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NOPC Submits Comments On Interim Framework for Effective Coastal and Marine Spatial Planning
February 12, 2010 Categories: Comments, Press Releases by oceanpolicy Comments Off
The National Ocean Policy Coalition submitted the following comments via http://www.whitehouse.gov/administration/eop/ceq/initiatives/oceans/interim-framework/submit and hand delivered on February 12, 2010, to the Interagency Ocean Policy Task Force c/o The Honorable Nancy Sutley, Council on Environmental Quality.
Dear Chairwoman Sutley:
On behalf of the National Ocean Policy Coalition (NOPC), I am pleased to submit comments on the Interim Framework for Effective Coastal and Marine Spatial Planning. The National Ocean Policy Coalition is an organization of diverse interests united in our desire to ensure that the creation and implementation of a new National Ocean Policy is done in such a way that it is helpful rather than harmful to the National interests, including the interests of commercial and recreational users of the oceans and marine-related natural resources. It is essential that the new National Ocean Policy be based on expansive input from ocean users and be fully vetted regarding potential harm to economic and recreational activities prior to implementation. We seek to ensure that a National Ocean Policy will enhance the public’s ability to utilize the oceans and their critical resources in a way that provides maximum benefit to the economic and societal interests of the American people.
Our coalition represents the following interests:
The National Ocean Policy Coalition supports the development and implementation of a sound, balanced ocean policy that:
Given the economic crisis and high unemployment our Nation currently faces, it is absolutely imperative that any major policy initiatives impacting the uses and protection of our ocean resources be designed in a way that does not harm the economy of our nation, its coastal states and communities, nor the industries that thrive on the use of our national resources. In fact, we call on the Obama Administration to develop an ocean policy that:
In short, the development of a national ocean policy should be used as a mechanism for jobs creation, infrastructure revitalization and economic growth.
The NOPC has many important unanswered questions related to the Interim Framework for Effective Coastal and Marine Spatial Planning (CMSP). A CMSP system implemented without appropriate input from commercial and recreational interests could be devastating to commerce, trade and the US economy and to the basic rights and freedoms of individuals and institutions that benefit from our nation’s oceans, watersheds and their resources and services. In fact, should the federal government implement a CMSP system, it should do so in a manner that better facilitates and enables commercial and recreational activities. A CMSP system should NOT lead to zoning of areas of the oceans by restricting all or some activities from broad swaths of marine areas.
Further, the NOPC has significant concerns about the legality of the proposed regional regulatory bodies as described in the Interim Framework. The Interim Framework does not explain the source of legal authority to establish these bodies and provide them with the authority that the Interim Framework describes. These bodies have a strong potential to infringe on the sovereignty of coastal and inland states, with a likely result of increased litigation regarding activities proposed for the oceans and Great Lakes.
There appears to be a basic assumption of conflict between various ocean activities. While there are occasional conflicts, in general, the US has always recognized the need for multiple public uses in any particular area of our oceans. Those uses are usually performed without conflict as most of these activities do not impede one another. Their impacts on marine ecosystems are already determined through NEPA processes, including analysis of cumulative effects, and through numerous regulatory processes required by rulemakings and statutes. While there is merit to ensuring coordination and standardization of these processes, there is great danger in attempting to redraft these processes or to give one federal agency or entity primacy over all marine activities or activities that impact marine ecosystems.
In general, the Interim Framework appears to be based on an assumption that commercial and recreational activities have a harmful impact on ecosystems and on other marine based activities. The Interim Framework recommendations appear to have a primary focus on protecting marine ecosystems from other activities, some outlined as ecosystem services, which take place in coastal and marine areas, as well as inland areas. This is apparent in the 12 National Guiding Principles for Coastal and Marine Spatial Planning outlined in Section VII of the Interim Framework.
Especially troubling is Principle 7 which states CMSP would be guided by the precautionary approach. The precautionary approach is highly problematic because it can be used to prohibit activities from occurring that have any risk of harm. By making the “precautionary approach” a Guiding Principle, the Task Force risks creating an almost unachievable burden of proof that could stop virtually any activity where any risk to the environment is considered possible. Such an action would give the regional planning bodies an inherent bias against commercial and recreational activities.
Geographical Scope of CMSP
We are concerned over the assertion in the Interim Framework that “successful implementation of CMSP would ultimately depend upon a better integration of coastal planning that considers influence from, and activities within, coastal watersheds and other contributing land areas.” The Framework contains a long list of “ecosystem services”, several of which involve activities that are not necessarily confined to coastal and marine areas. Examples include control of pests and pathogens, and nutrient recycling. It appears that the Ocean Policy Task Force is seeking to extend the regulatory reach of the National Ocean Council well beyond coastal and marine areas to activities conducted onshore including construction, manufacturing and agriculture. While activities that take place onshore may have impacts on our oceans and coastal areas, it is unclear why the Task Force or the future National Ocean Council would be the appropriate entity to address or regulate onshore activities. This could result in another federal entity being involved in the regulation and permitting of activities that are already entangled in regulation and permitting by multiple federal agencies. It might also place an undue burden on oceans users.
While the Framework states that concerns over additional regulatory reviews or delays in decision-making are unwarranted, not only does it fail to explain how the development of the CMSP process would create efficiencies and avoid duplication, it also fails to address the likelihood of a significant increase in litigation regarding coastal and ocean activities because of the conflict of laws inherent within the Framework.
It is unclear as to why the Ocean Policy/CMSP is applied to the Great Lakes. The Great Lakes are not oceans. The submerged lands in the Great Lakes region are under the jurisdiction of the adjacent states and are actually part of the territory of those states. There are no Great Lakes waters under exclusive federal jurisdiction. We are concerned that applying CMSP to the Great Lakes would in fact take away state authority in these regions and bring them under federal control setting up a constitutional conflict.
Regional Planning Areas/Regional Planning Bodies
We also have many fundamental concerns about the establishment of nine regional planning areas based on Large Marine Ecosystems and the establishment of regional planning bodies with authority to establish regional CMS plans. It would appear that the regional planning bodies will be very political bodies. We are concerned that given the political nature of these bodies, decision-making will be highly contentious and that critical decisions will be based on prevailing political winds and might not reflect the long-term best interest of the nation. How does the Task Force intend to ensure that actions taken by the regional planning bodies are not politically charged and that their decisions reflect the long-term best interest of the nation, including economic activity and national security?
The Framework states that “Inland States may also be afforded ex officio membership as determined by the regional planning body.” It is unclear what criteria will be used in determining whether or not inland states should be awarded membership. Why should the membership of inland states be only ex officio if the regional planning body regulates activities within that inland state? As stated before, it appears that the actions taken by the regional planning bodies and the National Ocean Council will impact activities far outside the geographical scope of coastal and marine areas. That being the case, shouldn’t there be a consistent method by which inland states and inland interests are adequately represented in the development of coastal and marine spatial plans?
There are many questions regarding the impact of the proposed CMSP process on existing laws, such as the Coastal Zone Management Act (CZMA), and authorities that state and local governments currently possess under the United States Constitution and delegations of authority under federal statutes. For instance, it appears from the Interim Framework that the recommendations of the Regional Planning Areas, once approved by the National Ocean Council, will have the full force of law. If that is the case, it is most likely that they will be found to be inconsistent with various state Coastal Zone Management Plans. What is the impact of the Regional Planning Areas and the National Ocean Council under CZMA? Do the regional CMSPs supersede the state Coastal Management Plans? Can states find the regional plans inconsistent with their Coastal Management Plans? Is the establishment of a Regional CMSP considered a federal action? Does the Task Force propose amending CZMA in order to implement these recommendations? Further, what is the authority for the National Ocean Council to require that statutory officials, such as departmental secretaries, exercise their statutory discretion as provided for in the National Ocean Policy? Further, by what authority can a group of states, tribes, and others impose their collective will on another sovereign state in the regional planning area which may not agree with the majority?
The Interim Framework describes the need for thorough engagement of stakeholders throughout the process of establishing regional CMSPs. We completely agree. However, it is important that the Task Force provide a thorough and complete list of the kinds of stakeholders that need to be engaged and assurances that their interests are fully considered. A stakeholder input process that provides inadequate opportunity for commercial and recreational stakeholders to participate will likely result in policies that unfairly address their concerns and interests. While the Task Force held meetings with various ocean user groups prior to the issuance of this Interim Framework, many of the concerns expressed in those meetings do not appear to have not been addressed in the Framework document. We ask that the Task Force carefully consider those concerns, many of which are reflected in these comments, prior to finalizing its recommendations. Further, given the broad scope of the proposed National Ocean Policy, including the CMSPs, we recommend that the policy first be tested in a pilot project in a regional area in order to see how the policy should be adjusted. The potential for significant harm to many industries and commercial and recreational interests would be greatly mitigated by such a pilot project. There is no reason to rush headlong into nationwide application of such major policy changes when the opportunity for unintended consequences is so high and the extent of such consequences is largely unknown. In this case, application of the precautionary approach would be wise.
Role of National Ocean Council and Statutory Authority
It is unclear from the Interim Framework how the National Ocean Council will derive its authority, to whom it will report and how its authority impact existing federal agencies, their jurisdictions and authorities. Will the National Ocean Council be considered a Federal agency and will its authority supersede those of the other agencies that regulate activities occurring in or near coastal and marine areas?
It would appear that in order to establish a national body with such broad and sweeping authorities there would need to be significant changes to current statutes. However, the documents produced by the Task Force thus far have not outlined a plan to amend current law. We are concerned that the Task Force is recommending a series of changes to roles and responsibilities of Federal agencies that are not supported or enforceable under the current law. We ask the Task Force to provide a clear plan of how it intends to make such changes administratively, in view of existing statutes, and outline what statutory changes need to occur as well. Will the changes that don’t require rulemakings be done in accordance with the Administrative Procedures Act whereby relevant agencies will need to address all comments made during rulemakings? Finally, how can it be lawful that the Task Force aims to establish a National Ocean Policy that federal agencies must follow, to the extent of their discretion, yet such a policy is not created in accordance with the Administrative Procedures Act?
We ask that the Task Force, prior to establishing a National Ocean Council, regional planning bodies and regional CSMPs, describe the statutory changes that would be necessary as well as the administrative actions that would be required with or without a rulemaking process.
Impacts to Commercial Activities
We are quite concerned that the full slate of impacts to commerce and economic activity are not being addressed or considered in the development of a National Ocean Policy and CMSP. Throughout the document there are examples of proposed actions or processes to be taken in establishing CMSP, but there are no suggestions on how to incorporate the impacts on commercial activities. For instance, great emphasis is put on the need to consult scientists and technical experts in developing regional plans, and while examples are given for types of technical experts, none appear to represent commercial interests such as oil and gas development or maritime transport. It calls for these experts to analyze data on the impacts of services and activities on the ecosystem of coastal and marine areas. Again, it fails to mention expertise on the impacts to commercial and recreational activities.
The Interim Framework describes the essential elements of the CMSP Process as being:
In developing a regional overview and scope of planning area, it is essential that the whole host of commercial and recreational uses is fully accounted for in the context of the current and future commercial and economic security needs of the nation. These plans should fully account for things like:
The Interim Framework calls for developing and evaluating future use scenarios and trade-offs. This is an important detail. It is critical that any plan evaluates future uses and trade-offs and contains a mechanism for adjusting to technological improvements that lessen environmental impacts. Those scenarios and trade-offs need to be developed with adequate input from experts that understand current and future technological advances that reduce impacts. A CMSP should not serve to lock up areas for specific purposes through exclusionary zoning but rather should be flexible enough to evaluate a host of uses and determine how those uses can successfully occur in tandem. Adhering to the principle of multiple-use and understanding how multiple activities have and will continue to successfully co-exist should be a vital element of the process.
The stated goal of addressing regulatory inefficiencies is a desirable goal. In developing a regulatory context, it is important to identify the flaws in the current system in terms of regulatory agencies and their ability to work with one another. The goal should be to create a system with common practices. It should not result in giving a new agency or federal office, authority over the regulatory practices of another. Clearly, statutory and regulatory changes would be necessary in order to successfully achieve a CMSP process. Careful consideration needs to be given to what those changes should be and how they should be implemented to prevent adding layers of bureaucracy and complexity to an already strained and litigious regulatory system. It appears to be inevitable that the proposed system of regional planning bodies and a National Ocean Council will result in a more complex regulatory structure.
Furthermore, a regional approach will frequently fail to produce the best results in terms of safety, efficiency and environmental protection. For instance, the ocean transport sector seeks to have greater national (and even international) uniformity in terms of regulations and standards. A variety of standards and regulations for ocean transport based on regional differences could have detrimental impacts on safety and the environment, not to mention significant economic impacts. Similarly, ocean energy producers, both conventional and renewable, would greatly benefit from national uniform regulatory and operational standards in the outer Continental Shelf (OCS) rather than the likely result of the CMSP process — a patchwork mélange of regulations, restrictions, and procedures that change based upon being in different spots in the ocean.
A regional assessment based on environmental, social, economic and other necessary data and knowledge is called for in the Interim Framework. Such an assessment should be mindful of all commercial and recreational activities and should consider how these are tied to the overall commercial and economic security needs of the nation. The study also calls for an analysis of cumulative risks and impacts. It is critical that that analysis is done in a way that accurately assesses mitigation measures and the impact of new technology on environmental footprints. Real world data should be required in making such assessments.
Each CMSP would describe strategies, methods and mechanisms for integrated or coordinated decision-making. It is important that these strategies and their decision makers have a way to appropriately determine and understand the implications of CMS planning on commercial activities. Private sector participants need to have an adequate role in this process.
A section calling for compliance mechanisms is appropriate. Such mechanisms need to ensure that laws, regulations and decisions are consistently applied across regions and that the regional planning organizations are forced to comply with the overall objectives. There is a danger that these boards will become barriers to commercial activities, especially if one of their guiding principles is adherence to the precautionary approach.
The process of establishing CMS Plans and their corresponding environmental impact statements could result in many years of delay for future energy leasing and projects on the Outer Continental Shelf. Similarly, application of the precautionary approach to commercial fishing could lead to very large reductions in catch limits. It is absolutely essential that the Task Force make it clear that establishment of a National Ocean Policy and a CMSP process will not be used to delay the regulatory and permitting processes that are needed for new commercial activities. The United States cannot afford to shut down commerce while a new system is being contemplated.
Monitoring and evaluation mechanisms are called for in the Interim Framework. They would be set up with regional performance measures. It would be critical to ensure that these performance measures include feedback from the commercial sectors on ability to perform commercial activities.
The Interim Framework calls for a dispute resolution process to be established and implemented. There are already overlapping agency jurisdictions that are subject to actions from quasi-judicial agency boards. At the same time, numerous state and federal court jurisdictions impact activities offshore and near-shore. It is important that the dispute resolution process: 1) be coordinated with the agency appeals processes; 2) be aligned with existing judicial jurisdictions and processes; 3) serve to expedite, not delay, the ultimate resolution of a dispute resulting in a final outcome (not just another step in an endless appeals process); and 4) be mandated to determine the action’s impacts on commercial activity and on the nation’s economic security and well being.
Impacts on US Energy
We are concerned that the Ocean Policy Task Force established by President Obama is proposing a system of oceans governance that could significantly impact our nation’s ability to safely develop its own offshore conventional and renewable energy sources. Energy is the lifeblood of our nation’s economy and economic growth. Much of our nation’s current and future energy supply is dependent on the oceans and marine areas – from conventional offshore oil and gas development, to renewable sources like wind and wave power, to transport of energy products and commodities, to refining and electric generation facilities, to pipeline and transmission line infrastructure. Any Ocean Policy should recognize this critical role and should focus on policies that improve access, production and distribution of energy and do not impede US energy supply.
We are concerned that the development of CMSPs could be used to delay energy projects and could hurt future US energy supply. For instance, the regional planning bodies could potentially be given the authority to review, approve or disapprove offshore oil and gas leasing activities and offshore renewable energy projects. Conventional and renewable offshore energy is already severely hampered by a system that required dozens of permits and approvals and invites seemingly endless litigation. Any new system should seek to improve the regulatory processes and reduce litigation while increasing energy supply. Ultimately, it is our concern that implementation of a CMSP structure as described in the Interim Framework will be a de facto moratorium on offshore energy exploration and development. We ask that the Task Force give concrete assurances that this is not the case.
The Interim Framework calls on regional planning areas to “consult scientists and technical and other experts”. While several areas of consulting expertise are mentioned, it does not mention expertise in discovering/assessing energy resources. Should a CMSP process be adopted, impacts on energy exploration, production, supply and transport should be a major criteria and appropriate technical data and analysis needs to be utilized when making such assessments. It should not be assumed that energy activities have detrimental impacts on coastal and marine ecosystems. Certainly in many cases the opposite is true.
A vital concern is the potential impact CMSPs could have on critical energy infrastructure. It is absolutely essential that any CMSP take a serious look at the impacts to ports, ingress and egress of tanker traffic, and the development of future energy infrastructure.
Finally, how the National Ocean Council administers its authority over other federal agencies and their statutory and regulatory authorities could have an enormous impact on energy production and supply. If the National Ocean Council is given authority over the application of statutes like the Clean Air Act, Clean Water Act, Safe Drinking Water Act, Outer Continental Shelf Lands Act, and other major statutes the implications could be devastating to US energy supply.
Impacts on Recreational Activities
Recreational uses of the oceans should not just be acknowledged as part of a National Ocean Policy, they should be promoted. Just as our Interior Department encourages Americans to visit our parks and scenic places, our government should also encourage Americans to enjoy the natural beauty and recreational benefits our oceans and coastal areas can provide us. Our government should encourage fishing, boating, hunting and being outdoors as activities that are healthy and can provide well-being for individuals and families alike. We have become a society that is too focused on indoor activities and is disconnected with nature. Our oceans are a place of natural beauty that should be enjoyed by all, and public access to public resources should not just be maintained but promoted by a National Ocean Policy and CMSP Framework.
We agree on the need for policies that are developed as a result of the application of science. Quality data is needed to make informed decisions. But that data must reflect the true impacts and benefits of the recreational uses of our oceans. To date, those impacts and benefits have not been adequately measured and assessed in the development of an Ocean Policy in part because recreational users, like other ocean users, have not been given a substantial enough role in contributing to the development of a policy.
In developing a CMSP document, it is vitally important that the Task Force strongly emphasize the important role our oceans play for our citizens, our culture and well-being. Our coastal and ocean regions are deeply ingrained in our history and society. They provide recreational benefits that are important spiritually and are beneficial to the economies of communities across the nation.
Finally, the recreational use of our oceans is important to the public’s understanding of the importance of their natural beauty and resources. Such activities serve to promote the values of conservation while reinforcing the need and tradition of multiple uses. Let’s develop an ocean policy that preserves and promotes these values and traditions.
Conclusion
We appreciate the opportunity to comment on the Interim Framework for Effective Coastal and Marine Spatial Planning. The development of a National Ocean Policy could have great benefits to the United States if it follows the correct principles. We hope that the Task Force ensures that a CMSP system “streamline and improve the rigor, coherence and consistency of decision-making and regulatory processes” and “Increase certainty and predictability of economic investments”. But it is also critical that these things are done without a detrimental impact to overall commercial and recreational activities. We have listed numerous concerns that indicate we have significant doubts about the wisdom of adopting of the proposed National Ocean Policy and Interim Framework.
We applaud the Task Force’s insistence on increasing the basic scientific knowledge and data integration that will be needed for us to make future informed decisions with or without the adoption of CMSP. But that scientific knowledge and data must include real world data from the commercial and recreational sectors that demonstrate the actual impacts of costal and marine commercial and recreational activities.
Finally, we can’t stress enough the need for a more inclusive process. The best policies will be developed with the greatest participation and input from the various impacted stakeholders. To date, the Task Force does not appear to be responsive to several of the concerns provided by commercial and recreational users. We are concerned about the emergence of policy recommendations that could have harmful economic impacts, including impacts on high-paying jobs. We urge the Task Force to take a broader approach and pursue a National Ocean Policy that will provide the greatest benefit to the American people.