The Fisheries Code on Integrated Coastal Management:
A call to cooperation and complementation

The Philippine Fisheries Code of 1998 made the first express mention of integrated coastal management found in a law, but left a crucial question unanswered: What agency should undertake the formulation of an integrated coastal management plan that covers both the land and water components of the coastal areas? This article offers some recommendations.

(Excerpted from “Clarification of Jurisdiction Between the Department of Environment and Natural Resources and the Department of Agriculture on Coastal Resource Management: A Policy Study for the Coastal Resource Management Project”)

by Jay L. Batongbacal

he enactment of the Philippine Fisheries Code of 1998 (Republic Act 8550) was one of the most earnestly demanded and highly controversial reforms under the Ramos Administration (1992-1998). Even without the polarized and politicized debate over the allocation of the various fishery rights and privileges among the interested sectors, the Code was confronted with a complicated jurisdictional tangle that had resulted from decades of sectoral management of the country’s natural resources.

Coastal areas have become an arena for conflicts
related to a wide variety of activities beyond fisheries

The last decade saw the heightening conflict of the imperatives of food security and maximum utilization of resources, against ecological stability and long-term sustainable development. Philippine fishery resources, traditionally subject to policies of full utilization and exploitation, began to show signs of collapse, with the impoverished and resource-dependent artisanal fisheries sector both contributing to and directly bearing the brunt of resource depletion. Meanwhile, the growing commercial fisheries sector, encouraged by previous profitability, was finding less and less room to fish, and coming into direct and open conflict with smaller community fishers.

These conflicts found their arena in the coastal areas of the country, prompting the Department of Agriculture-Bureau of Fisheries and Aquatic Resources (DA-BFAR) to include in its Medium Term Fisheries Management and Development Plan for 1992-1996, a component for the integrated management of bays and gulfs, and the Department of Environment and Natural Resources (DENR) to create a Coastal Environment Program which pilot-tested integrated management strategies for the protection and maintenance of small coastal habitats and environments. In many places, there were also many community-based projects initiated by non-governmental organizations that sought to implement integrated management in coastal communities and towns.

Internationally, it became accepted that the ocean’s resources could no longer be effectively and sustainably managed through the traditional sectorally focused and fragmented systems that had been created. Sustainable development demanded an integrated and holistic approach, and Agenda 21 encouraged all nations to implement integrated coastal zone management strategies in the management of coastal resources and activities.

The Fisheries Code
The Fisheries Code was not immune to these developments. In its Declaration of Policy, it referred to an over-arching framework that defined a management approach,

xxx

f. To manage fishery and aquatic resources, in a manner consistent with the concept of an integrated coastal area management in specific natural fishery management areas, appropriately supported by research, technical services and guidance provided by the State, xxx” (Sec. 2, RA 8550)

This provision is the first express mention of integrated coastal management found in a law. For many, it was a welcome provision in that it legally validated and mandated the use of the integrated approach in the management of the coastal area, and its particular location in a fisheries code meant that priority would be given to the objective of maintaining the valuable fisheries resources.

But it also raised many questions. Did the Code place integrated coastal management solely and completely within the competence of the DA-BFAR? Fisheries are not the only activity existing in the coastal areas, so Sec. 2 has an impact on other departments and bureaus with jurisdiction over legitimate activities in the coast.

Of particular importance is the impact of the Fisheries Code on the Department of Environment and Natural Resources, which, on account of its broad and encompassing mandates for the national management of the environment and all other resources, would be most likely to come into conflict with DA-BFAR in the implementation of their various programs, projects, and jurisdictions in the coastal areas. Aside from the general management policy cited above, many provisions of the Fisheries Code would also affect the DENR either directly or indirectly, and their respective jurisdictions often touch upon the same area, subject matter, or activity in many varied ways.

This article presents a framework for how such jurisdictional issues are to be clarified and recommends concrete measures to allocate and harmonize the responsibilities of the two agencies. The recommendations are now contained in Joint Memorandum Order No. 2000-01, which identifies and defines the areas of cooperation and collaboration between DENR and DA-BFAR in the implementation of the Fisheries Code.

Express intersections
A review of the Fisheries Code and its Implementing Rules and Regulations or IRR (DA Administrative Order No. 1998-03) will reveal a number of provisions in which the jurisdictions of DA-BFAR and DENR, ranging from practical implementation to higher-level policy guidance, may intersect. Some of these provisions expressly state the involvement of the DENR, or require the coordination of efforts between the DENR and DA-BFAR, usually on the basis of either the geographical proximity of the areas under the respective jurisdictions of the two agencies, or the acknowledgment of the existing mandates or resources within the departments.

For example, both the DENR and DA-BFAR are required to establish quantifiable standards in the management of certain areas or activities, such as the classification of rare, threatened or endangered species of aquatic flora and fauna. Sec. 4(17) defines “rare, threatened, or endangered species” to include not only those defined as such by pertinent fishery laws, rules and regulations, but also those identified by the Protected Areas and Wildlife Bureau of the DENR and the Convention on International Trade in Endangered Species of Flora and Fauna (CITES), the implementation of which is DENR’s responsibility. Sec. 11, meanwhile, allows the DA-BFAR to issue its own Fisheries Administrative Order to identify such species and require appropriate conservation measures.

Both DENR and DA-BFAR have the express mandate
to classify rare, threatened or endangered species, including
the sea turtle above, which is listed in the CITES

Another example is the classification of fishery areas, which is provided in the Code. DENR’s National Mapping and Resource Information Authority (NAMRIA) has the technical expertise to undertake the mapping and surveying needs of the government. Indeed, the Fisheries Code refers to NAMRA repeatedly in several provisions that require these special skills. These provisions include Sec. 18, which requires NAMRA to undertake the establishment of boundaries of municipal waters and the determination of isobath depth; Sec. 26, which requires NAMRIA to certify to the depth of the waters in order to segregate waters of at least 7 fathoms deep where commercial fishing may be allowed to operate; Sec. 40, which requires coordination with NAMRIA in producing official map demarcating Philippine waters into distinct and coded fishery areas; and Sec. 123, authorizing NAMRIA to delineate municipal waters and designate and chart navigational lanes in fishery areas.

The Code expressly mandates the classification of fishery
areas, a function of DENR’s NAMRIA

Implied intersections
The Fisheries Code and its IRRs also include provisions that do not clearly refer to DENR but may require DENR’s involvement because of the nature of the work required for implementation. Such implied intersections pose greater difficulty in resolving jurisdictional issues between DENR and DA-BFAR, because the point of origin of the issue is not so obvious and can arise out of actual implementation in the field, or in apparent conflicts in operational guidelines, or inconsistencies in the agencies’ respective policies.

At the national level, the issue arises from the provision of the Declaration of Policies, where the management of fisheries and aquatic resources is supposed to be undertaken “in a manner consistent with the concept of an integrated coastal area management.” This implies the creation of an overall strategic policy framework, or a management plan. But what agency or agencies are mandated to formulate the integrated coastal management plan or strategy with which the management of fishery and aquatic resources must be consistent? The Fishery Code is silent on this.

While it may be easy to point to the DA-BFAR to be responsible for such a management plan, it needs to be pointed out that such a plan requires the participation and cooperation of agencies beyond DA-BFAR’s jurisdiction, as well as a subordination of all involved agencies’ existing plans, objectives, and operations within the parameters of the management plan. Integrated management is necessarily a multi-agency effort, and DA-BFAR is not given by the Fisheries Code the wherewithal to require multi-agency cooperation.

Sec. 3 causes the application of the Fisheries Code in all Philippine waters, fishery and aquatic resources, and lands devoted to aquaculture and businesses and activities related to fisheries, but the IRRs distinguish municipal waters from the rest, emphasizing that with such waters, the Fisheries Code grants extensive management control to the municipal or city governments. Sec. 16 clarifies that such management control by the municipal or city government shall be exercised in consultation with the Fisheries and Aquatic Resource Management Councils of the cities or municipalities, and states that contiguous fishery resources such as bays which straddle several municipalities shall be managed as single resource systems independent of the politically based boundaries of municipal waters and covering activities other than fishing within the bay area. What agency or agencies, then, shall assist the local government units in their strategic planning, when the management objectives for the bay exceed the ambit of fisheries and the jurisdiction of DA-BFAR as provided in the Fisheries Code?

The point is that DA-BFAR cannot formulate and implement an effective fisheries plan without reference to a larger framework of integrated coastal management that goes beyond fisheries and aquatic resources and delves deeper into the coastal and land-based activities that have impacts on the coastal and marine waters where the fisheries are located.

Similar issues may arise in relation to standard setting, monitoring and evaluation, and area classification. For example, the Fisheries Code created a category called “aquatic pollution” in Sec. 4(4), which is very broadly defined to cover the introduction of any substance or energy into the aquatic environment resulting in deleterious effects as to harm living and non-living aquatic resources. DENR has the clear mandate to enforce all types of pollution control laws, and its powers and functions go beyond merely enforcement of an absolute prohibition and into the setting of standards of discharge of materials into the land, water or air at specified levels. It has complete jurisdiction over the management of forests as well as other natural resources on land, regulation of the use of toxic chemicals, and management of waste materials. Clearly, at some inevitable point in time, conflicts will arise between DA-BFAR’s enforcement of absolute prohibition on aquatic pollution, on the one hand, and, on the other hand, the DENR’s own management of all activities that may result in actual or future, cumulative or non-cumulative, point and non-point sources of environmental pollution.

A framework for resolution
From the outset, it can be safely stated that integrated coastal management is not the exclusive mandate of DA-BFAR by virtue of Sec. 2(f) of the Fisheries Code. For one, the Fisheries Code appears to limit DA-BFAR’s mandate to use such as framework only in “specific fishery management areas”, which are apparently a geographically definable unit that is not nationwide in scope.

Integrated coastal management, whether directed at a resource, area or ecosystem, is not a fixed concept, but rather a management approach that seeks to institutionalize coordinative mechanisms that minimize the conflicts, take advantage of complementarities, and address negative interactions of the many sectorally discrete and disparately managed activities. As an approach, its use is not subject to exclusive appropriation by any one government agency. What defines an integrated approach to coastal management is a common management framework that is acceptable to all the involved agencies, and allows them to act within the coastal area or zone in a manner that results in the achievement of their individual goals with the minimum of conflict. This management framework need not be the sole province or responsibility of only one specific agency, but can be the common ground for the individual strategies pursued by the different agencies addressing their specific sectoral concerns.

At the national level, then, integrated coastal management covers far more than fishery resource management; it goes beyond fisheries and encompasses other activities that may impact upon fisheries but are beyond the competence of fishery authorities. It includes the management initiatives on the land, which, except for those portions deemed to be aquaculture areas, is far beyond DA-BFAR’s jurisdiction, which is largely concentrated on extractive use of living resources, with an additional hand in non-extractive use insofar as it is necessary for resource conservation. In all other ocean use activities, DA-BFAR is clearly without direct or incidental powers.

DENR, on the other hand, has a very broad mandate over all natural resources and activities -- for as long as they have environmental impacts -- that effectively allows it to influence all other activities, whether related to resource use or non-resource use, with the exception perhaps of political uses and some scientific uses. This is exercised through its various environmental management responsibilities, which provide DENR with the ability to influence many aspects of sectoral management in the ocean. Offhand, the major sectors under the classification would be marine transportation, public works and tourism.

The main sources of DENR’s power in integrated coastal management are its general authorities under the Revised Administrative Code of 1987 (E.O. 292), the Philippine Environment Code (PD 1152), the Environmental Impact Statement System (PD 1586), the Marine Pollution Decree (PD 979) and the Philippine Mining Act (PD 7942), among several others. The implication of this fact to national planning is that DENR is in better position to lay the foundation for an integrated coastal management plan that covers both the land and water components of the coastal areas. At the national level, DENR has sufficient mandate and scope to establish a national ICM strategy, which would be the basis for formulation of more specific area-based coastal management strategies.

Sustaining fisheries is vital to long-term food security

The maintenance of coastal fisheries is a priority for the Philippines, considering that most of the poverty-stricken coastal communities are directly dependent on fisheries for subsistence, and that fish provide the greater part of the Filipino’s protein intake. They are vital to ensuring the long-term food security of the nation. It is thus essential for DA-BFAR to be able to achieve fisheries management objectives without having to come into constant direct conflict with environment imperatives. An integrated coastal management strategy does not have to result in conflict between the DENR and DA-BFAR, and in fact they can play the major complementary roles in policy definition.

DENR should undertake formulate a national integrated coastal management framework that seeks to enable coastal environmental management in support of sustainable fisheries management by DA-BFAR. This will provide the general strategy that covers both land and water activities and supports DA-BFAR in coastal fisheries management. The management of all ocean use activities, whether non-extractive, additive or non-additive, should result in supporting, and not impeding, sustainable development of the extractive uses. For example, pollution management should always hold as a priority the prevention of coastal pollution so that fisheries will not be affected, or coastal infrastructures should not result in fisheries habitat destruction. In this manner, DENR can support DA-BFAR in achieving the policy objectives of the Fisheries Code.

Complementation, not exclusivity
The goal is to promote inter-agency coordination and cooperation, as well as the complementation of their efforts, rather than the allocation of exclusive powers and functions. In cases of geographic proximity of two or more management areas under separate departments, standardization of procedures and harmonization of specific management goals must be encouraged.

Where both departments have resources or capabilities to address the same specific management issue, redundancy of agency efforts should be avoided, and the procedures of both agencies in addressing the same management issue should be standardized in order that the resulting agency response to the management issue will be more or less the same regardless of which agency actually responds.

Where there are existing mechanisms for addressing specific management issues in either department, such mechanisms should be utilized to effect implementation of management actions without need for new mechanisms that will only duplicate the functions of existing ones.

Where the law is not clear about the roles of agencies at certain stages of the resolution of a management issue, the agency with existing mechanisms and resources that can effectively address such stage should be relied upon, and the creation of new units or mechanisms which only duplicate those mechanisms or resources will not be necessary.

Where management plans geographically converge, the two agencies shall undertake a process of effective consultation and, if necessary, take joint management action, in order to coordinate their management plans.

The Fisheries Code grants LGUs extensive management
control and  planning functions over municipal waters

Finally, it should be emphasized that the Local Government Code of 1991 gives local government units a pivotal role in the actual implementation of the Fisheries Code in coastal areas. The most important planning functions for coastal management have been largely devolved to the local governments, and the implementation of management measures within the strip of the coastal zone composed of the municipalities’ territory and municipal waters are largely within the powers and functions of the local chief executive and local legislature. It is therefore crucial that the Department of Interior and Local Government (DILG) be involved in order to define the role of local governments within this jurisdictional framework.

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