George Bass as the father of underwater not Mel Fisher treasure looter in the history books.

Bibliography
Anuskiewicz, Richard J. Archaeological Resource Management on the Outer Continental Shelf, 1989 Bass, George F. After the diving is over, 1990 Cockrell, Wilburn A. Why Dr. Bass couldn't Convince Mr. Gumble: The Trouble with Treasure Revisited, again, 1990 Fowler, Jhon M. The Legal Structure for the Protection of Archaeological Resources, 1991 Halsey, John R Michigan's Great Lakes Shipwrecks: Save Salvage or Excavate? 1989 Keel,Bennie C. The Future of Protecting the Past, 1991 Lerner, Shereen Saving sites: Preservation and Education, 1991 McAllister, Martin E. Archaeological Resource Protection, 1992 Peccadillo, David L. Public Attitudes Towards Archaeological Resources and their Management, 1991 Stuart, George E. Conclusion: Working Together to Preserve Our Past, 1989 Throckmorton, Peter The economics of treasure hunting with real life comparisons, 1990 Waddell, Peter Reburial of the Red Bay Wreck as a Form of Preservation and Protection of the Historic Resource, 1994 Warren, Karen J. A Philosophical Perspective on the Ethics and Resolution of Cultural Property Issues, 1989







Critique of Changes in the Florida Keys National Marine Sanctuary Management Plan
David Neblett

The first draft of the Florida Keys National Marine Sanctuary (hereafter FKNMS) action plan during a public revision period. The final plan was submitted in September 1996, after considerable public and private interest input.

A very important aspect of Submerged Cultural Resource Management (hereafter SCRM) is public input and understanding the nature of the locals views to these resources. This revision policy is an integral part of designing a plan that will not only protect the resources, but to also include the needs of the communities which use these resources. It is regretful that the most interested parties in the Florida Keys seem to be Treasure Hunters, and misinformed sports divers.

This actions plan lost most of the hard line policies that were present in the draft version, and after this revision some of the most important regulatory devices were lost completely, "We deleted the regulatory provisions requiring a performance bond." (FKNMS web site). Performance bonds were created to make sure permitees had the financial backing to be able to complete the costly research, excavation and conservation of artifacts. These bonds were created to insure a proper quality of work done. These bonds made sure that inexperienced low budget fly by night operations could not destroy valuable cultural resources by excavating half a wreck site and running out of money so the rest of the site lies exposed with only half of the research done and at great peril to the remains.

Salvors must have sufficient interest in a site to not only damage a wreck enough to see if gold fills the hull, but to fulfill there requirement to properly research and excavate the wreck. The general liability insurance requirement " Which is now standard procedure for any government or state sponsored activity " was scraped, leaving wide loopholes in coverage for "Loss, or injury to Sanctuary resources arising out of permitted activities." I am glad that work was done to clarify the language used, but once again
"The requirement is more flexible" which does no good for nonrenewable resources. These regulations were taken out of the final draft because of the numbers and the political push of just the type of treasure hunters that this policy hoped to get rid of. It is so sad to see the way treasure hunters have influenced this Action plan when these are the people this plan needs to keep away from our cultural resources if we would like to gleam any scientific, or historic information from them. The draft plan included requirements that included public access and display. This seems like a perfectly normal request that the public should have a chance to view their past and better understand maritime or cultural history, but treasure hunters are very apposed to most public displays because they make no sale of artifacts and usually no money from the display.

NOAA has decided that artifacts due not need to be publicly displayed for all time. "Many would disagree" but instead "The regulations have therefore been modified to indicated that permittees must provided public access and "periodic" public display. (FKNMS web site) I think that a good deal of interpellation can go on about "periodic" display, and the revision also addresses curation techniques as needing to be within "standard museum practices." These curation practices should be consistent with the Federal Archaeological Program, but why are these outlines not stressed here when protection of resources is affected.

This regulation also provided for a permit to deaccession certain SCRs which creates problems artifacts records and research opportunities. Many treasure hunters rallied forces against many parts of the FKNMS plan that dealt with any regulations dealing directly with their business. They put out large amounts of propaganda against this plan and tried to show their views as reflecting the views of all of the Key's residence. Because the salvage industry and many treasure hunters are based in the Keys and have historically been located there, many of these treasure hunters have political clot and much support in the community. They have been the plan's adversaries since the beginning, and are the main reason why such a large percentage of the public do not truly understand the protection and science gleamed from the strict protection of SCRs.

Because of intense lobbying many of their goals were met, and much of this plans protection lost. They lobbied to have full rights to all survey -inventory permits and they pushed for remote sensing without a permit. This would enable large treasure companies to search all over the marine sanctuary with no regulations and they would have full rights to the information they obtained. I am all for public access and enabling multiple uses in the FKNMS and I realize that non-intrusive remote sensing does not harm SCRs, but allowing these treasure hunters to work without permits even in the initial stages compromises the function of NOAA and the protection of SCRs. If permits were required then the authorities would know how many, and what types of groups were interested in research. This would also allow NOAA to inform groups of the rules and regulations evolved with continued work.
The decrease of regulations is beneficial not for the public, or scientist but only to make the treasure hunters job easier. I feel it is truly ridiculous that an expedition doing underwater archaeological research in the FKNMS must have a professional Archaeologist in charge, but this Archaeologist need not be on site. How can NOAA expect by any stretch of the imagination that professional archaeology techniques and procedures will be followed when there is no archaeologist there to observe the every changing conditions of the site and artifacts to be raised, not to mention to check the methods used to properly recorded, recover, and conserve.

This professional Archaeologist is the only hope NOAA has to help protect the parks resources, and many times the only one that will enforce the plans policies on the treasure hungry looters. Why has NOAA and this revised plan taken power and emphasis away from the role that the Archaeologist plays in salvage and excavation. These revisions seem to label the professional Archaeologist as token scientist that just need to "oversee the operations.".
Treasure hunters also disliked the idea that a professional nautical conservator would be in charge of the artifacts conservation. How could any individual correctly conserve maritime artifacts "Which is a science in and of itself " unless they were trained in this science and have professional credentials. This requirement was poorly changed " to delete "professional" and insert "authorized" in order to provide more flexibility in the permit system."(web). If you needed medical attention you would assume that the doctor would not only have completed schooling, but had also completed requirements to reach professional status before the preformed critical procedures. I even look for professional certification for the mechanics that work on my car, but NOAA seems to feel that the conservators of nonrenewable resources do not need to be professional or have any type of certification.

Once again this plan witch was designed to implement proper procedures and strict regulations has become more "flexible" and much more lacks due to pressure from the treasure hunters. I could not find a historian, archaeologist, or a museum curator that would be in favor of relaxing these measures, because these people realize the importance of professionalism in the science of SCRM and in keeping and interoperating artifacts from our past. The final draft provided changes to the actual manipulation of the seabed, and removal of artifacts that could be found there.

This new modification provides for "Limited manual alteration of the sea bed, including handfanning."(Web) Where is the line to be drawn? Treasure hunters now have free reign to disturb the SCRs by any "Manual" means. This wording could include use of crowbars, and any other nonmechenized tools. This is exactly the type of assault on wreck sites and other important SCRs that this action plan must prevent. By using vague wording instead of harsh regulations this particular part of the reform seems to be the one that could be misused the most, and also cause the most damage to the resources. How much fanning or other alteration does NOAA consider to be too much? How do you police such a policy of partial excavation by limited means? Why does NOAA allow for even partial excavation on SCRs at all in a national marine sanctuary? These are many questions that I can not seem to answer.

One of the statement that NOAA put out on the web added insult to injury; "additional changes were made in the final regulations and plan in an effort to the permit management systems more pragmatic" it tries to show that this revised draft makes it much harder for treasure hunters to work in the FKNMS. None of these modifications make the permit system more "pragmatic" to the treasure salvors as the statement declares. They note: "The permit conditions may be more rigorous than the requirements of the admiralty court or the State contract system" (Web) This seems to be the one paragraph that just like the treasure hunters' propaganda in stressing the increasing government intervention and protection of SCRs.

It is a pity that the final draft wavered so much in the face of the popular treasure industry and threw out so many measures that are necessary for the protection and understanding of our cultural heritage. NOAA must feel a need to produce such a piece just to try to make some of the scientific community happy . Although with closer inspection it really does appear to be a farce. I respect the commitment that NOAA has made to listen to the public and the community that the sanctuary represents. I do however disagree with much of the leniency that the final guidelines have given to many areas directly associated with the treasure industry.

No mention is made about any other significant changes other than the ones described above. It is a shame that other ideas concerning public interaction with SCRs and access to sites were not brought up. We need more interaction with the public in the Keys to educate people as the effect that treasure hunting has on cultural resources. These people have to be shown the true nature of nonsceitific excavation, and the reasons that these regulations should be enforced.

People should learn of the responsablity they have to keep SCRs protected for future generations. NOAA itself must reexamine its policies toward the very industry that it was created to regulate, and hopefully in the future a compromise can be reached that does not compromise SCR protection or good science.







MARINE SANITATION DEVICES (MSD)
Environmental Issues and Pollution Claims

MSD regulations have been in effect for all vessels since January 30, 1980 pursuant to Marine Sanitation Device Standard--Establishment of Drinking Water Intake No Discharge Zone(s) Under Section 312(f)(4)(B) of the Clean Water Act; Final Rule.

Thus, according to the Clean Water Act a vessel that operates in U.S. territorial waters (generally, within three miles from shore) and has installed toilets must be equipped with an MSD. This includes fishing vessels, U.S. and foreign flag merchant vessels and recreational boats. The MSDs (Type I, Type II, Type III) are designed to meet different needs and effluent level requirements. Since portable toilets can be moved on and off a vessel, they are not considered installed toilets; therefore, vessels that have portable toilets are not subject to the MSD regulations.

Types of Marine Sanitation Devices

Sewage Treatment Device Vessel Length Standard
Type I- Flow-through device (maceration and disinfection) equal to or less than 65 feet in length The effluent produced must not have a fecal coliform bacteria count greater than 1000 per 100 milliliters and have no visible floating solids.
Type II- Flow-through device (maceration and disinfection) greater than 65 feet in length The effluent produced must not have a fecal coliform bacteria count greater than 200 per 100 milliliters and suspended solids not greater than 150 milligrams per liter.
Type III- Holding tank any length This MSD is designed to prevent the overboard discharge of treated or untreated sewage.
  • Type I MSDs rely on maceration and disinfection for treatment of the waste prior to its discharge into the water.
  • Type II MSDs are similar to the Type I; however, the Type II devices provide an advanced form of the same type of treatment and discharge wastes with lower fecal coliform counts and reduced suspended solids.
  • Type III MSDs are commonly called holding tanks because the sewage flushed from the marine head is deposited into a tank containing deodorizers and other chemicals. The contents of the holding tank are stored until it can be properly disposed of at a shore-side pump out facility.
  • (Type III MSDs can be equipped with a discharge option, usually called a Y-valve, which allows the boater to direct the sewage from the head either into the holding tank or directly overboard. Discharging the contents directly overboard is legal only outside the U.S. territorial waters which is 3 or more miles from shore.)

Florida Law Regarding MSDs
Florida has its own "more stringent" laws regarding MSDs. Florida Statute 327.53 Marine sanitation states:
(1) Every vessel 26 feet or more in length which has an enclosed cabin with berthing facilities shall, while on the waters of the state, be equipped with a toilet. On a vessel other than a houseboat, the toilet may be portable or permanently installed. Every permanently installed toilet shall be properly attached to the appropriate United States Coast Guard certified or labeled marine sanitation device.

(2) Every houseboat shall be equipped with at least one permanently installed toilet which shall be properly connected to a United States Coast Guard certified or labeled Type III marine sanitation device. If the toilet is simultaneously connected to both a Type III marine sanitation device and to another approved marine sanitation device, the valve or other mechanism selecting between the two marine sanitation devices shall be set to direct all sewage to the Type III marine sanitation device and, while the vessel is on the waters of the state, shall be locked or otherwise secured by the boat operator, so as to prevent resetting.

(3) Every floating structure that has an enclosed living space with berthing facilities, or working space with public access, must be equipped with a permanently installed toilet properly connected to a Type III marine sanitation device or permanently attached via plumbing to shoreside sewage disposal. No structure shall be plumbed so as to permit the discharge of sewage into the waters of the state.

(4)(a) Raw sewage shall not be discharged from any vessel, including houseboats, or any floating structure in Florida waters. The operator of any vessel which is plumbed so that a toilet may be flushed directly into the water or so that a holding tank may be emptied into the water shall, while the vessel is on the waters of the state, set the valve or other mechanism directing the sewage so as to prevent direct discharge and lock or otherwise secure the valve so as to prevent resetting.
(b) All waste from Type III marine sanitation devices shall be disposed in an approved sewage pump out facility.
(c) All waste from portable toilets shall be disposed in an approved waste reception facility.

(5) Every vessel owner, operator, and occupant shall comply with United States Coast Guard regulations pertaining to marine sanitation devices and with United States Environmental Protection Agency regulations pertaining to areas in which the discharge of sewage, treated or untreated, is prohibited.

MSD Requirements for HOUSEBOATS in Florida
The 'Florida Clean Vessel Act' requires all boats in state waters defined as 'HOUSEBOATS' to direct sewage to a Type III holding tank only. A 'HOUSEBOAT' is not permitted to discharge treated waste from any USCG approved Type I or II MSD overboard.

What is a Houseboat?
A 'HOUSEBOAT' is defined as: Any vessel used primarily as a residence (without using the vessel for transportation purposes) for a minimum of 21 days during any 30 day period in a county of this state, and this residential use of the vessel is to the preclusion of the use of the vessel as a means of transportation Section 327.02 (12).

In other words: If you use your boat as the equivalent of a floating condominium or a house (residence), the state defines by virtue of this type of use, the boat to be a 'HOUSEBOAT.'

A Boat is not a Houseboat:

  • When the boat is being used as a means of transportation.
  • If the boat is moved periodically or routinely within 21 days in a county of this state, the boat is not a 'HOUSEBOAT' although captain and crew may be living aboard.
  • If the boat crosses over a county line within 21 days, by virtue of using the boat as a means of transportation, it is not a 'HOUSEBOAT' although captain and crew may be living aboard.
  • If the boat is not lived on for 21 consecutive days during any 30 day period, whether or not it is used for frequent or infrequent transportation, it is not a 'HOUSEBOAT.

In other words: You or your crew may live aboard your boat in a county of this state but must use the boat as a means of transportation during every 21 day period to avoid 'HOUSEBOAT' classification. Movement of the boat during the course of recreational pursuits, to fuel docks or even to any random destination away from the anchorage or dock would indicate the boat is not just used primarily as a residence or as a residence or as a 'HOUSEBOAT' and make the boat exempt from 'HOUSEBOAT' classification.

Boats which are not defined as 'HOUSEBOATS' may legally use a USCG approved Type I or II Marine Sanitation Device instead of holding tank within the navigable waters of Florida with the exception of any Federal No Discharge Zones. Florida currently has one No Discharge Zone in Destin Harbor. Discharge of untreated waste is prohibited in all state waters and is a violation of both state and federal laws.

Additionally, boaters in South Florida and in other parts of the United States need to be aware that there are many no discharge zones, which strictly prohibit any discharge of human waste.

Violation of MSD Laws

(6)(a) A violation of this section is a noncriminal infraction as provided in s. 327.73. Each violation shall be a separate offense. The owner and operator of any vessel shall be jointly and severally liable for the civil penalty imposed pursuant to this section.
(b) All civil penalties imposed and collected pursuant to this section shall be deposited in the Marine Resources Conservation Trust Fund and shall be used: to implement, administer, and enforce this act; to construct, renovate, or operate pump out stations and waste reception facilities; and to conduct a program to educate vessel operators about the problem of human body waste discharges from vessels and inform them of the location of pump out stations and waste reception facilities.

(7) Any vessel or floating structure operated or occupied on the waters of the state in violation of this section is declared a nuisance and a hazard to public safety and health. The owner or operator of any vessel or floating structure cited for violating this section shall, within 30 days following the issuance of the citation, correct the violation for which the citation was issued or remove the vessel or floating structure from the waters of the state. If the violation is not corrected within the 30 days and the vessel or floating structure remains on the waters of the state in violation of this section, law enforcement officers charged with the enforcement of this chapter under s. 327.70 shall apply to the appropriate court in the county in which the vessel or floating structure is located, to order or otherwise cause the removal of such vessel or floating structure from the waters of the state at the owner's expense. If the owner cannot be found or otherwise fails to pay the removal costs, the provisions of s. 328.17 shall apply. If the proceeds under s. 328.17 are not sufficient to pay all removal costs, funds appropriated from the Marine Resources Conservation Trust Fund pursuant to paragraph (6)(b) or s. 328.72(16) may be used.

Florida Statutes 327.73 Noncriminal infractions.--

Any person cited for a violation of any such provision shall be deemed to be charged with a noncriminal infraction, shall be cited for such an infraction, and shall be cited to appear before the county court. The civil penalty for any such infraction is $50, except as otherwise provided in this section. Any person who fails to appear or otherwise properly respond to a uniform boating citation shall, in addition to the charge relating to the violation of the boating laws of this state, be charged with the offense of failing to respond to such citation and, upon conviction, be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. A written warning to this effect shall be provided at the time such uniform boating citation is issued.

(4) Any person charged with a noncriminal infraction under this section may:
(a) Pay the civil penalty, either by mail or in person, within 30 days of the date of receiving the citation; or,
(b) If he or she has posted bond, forfeit bond by not appearing at the designated time & location.

If the person cited follows either of the above procedures, he or she shall be deemed to have admitted the noncriminal infraction and to have waived the right to a hearing on the issue of commission of the infraction. Such admission shall not be used as evidence in any other proceedings. If a person who is cited for a violation of s. 327.395 can show a boating safety identification card issued to that person and valid at the time of the citation, the clerk of the court may dismiss the case and may assess a $5 dismissal fee.

(5) Any person electing to appear before the county court or who is required so to appear shall be deemed to have waived the limitations on the civil penalty specified in subsection (1). The court, after a hearing, shall make a determination as to whether an infraction has been committed. If the commission of an infraction has been proven, the court may impose a civil penalty not to exceed $500.

(6) At a hearing under this chapter the commission of a charged infraction must be proved beyond a reasonable doubt.

(7) If a person is found by the hearing official to have committed an infraction, he or she may appeal that finding to the circuit court.

Florida Statutes 775.083 Fines.--

(b) For a misdemeanor of the second degree, by a definite term of imprisonment not exceeding 60 days.
(e) $500, when the conviction is of a misdemeanor of the second degree or a noncriminal violation.

Inspections
327.56 Safety and marine sanitation equipment inspections; qualified.-

(1) No officer shall board any vessel to make a safety or marine sanitation equipment inspection if the owner or operator is not aboard. When the owner or operator is aboard, an officer may board a vessel with consent or when the officer has probable cause or knowledge to believe that a violation of a provision of this chapter has occurred or is occurring. An officer may board a vessel when the operator refuses or is unable to display the safety or marine sanitation equipment required by law, if requested to do so by a law enforcement officer, or when the safety or marine sanitation equipment to be inspected is permanently installed and is not visible for inspection unless the officer boards the vessel.

OIL POLLUTION COMPLIANCE WITH THE
FEDERAL WATER POLLUTION ACT

The Federal Water Pollution Act prohibits discharges of harmful quantities of oil into U. S. navigable waters or adjoining shorelines. Further, the person in charge of a vessel or facility that discharges oil in violation of the Act is required to notify the Coast Guard's National Response Center at (800)424-8802 as soon as he or she has knowledge of the spill. The penalty for illegal discharges is a civil penalty of up to $125,000 against the owner, operator, or person in charge of the source. Failure to notify the Coast Guard of a discharge is punishable by a criminal penalty of fines or up to 5 years imprisonment or both, against the person in charge of the source. Harmful quantities of oil have been defined by the Environmental Protection Agency (EPA) as those that violate applicable water quality standards or cause a film or sheen on the surface of the water, or cause a sludge or emulsion to be deposited beneath the surface of the water or on adjoining shorelines. Discharge of oil placards must be at least 5" x 8" and fixed in a conspicuous place in each machinery space, or at the bilge and ballast pump control station. Placards must be printed in the language or languages understood by the crew.

Public Law 96-510 and Public Law 92-500 (CERCLA) requires immediate notification of the appropriate agency of the United States Government of a discharge of oil or hazardous substances "Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000 or imprisoned for not more than one year, or both."

Pursuant to Chapters 376 and 403, Florida Statutes:

- The pilot or the master of a vessel, or person in charge of any terminal facility must notify the Florida Marine Patrol or the United States Coast Guard within one hour of the pollutant discharge...

- Any owner or operator of a facility who has knowledge of any release of a hazardous substances from a facility in a quantity equal to or exceeding the reportable quantity in a 24 hour period shall notify the State Warning Point within one working day of the release...

- The owner or operator having a discharge of petroleum or petroleum products exceeding 25 gallons on a pervious surface must report such discharge to the Department of Environmental Protection or the State Warning Point.

OCEAN DISPOSAL OF PLASTICS BAN AND
GARBAGE DUMPING RESTRICTIONS

On December 31, 1988, a new federal law took effect prohibiting all vessels in U.S. waters from discharging plastics at sea. The new law, the Marine Plastic Pollution Research and Control Act (MPPRCA), implements an international treaty known as MARPOL Annex V. Besides prohibiting the discharge of plastics, the law also restricts dumping of other vessel-generated garbage at sea including paper, glass, metal and food wastes. Garbage in our waters not only looks bad, but it can cause problems for boaters and for wildlife that live in or around the water. The MARPOL treaty requires a placard on all U.S. vessels 26' or longer. One or more placards must be prominently posted for all crew and passengers to read. In addition, a written waste management plan is required on all U.S. oceangoing vessels 40' or longer, which are engaged in commerce or are equipped with a galley and berthing. Boaters who witness suspected violations of vessel garbage dumping laws may report the violations to the nearest Marine Safety Office or Captain of the Port.