Beveridge & Diamond
 

Massachusetts Enacts First in the Nation Ocean Management Act

Beveridge & Diamond, P.C., September 12, 2008

On May 28, 2008 Massachusetts Governor Deval Patrick signed the first in the nation Ocean Management Act into law.  See Chapter 114 of the Acts of 2008 (the “Act”).  The Act became effective on August 26, 2008.  The legislation requires the development of a comprehensive management plan for roughly all of the State controlled waters of Massachusetts.1   The intent of the Act is to balance natural resource preservation with traditional and new uses of the ocean, including renewable energy.

The Act places the ocean waters and ocean-based development of the Commonwealth, within the ocean management planning area (“OMPA”) described in the Act, under the authority of the Secretary of Energy and Environmental Affairs (“Secretary”).  The Act requires the Secretary in conjunction with the Ocean Advisory Commission and the Ocean Science Advisory Council, established pursuant to the Act,  to develop an integrated Ocean Management Plan (“OMP”) by December 31, 2009.  A draft OMP is to be completed by July, 2009 and the Act provides for significant public input before final adoption of the OMP.  Upon the Secretary’s adoption of an OMP, all certificates, licenses, permits and approvals for any proposed structures, uses or activities in the OMPA shall be consistent, to the maximum extent practicable, with the OMP.

In general, the OMP is intended to address the following:  (i) the commonwealth’s goals, siting priorities and standards for use of its ocean waters; (ii) the preservation and protection of traditional uses of the ocean; (iii) the identification and protection of special, sensitive or unique estuarine and marine life and habitats; and (iv) the identification of appropriate locations and performance standards for new activities, uses and facilities within the OMPA.  One of the most significant impacts of the Act is that, upon adopting the OMP,  it amends the Ocean Sanctuary Act, G.L.c. 132A, § 15, to expressly allow the siting of renewable energy facilities within all Ocean Sanctuaries except the Cape Cod Sanctuary provided the facility meets certain criteria.

The Act is seeking to strike a balance between the competing interests vying to make use of the ocean.  The Act establishes an Ocean Advisory Commission (“Commission”) to be comprised of seventeen members, including state legislators, industry representatives, environmental organizations and governmental planning agency representatives, to advise the Secretary on the development of the OMP.  It also establishes a nine member Ocean Science Advisory Council (“Council”) to assist the Secretary in creating a baseline assessment of the OMPA and obtaining scientific information necessary for the development of the OMP.  The Council will be comprised of scientists from academic institutions, private, non-profit organizations (at least one of whom will be designated by the Massachusetts Fishermen’s Partnership), and government agencies. 

Upon adoption of the OMP, all certificates, licenses, permits and approvals for any proposed structures, uses or activities in the OMPA shall be consistent, to the maximum extent practicable, with the OMP.  For example, all new liquefied natural gas terminals, offshore wind and tidal energy facilities, sand and gravel mining operations, desalination plants, and deepwater aquaculture will be reviewed to ensure maximum compliance with the OMP.  Projects that have received approval prior to the effective date of the Act are not subject to the OMP.2  It is unclear whether the Act requires local permitting authorities to consider the OMP in their decision making process.  The language of the Act is broad and does not expressly limit its application to state licenses or permits.  Thus, the implications for local permitting are uncertain.

The Act expressly states that it does not alter the jurisdictional authority of the Division of Marine Fisheries (“Division”) and it provides limitations on the regulation of commercial and recreational marine uses through the OMP.  §21 of the Act.  The Act states that it shall not be construed to prohibit the transit of commercial fishing or recreational vessels in state ocean waters and provides that commercial and recreational fishing are allowable uses within the OMPA, subject to the exclusive jurisdiction of the Division.  See § § 21 and 2, respectively of the Act.  Any component of a plan which regulates commercial and recreational fishing must be developed, promulgated and enforced by the Division pursuant to G.L.c.130.  However, the OMP may include provisions that, while they are not primarily directed at the regulation of fishing, may have an impact on commercial and recreational fishing.  In such cases, the Act requires that these components minimize negative economic impacts on commercial and recreational fishing and if a component has a reasonably foreseeable impact on fishing it shall be referred to the Division for evaluation.  The Division is charged with developing and recommending, if possible, suggestions or alternatives to mitigate or eliminate any adverse impacts an OMP component may have on commercial and recreational fishing.  It will be interesting to see how the Secretary and the Division balance the competing interests and how these provisions of the Act are implemented and ultimately interpreted by the courts.  See § 2 of the Act.

The Act also establishes a dedicated fund to be known as the Ocean Resources and Waterways Trust Fund.  The fund will include revenue from legislative appropriations and other authorizations, other appropriations or grants to the fund, income from fund investment and ocean development mitigation fees.  The fund will be used primarily to mitigate the impacts of ocean development projects on marine habitat, marine resources and public navigation.  Amounts not specifically designated under the Act shall be used for environmental enhancement, restoration and management of ocean resources.  Unexpended funds shall not revert to the general fund and shall be available in subsequent fiscal years.

The goal of the Act is to establish a comprehensive plan to manage development in and the use of Massachusetts’ ocean waters.  It is not intended to create a new bureaucracy or permitting process, but instead seeks to provide uniform guidance to the current regulatory agencies in their review of ocean uses and projects.  The Act provides for significant public input and parties with an interest, economic or otherwise, in the OMP should take advantage of this process to ensure that their interests are duly considered.

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For further information please contact Deborah A. Eliason at deliason@bdlaw.com


1 State controlled waters, subject to the Act, are defined as any waters and associated submerged lands of the ocean, including the seabed and subsoil, lying between the line designated as the “Nearshore Boundary of the Ocean Management Planning Area”, which is depicted on a plan dated January 31, 2006, prepared by the office of coastal zone management and maintained at the executive office of energy and environmental affairs and with the clerks of the house and the senate, and the seaward boundary of the commonwealth, as defined in 43 U.S.C. § 1312.

2 Any project that, before the effective date of the Act, has: (1) filed a license application under Chapter 91 of the General Laws and received a written determination of completeness from the Department of Environmental Protection; (2) if subject to section 61 of Chapter 30 of the General Laws, received a certificate of adequacy regarding a final environmental impact report; or (3) if the project is subject to the jurisdiction of the energy facilities siting board, received both a final decision from the energy facilities siting board and a certificate of adequacy regarding a draft environmental impact report, shall not be subject to the requirements of said ocean management plan. Chapter 114, § 22 of the Acts of 2008.