“O ocean vast!” proclaimed Victor Hugo in his poem, “The Ocean’s Song.”1 While this image still dominates our collective consciousness, scientists tell us appearances are deceiving and in fact the oceans off our coasts are growing very crowded. Just a quick list of some of the significant – and potentially competing – interests that are active factors in our oceans and on our coasts illustrates the point: commercial and sport fishing, shipping, oil and gas exploration and development, renewable energy production, coastal housing, resorts, and recreation, liquefied natural gas (LNG) transport, aquaculture, mining, military/defense, marine sanctuaries, heritage sites, and important biological resources, such as biomedical remedies, harvestable plants (e.g., kelp and other seaweeds), and protected marine species, some of which are endangered.
Last June, President Obama established an Interagency Ocean Policy Task Force and directed it to produce, within 180 days, a policy, framework, and strategy to implement “effective coastal and marine spatial planning” (CMSP),2 also known as zoning. The mandate was broad: “This framework should be a comprehensive, integrated, ecosystem-based approach that addresses conservation, economic activity, user conflict, and sustainable use of ocean, coastal, and Great Lakes resources…”3
Throughout the remainder of the year, the Task Force held 24 roundtables and six regional meetings, took comments, issued an Interim Report in September,4 and on December 14, 2009 released an Interim Framework for Effective Coastal and Marine Spatial Planning.5 The White House Council on Environmental Quality (CEQ) is soliciting comment through February 12, 2010. Most comments have been supportive, because the concepts are broad and the principles of ecosystem-based, sustainable approaches enjoy widespread acceptance. But there is evidence that many interested observers picture the contentiousness of land-based zoning and are nervous about an ocean equivalent and what the ultimate CMSP plan may mean for them. These concerns have already prompted letters from Congress to CEQ on behalf of two sector groups, urging that they have seats at the table as this new initiative moves forward.
What Is CMSP?
CMSP has many definitions, but the Interim Framework puts it this way: “CMSP is intended to improve ecosystem health and services by planning human uses in concert with the conservation of important ecological areas, such as areas of high productivity and biodiversity; areas and key species that are critical to ecosystem function and resiliency; areas of spawning, breeding, and feeding; areas of rare or functionally vulnerable marine resources; and migratory corridors.”6 The Interim Framework offers examples of how this would work, including the Dutch government’s establishment of a “preferred sand mining area” within its territorial sea, which allows sand extraction closer to shore at lower cost. Another example is the German government’s designation of priority areas for offshore wind farms, where costs of preparing pre-permit environmental assessments will be reduced or avoided.7
These examples sound reasonable, but skeptics point out that Europe has much more limited coastline and offshore space than the United States, and wonder how such a system of regulation would fare on a much larger scale, where 20 or more federal agencies, at least 140 laws, and a separate tier of states and tribal authorities all play a part.8 Some commenters have raised concerns that overlaying CMSP onto the existing regulatory system – which the Interim Report and Framework seem to suggest is the plan – would lead to extra layers of review and permitting delays.9 They also note that in most of Europe and also in Massachusetts, where an ocean management plan was just completed in December 2009,10 some traditional uses, such as commercial and recreational fishing, are excluded from the program, while that is not the expectation under the Interim Framework.11
The Proposed Approach
The Interim Report lays out a cascading set of governmental structures that will coordinate the framework. At the top is a secretary-level National Ocean Council (NOC), co-headed by two White House offices, CEQ and the Office of Science and Technology Policy (OSTP), with membership from 18 other federal departments and agencies, along with four presidential assistants and a representative of the vice president. Under the NOC falls a deputy secretary-level group with the same composition, responsible for execution of priority goals, coordination among regulatory authorities, and dispute resolution.12 Next in line, two working-level committees would serve as the implementation and science bodies of the NOC. The chairs of these committees, along with high-level representatives from CEQ and OSTP, constitute a Steering Committee.13 Two additional committees – the Governance Advisory Committee and the Ocean Research and Resources Advisory Panel (ORRAP) – would provide input from, respectively, (1) state, tribal, and regional interests, and (2) experts on marine science, marine policy, and related fields.14
As envisioned in the Interim Framework, the NOC will work with the states and tribes to create nine regional planning bodies that will actually develop the CMS Plans. The nine regions are organized on the scale of large marine ecosystems (LME), namely: Alaska/Arctic, Caribbean, Great Lakes, Gulf of Mexico, Mid-Atlantic, Northeast, Pacific Islands, South Atlantic, and West Coast. Membership in these regional bodies is limited to federal, state, and tribal representatives, with sufficient degrees of responsibility to make decisions and commitments.15 The plans developed by these regional planning bodies will ultimately be incorporated into cooperative compliance and enforcement efforts, according to the Interim Framework.16
Public and Stakeholder Involvement
With so many governmental structures and levels of activity, the Interim Framework lays out a phased implementation schedule, with full activation expected in mid-2015.17 Interestingly, however, initiation of public and stakeholder involvement is not slated to occur until nine to 18 months into the process.18 Up to that point, it appears the formative efforts will include only federal, state, and tribal government representatives.
Issues
Perhaps it is no surprise that such a long nonpublic gestation period for the CMS Plans, and, more generally, the whole initiative, is generating fears among interested parties. In an October 26, 2009 bipartisan letter, 69 members of the House of Representatives expressed concern about the CMSP’s potentially negative effects on the “nation’s ability to safely develop its own offshore energy, including oil, natural gas and renewable energy,” and urged the Task Force to ensure that these interests receive balanced consideration along with other national priorities relating to environmental stewardship.19 In a similar vein, Congressmen Adam Putnam (R-FL) and Dan Boren (D-OK) sent a letter to CEQ on December 1, 2009, cautioning against “overly broad regulations that [could adversely] affect recreational fishing” and requesting that the planning process “include representatives of the recreational fishing community in any new ocean governance structure.”20
At a November 4, 2009 Senate Oceans Subcommittee hearing, concerns surfaced about how the complicated, multi-party governing structure that is contemplated could manage a coherent oceans CMSP program. Chairwoman Maria Cantwell sharply questioned why the National Oceanic and Atmospheric Administration (NOAA), which has responsibility for oceans, was not placed in the leadership role, which would have been not only a logical choice but one that would place accountability with a single governmental entity.21 Many other questions remain, including how the CMSP framework will function in conjunction with existing regulatory schemes, like those for fishing limits and permits and offshore energy development and mining. Other unknowns are whether the regional bodies’ decisions will be binding and if so, what rights of appeal will apply, how the dispute resolution process will work, and what the costs of this new regime will be.
Conclusion
The idea of an ecosystem-based approach to managing our oceans with the goal of ensuring a sustainable future for a diverse range of uses makes eminent good sense. However, designing a workable and balanced management approach is no easy task. The fact that 20 federal departments, agencies, and offices have been given cabinet secretary-level seats on the new NOC is strong evidence of the critical interests affected by this initiative. For commercial interests, the stakes are no lower.
While some private-sector groups have evaluated the proposed “ocean zoning” approach and its potential effects on their interests, others have paid little attention. There is still time before the February 12 deadline to assess this initiative and weigh in with comments, but that is not the end of the process. Planning is still in the formative stage and will be for some time, but events are clearly moving forward.
Some interests have already spoken out about their concerns and asked for a place at the table as the CMSP process gets down to business. This would require a change in the government-only plan set forth in the Interim Framework, but it is understandable that affected interests would want to be part of the planning process. At a minimum, potentially affected businesses – and there are many – need to continue to monitor developments closely as CMSP development moves forward and put together effective strategies to deal with the different marine governance reality that is coming.
Endnotes
1 Victor Hugo, “The Ocean’s Song,” Bk. VI. iv. (October 1852).
2 Memorandum for the Heads of Executive Departments and Agencies, re: National Policy for the Oceans, Our Coasts, and the Great Lakes (June 12, 2009), at 2, available at http://www.whitehouse.gov/assets/documents/2009ocean_mem_rel.pdf.
3 Id.
4 White House Council on Environmental Quality, Interim Report of the Interagency Ocean Policy Task Force (Interim Report) (Sept. 10, 2009), available at http://www.whitehouse.gov/administration/eop/ceq/initiatives/oceans/interimreport.
5 White House Council on Environmental Quality, Interim Framework for Effective Coastal and Marine Spatial Planning (Interim Framework) (Dec. 9, 2009), available at http://www.whitehouse.gov/administration/eop/ceq/initiatives/oceans/interim-framework.
6 Id., at 3.
7 Id.
8 See Juliet Eilperin, “Finding Space for All in Our Crowded Seas,” Washington Post, A6 (May 4, 2009).
9 Interim Framework at 3.
10 See Massachusetts Ocean Management Plan (December 2009), available at http://www.mass.gov/?pageID=eoeeaterminal&L=3&L0=Home&L1=Ocean+&+Coastal+
Management&L2=Massachusetts+Ocean+Plan&sid=Eoeea&b=terminalcontent&f=eea_oceans_mop&csid=Eoeea.
11 Id. at 2-20.
12 Interim Report at 19.
13 Id., at 22-23.
14 Id., at 24. The ORRAP is established by law and operates under the Federal Advisory Committee Act (FACA).
15 Interim Framework at 12.
16 Id., at 23.
17 Id., at 26.
18 Id., at 30.
19 Letter to Nancy Sutley, Chair, CEQ, from sixty-nine Members of Congress (Oct. 26, 2009), available at http://republicans.resourcescommittee.house.gov/UploadedFiles/LettertoOceanTaskForce.pdf.
20 Letter to Nancy Sutley, Chair, CEQ, from Cong. Adam Putnam and Dan Boren, (Dec. 1, 2009), available at http://www.house.gov/apps/list/press/fl12_putnam/20091201_sportsmen_ocean.shtml.
21 See Allison Winter, “NOAA: Agency’s Absence from U.S. Marine Council Puzzles Lawmakers,” Greenwire (Nov. 5, 2009).
Jane C. Luxton
