Question: What are the pros and cons of MCAs?

Answer: The basic premise behind MCAs, i.e., that all parties agree to the project terms and conditions, means that most pros and cons related to specific MCA field projects should be accounted for in some way. However, overarching MCA pros and cons have been identified for conservation organizations, management agencies, communities, and private individuals.

In theory, MCAs are based on all parties directly involved in the projects agreeing to the terms and conditions specified in the MCAs. Because MCAs are voluntary, no one should be forced into agreeing to them. Any real or perceived negative impacts associated with MCAs should ideally be identified and resolved prior to establishing and implementing the MCAs. This is what the quid pro quo of MCAs is all about. If the right-holders may be negatively impacted because they agree to give up some right, then the conservation proponent should offer an economic incentive that offsets that impact. If the conservation proponent does not make such an offer, then right-holder has no incentive to give up the right. As such, the entire package of direct and indirect economic incentives provided by conservation proponents should negate all of the direct and indirect impacts experienced by the right-holders and other lawful stakeholders (taking into consideration direct and indirect factors affecting valuation; see Sub-step 1.7 of the MCA Field Guide).

There may be, however, negative impacts experienced by non-right-holders and others who are not parties to the agreement. These impacts should also be identified and accounted for in some way via the MCA negotiation process. For example, if community members will no longer be able to do something that they were formerly able to do (because right-holders allowed it), then ideally the MCA will identify benefits (such as a community center, medical services, school books, or a community generator) that the entire community will receive as part of the MCA. Negative impacts may also be experienced by people who undertook activities not previously approved by right-holders. In this case, the activities may have been illegal. While those who previously undertook illegal activities (such as fishing in an area where they were not authorized to fish) may experience a negative impact, there is usually no incentive that compensates them because the activities that they are being prevented from undertaking were not authorized in the first place.

Many positive impacts can be derived from MCAs, the first of which are the successful realization of the project’s conservation goals, which will likely be some form of improved and protected cultural/spiritual and natural resources (e.g., more fish) – all right-holders and community members are often expected to benefit from the successful achievement of these goals. Secondary to these are the direct and indirect economic incentives provided by the conservation proponents to the right-holders and other stakeholders as part of the MCAs. Under properly structured MCAs, when right-holders fulfill their conservation commitments, then conservation proponents deliver some sort of economic incentive. The possible incentives delivered under an MCA must be agreed upon during the MCA negotiation process. Possible incentives include, but are not limited to: public transportation; electricity for public buildings; fuel for boats and generators; community infrastructure, vehicles, and equipment; education and training; food and supplies for special events; employment; alternative gear swap outs; protection of marine areas from outside users; market creation for local goods; other public utilities; direct cash payments; grants; and livelihoods.

Many MCA projects will need to gain broad-scale community acceptance and support to attain long-term success. The earlier community acceptance and support can be achieved, the more likely the project will succeed. Incentives that achieve community support for MCA projects are those that are transparently provided to communities or to groups at large, explicitly as a result of the communities’/groups’ contributions towards achieving the MCA project goals. Community support incentives can be continuous or one-time in nature, but are best if provided at least periodically during the life of the MCA project.

Questions have arisen about MCA projects in which it appeared only a select few landowners received benefits. This is usually not the case. Even when an MCA project only involves a single right-holder, such as a landowner, there are often direct or indirect community benefits that are delivered as part of an MCA project. One problem encountered with some MCA projects is that community members and other stakeholders do not associate the benefits they receive as coming from an MCA project. As such, they enjoy the benefits (not knowing exactly why they receive them or who they are coming from), but continue to think they are not benefiting from the MCA. It is the job of conservation proponents and right-holders to ensure that community members and other stakeholders understand why and how they will receive benefits as part of the project.

In some unique situations only one specific right-holder will benefit from an MCA project, for example when a conservation proponent buys a fishing permit from an individual fisherman. In these situations, community members should, at a minimum, benefit in some way from attainment of the project’s conservation goals.

Below is a listing of more general pros and cons regarding MCAs.

Pros

The pros of MCAs can be described from at least three perspectives—those of conservation organizations, management agencies and communities, and private landowners and resource users.

Conservation Organizations

For conservation organizations, MCAs entered into with government agencies, such as leases for conservation activities and fee-simple or less-than fee-simple deeds granted by private parties, provides many advantages that other formal or informal relationships will not provide, such as:

• Prevents the future degradation of sites by removing the potential to develop sites for commercial, residential, and industrial purposes.
• Places the conservation organization in the lead for making decisions regarding land and resources.
• Establishes a landlord-tenant relationship and, as a tenant, conservation organizations have rights (as defined by local, state, and federal law as well as the conditions of the MCA) that can be defended in courts.
• Transfers specific management authority (describing the specific rights of the grantee and grantor) over the property from the management agency to the conservation organization for the term of the MCA.
• Ascribes liability and describes legal recourses for resolving disputes.
• Affords varying levels of exclusive use over land and resources.
• Assures that physical improvements existing or created on the property will remain.
• Establishes footholds in communities for conservation organizations, which can be used to create partnerships and goodwill for conservation projects.

Management Agencies and Communities

For management agencies and communities, entering into MCAs for areas under their authority has several positive aspects:

• Shifts long-term stewardship requirements to conservation organizations.
• Uses authority proactively to meet public trust responsibilities.
• Focuses attention on specific areas which otherwise may not receive it.
• Creates alternative funding sources for conservation programs.
• Develops creative partnerships and allies with conservation organizations.
• Taps into ocean and coastal expertise which may not otherwise be available.
• Assigns additional personnel and resources to public lands.

Private owners and users

For private landowners and resources users, transferring interests or prescribing management conditions to intertidal and subtidal areas can serve to:

• Conserve and restore waterfronts that owners and users enjoy.
• Improve remaining, adjacent private land values.
• Liquidate value in the intertidal and subtidal private landholdings.
• Create tax breaks.
• Create new partnerships.

Cons

While there are many positive aspects of MCAs, there are also negative aspects. Although many of these disadvantages can be addressed, doing so can require time, money, and patience.

• Boundaries for lands lying under ocean and coastal waters may not be well understood or defined.
• The defensible rights, based on laws and policies, obtained through MCAs may not be well understood or defined.
• The public trust doctrine usually applies to lands lying under ocean and coastal waters in the United States (other countries may have similar public trust-protected rights).
• In addition to regulatory restrictions and permits, local zoning, and land use designations, MCA projects are not exempt from potential eminent domain condemnation (e.g., Corps of Engineers or the United States Coast Guard projects under navigational servitude, military facilities under War Powers Act, state/federal transportation projects, etc.) in the United States and elsewhere. Local port authorities may also have similar powers.
• The process for entering into an MCA may not be clear.
• The authorities for establishing an MCA may not be clear.
• There may not be a precedent for using MCAs in specific areas.
• Valuation of areas and activities may be difficult.
• Representatives of agencies and private organizations may take issue with the strategy, and may consequently resist it.
• To date, the use of MCAs has been mostly opportunistic and uncoordinated.
• MCAs require the cooperation of the landowners, managers and users (the potential grantors)—this is a strategy that cannot by undertaken alone.

 

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