White House Release of Interim Framework for Coastal and Marine Spatial Planning

Joan M. Bondareff, Of Counsel, Blank Rome LLP, weighs in and explains the recent release of the Council on Environmental Quality (CEQ)’s “Interim Framework for Effective Coastal and Marine Spatial Planning”.

In 1983, President Reagan declared that the United States had exclusive rights to the resources of the 200-mile zone off its coasts, the Exclusive Economic Zone (EEZ), and the extended Outer Continental Shelf under customary international law. (He also rejected the Law of the Sea Treaty (LOST) because of its restrictive provisions on seabed mining; ever since, the U.S. has failed to ratify LOST, but this is a story for another day.) Since the Reagan Proclamation, the U.S. has been devising ways to govern this vast offshore region—the U.S. has the largest EEZ in the world—and has largely done so using a hodge-podge of individual resource laws, such as the Coastal Zone Management Act (CZMA), the Magnuson Fishery and Conservation Management Act, and the Outer Continental Shelf Lands Act.

Twenty-five years after the Reagan Proclamation, with new and competing uses of the ocean for aquaculture, renewable energy, and large wind farms, the Obama Administration has proposed an ambitious plan to divide up the EEZ and Great Lakes along regional lines and, over the next five years, create a comprehensive system of Coastal and Marine Spatial Plans (CMSPs). When fully executed, we could have a zoning map of the oceans and coasts to provide predictability for siting of current and planned commercial uses.

On December 14, 2009, the Council on Environmental Quality (CEQ) released to the public an “Interim Framework for Effective Coastal and Marine Spatial Planning”. ( The Interim Framework is available at http://www.whitehouse.gov/oceans ) The Interim Framework is available for public comment until February 12, 2010. Interested stakeholders, including those involved with ports and harbors, offshore shipping, cruise lines, offshore renewable and nonrenewable energy development, fisheries, and other users of the EEZ and Great Lakes, should take advantage of this process to submit their comments through the above portal. Following are some highlights of the Interim Framework and anticipated process for development of CMSPs.

Initially, the Interim Framework divides the EEZ and Great Lakes into nine regions consistent with the boundaries of identified Large Marine Ecosystems: (1) Alaska/Arctic Region (includes Alaska); (2) Caribbean Region (includes Puerto Rico and U.S. Virgin Islands); (3) Great Lakes Region (includes Illinois, Indiana, Michigan, New York, Ohio, Pennsylvania, and Wisconsin); (4) Gulf of Mexico Region (includes Alabama, Florida, Louisiana, Mississippi, and Texas); (5) Mid-Atlantic Region (includes Delaware, Maryland, New Jersey, New York, Pennsylvania, and Virginia); (6) Northeast Region (includes Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont); (7) Pacific Islands Region (includes Hawaii, Commonwealth of the Northern Mariana Islands, American Samoa, and Guam); (8) South Atlantic Region (includes Florida, Georgia, North Carolina, and South Carolina); and (9) West Coast Region (includes California, Oregon, and Washington). (New York and Pennsylvania are counted twice because they are coastal and Great Lakes states.)

Each region is tasked with the development of a CMSP. The Plan is to be developed by a coordinating group of representatives from Federal, State and local, and tribal entities, as well as Alaskan and Hawaiian Native groups. The Plan is to be based on scientific data and the precautionary principle (derived from the Rio Declaration that requires caution to be taken when there is a risk of serious environmental damage and no scientific certainty). Stakeholder participation is encouraged throughout the process, mainly through the establishment of local advisory committees.

The goal of each CMSP is to identify areas within the region that are suitable for siting of various uses and to reduce conflicts among those uses. The Interim Framework does not create a hierarchy among all the competing uses of the EEZ, but mainly is aimed at providing a “public policy process for society to better determine how the oceans, coasts, and Great Lakes are sustainably used and protected now and for future generations.” Among the uses recognized as having a legitimate role are: aquaculture, commerce and transportation, commercial and recreational fishing, environmental conservation, maritime heritage, oil and gas exploration and development, ports and harbors, renewable energy (e.g., wind, wave, tidal, current, and thermal), and military readiness activities.

Once the Plans are developed at the regional level, they will be submitted to an interagency committee on ocean policy—the National Ocean Council (NOC)—for certification and approval. The regional principals will execute an agreement to put the CMSP into effect. At that point, all activities within the region are to be conducted consistent with the certified Plan—shades of federal consistency under the CZMA.

CEQ is realistic in acknowledging that development of the Plans will take considerable time and resources and that agency budgets may need tweaking to carry out the Plans. The Interim Framework anticipates that the first Plan may not be submitted to the NOC for three years and that all Plans may not be completed and certified before 2015.

The Interim Framework assumes that agencies have adequate authority to develop the Plans, but new legislation may be needed to resolve use conflicts down the road. It is hard to see how Congress will not have a substantial role in the development and approval of Plans that are aimed at managing resources throughout the 200-mile EEZ, extended OCS, and Great Lakes. The uses to be managed implicate many Congressional Committees and many agencies—all with their own prerogatives and interests. Eventually, it will probably be up to Congress, working with the Administration, to grant the agencies the respective authorities and resources they may lack to execute these regional CMSPs.

From an optimistic viewpoint, a well-developed Plan, with appropriate input from affected stakeholders, could lead to greater predictability and certainty in the regulatory and permitting processes for offshore maritime activities. This, in turn, could provide greater certainty for capital investments in ports and harbor infrastructure, new maritime highways, new forms of offshore energy, and other forms of commercial uses of the EEZ yet to be identified. This is the best we can hope for in a Framework of Coastal and Marine Spatial Planning. But, it is up to interested stakeholders to make sure their activities in the oceans of the U.S. are protected in the development of the CMSPs.

Future articles will review how the European Union is dealing with marine spatial planning, the ocean plans of some coastal states, and the issuance of a final Framework.

About the Author:

Joan Bondareff focuses her practice on marine transportation, environmental, and legislative issues. Ms. Bondareff represents clients in many industries in matters related to:

• maritime regulations and public policy
• environmental law
• government relations
• international law
• federal grants
• port security

Prior to joining Blank Rome, Ms. Bondareff was chief counsel and acting deputy administrator of the Maritime Administration, U.S. Department of Transportation. She was also Former Majority Counsel for the House Committee on Merchant Marine and Fisheries. Ms. Bondareff recently served on the Obama Transition Team for the Department of Transportation handling maritime related issues.

REPRESENTATIVE MATTERS

• Represented port coalition for obtaining additional funds for port security.
• Counsel for association requiring relief from federal laws.
• Represented ferry company in environmental matters (NEPA) and agency representation.
• Provided legal advice to nonprofit boating association.
• Assisted freight service company in securing federal grants.

COMMUNITY SERVICE & AFFILIATIONS

Ms. Bondareff is a member of Women in Government Relations and serves on the Homeland Security Task Force.