Law to affect permitting of energy facilities and commercial developments.
On May 28, 2008, Massachusetts Governor Deval Patrick signed the Oceans Act of 2008. This legislation makes Massachusetts the first state in the nation to create a uniform mechanism for managing projects and uses in ocean areas. The Act requires the development of a comprehensive plan for the management of Massachusetts's ocean resources (“the Plan”), focused on balancing the need for both commercial uses of the ocean and conservation of its resources. Prior to the Act, regulation of ocean activities in the Commonwealth was divided between numerous state agencies, each with its own jurisdictional and regulatory standards.
With the adoption of the Plan, state officials will be able to identify which geographic locations are (and are not) suited for particular uses, thereby avoiding the potential for economic and ecological conflicts that result from either pursing ocean development in inappropriate geographic locations, or failing to pursue development in appropriate areas. While other states (such as Oregon, Hawaii, and North Carolina) have created ocean authorities to organize and manage ocean development, no state has required the creation of a comprehensive plan like the one contemplated by the Massachusetts Oceans Act of 2008.
The Act will affect anyone applying for certificates, licenses, permits, or approvals for offshore projects or activities occurring within three miles of the state’s coastline. Projects and activities covered by the Act include pipeline placement, wind farming, recreational and commercial fishing, conservation, aquaculture, sand mining projects, tidal energy projects, and desalination plants.
How and why was the Massachusetts Oceans Act of 2008 created?
In 2003, the Pew Ocean Commission, an independent, non-profit agency, reported that federal and state governments were not managing ocean resources in economically or ecologically sustainable ways. Likewise, the U.S. Commission on Ocean Policy proposed federal policy reforms to address the increasing, and often conflicting, demands on ocean resources. At the state level, then-Governor Mitt Romney created the Massachusetts Ocean Management Initiative in 2003, partly in response to the Buzzard’s Bay oil spill and the proposed Cape Wind project. A central part of this initiative was the establishment of a 23-member Ocean Management Task Force, which issued a report in March 2004 recommending several policy initiatives aimed at improving ocean management and governance strategies.
Although comprehensive oceans legislation was first introduced in the Legislature in 2004, the current Act was passed by the Massachusetts Senate in September of 2007, and by the House in February of 2008. After a conference committee, the consensus bill was signed into law by Governor Patrick on May 28.
What does the Massachusetts Oceans Act of 2008 do?
The Plan
The Massachusetts Oceans Act of 2008 creates both oversight of ocean-based development and coordination between state agencies of ocean policies and regulations. The Act authorizes the Secretary of the Executive Office of Energy and Environmental Affairs (“the Secretary”) to create, implement, and modify a management plan governing state ocean waters and associated submerged land. The Secretary has appointed Deerin Babb-Brott, the former Director of MEPA, as the new Assistant Secretary for Oceans and Coastal Zone Management, where he will have responsibility for developing the Plan and for overall implementation of the Act.
The Act requires that the Plan comport with a number of principles and standards. Among other requirements, the Plan must:
- Set forth the Commonwealth’s goals, siting priorities, and standards for proper stewardship of its ocean waters held in trust for the benefit of the public;
- Coordinate uses that include international, federal, state and local jurisdictions;
- Foster sustainable uses that capitalize on economic opportunity without significant detriment to the ecology or natural beauty of the ocean; and
- Identify appropriate locations and performance standards for activities, uses, and facilities allowed under Sections 15 and 16 of Chapter 132A (statutory provisions that authorize a wide variety of ocean-based activities).
Creation of the Plan
The Act requires the Secretary to promulgate a final version of the Plan by December 31, 2009.
The Act creates the Ocean Advisory Commission and the Ocean Advisory Council to assist the Secretary in creating the Plan.
- The seventeen-member Ocean Advisory Commission, which is to include representatives of state agencies, the Legislature, municipalities, and environmental, fishing, and marine industry interests, is charged with making recommendations to the Secretary for the “proper management and development of the [P]lan”.
- The Ocean Advisory Council, consisting of nine scientific members from academia, industry, and government, must gather reliable scientific information on ocean resources so that the Secretary can make decisions based on the best available science.
The Fund
The Act establishes the Ocean Resources and Waterways Trust Fund (“the Fund”), which will be funded by proceeds from ocean development mitigation fees, appropriations and grants, Legislative appropriations, and income from the investment of amounts credited to the Fund. Monies received from mitigation fees will be put primarily towards offsetting any environmental damages or navigational issues created by the project. Any other non-mitigation income will be dedicated to protecting and restoring the ocean ecosystem.
Permitting and Licensing
The Act also includes several provisions governing the permit and license issuing processes. All state agencies must consult the Plan before granting certificates, licenses, permits, and approvals, and may only grant applications that are “consistent, to the maximum extent practicable, with the [P]lan”. In this respect, the Act does not establish a new regulatory process for receiving permits, but merely guides regulatory decision making according to a uniform system of priorities and standards. The greatest impact of these provisions is expected to be on the Chapter 91 licensing review process.
Fishing
The Act explicitly states that commercial and recreational fishing remain under the exclusive control of the Division of Marine Fisheries (DMF). The DMF has the authority to develop, promulgate, and enforce any aspect of the Plan that directly regulates commercial fishing, and has final oversight over any provisions which may tangentially affect fishing interests.
Energy
The Act amends Section 15 of the Massachusetts Ocean Sanctuaries Act to permit the establishment of offshore renewable energy facilities in areas classified as ocean sanctuaries. Previously, the Ocean Sanctuaries Act prohibited all “construction or operation of offshore or floating electric generating stations,” among other activities, from designated ocean sanctuaries. The Act lifts this total prohibition, permitting energy facilities projects in ocean sanctuaries so long as those projects are for renewable energy generation, of “appropriate scale,” (as to be defined by the Plan), and are otherwise consistent with the Plan. This provision, coupled with the recent changes to the Chapter 91 regulations, is expected to provide a significant regulatory boost to renewable energy projects. The Cape Cod Ocean Sanctuary is expressly excluded from this provision, thus continuing to bar any energy facility (renewable or otherwise) from this location.
Enforcement
The final version of the Plan will be incorporated into Massachusetts’s existing Coastal Zone Management Program and enforced through the state’s regulatory permitting process, including the Massachusetts Environmental Policy Act (MEPA) and the waterways statute (Mass. Gen. Laws Chapter 91).
Whom it Affects
The Act applies to any applicant for a permit or license relating to a project that will be executed offshore but within three miles of the state’s coastline. However, projects that have achieved one of the following prior to the effective date of the Act are not subject to the Act, and are thus not required to be consistent with the Plan:
- Projects that have applied for a Chapter 91 license and received a written determination of completeness from the Department of Environmental Protection (DEP);
- Projects subject to Mass. Gen Laws Chapter 30, Section 61 that have received a Certificate of Adequacy regarding a final environmental impact report (EIR);
- Projects that, if subject to the jurisdiction of the Energy Facilities Siting Board, have received both a final Board decision and a Certificate of Adequacy regarding a draft EIR.
What can we expect in the future?
The Massachusetts Oceans Act of 2008 marks a major step toward making comprehensive ocean management a reality, both in Massachusetts and nationally. There are, however, several outstanding issues that may arise during the implementation of the Act and the Plan.
The Act does not outline an appeal mechanism for permit applicants who are caught between competing state agencies interpretations of the Plan. Nor does the Act outline an appeal mechanism for when a permit applicant (or permit opponent) believes that an agency interpretation of what is “consistent to the maximum extent practicable” with the Plan is actually inconsistent with the Secretary’s intent. Presumably, the Act intends such appeals to be addressed first through the permitting agency’s own appeal process, and then via appeal to the Superior Court. Without a single mechanism for the review of competing agency interpretations of the Plan, however, the Act may have limited practical success in achieving its goal of unifying standards and increasing predictability for permit applicants.
Another issue concerns the interaction between the Act and federal law. Certain federal agencies (including the U.S. Army Corps of Engineers, the Federal Energy Regulatory Commission, and the Coast Guard), maintain concurrent jurisdiction with the Commonwealth over state waters. Although the Act requires that the Plan “coordinate uses that include international, federal, state and local jurisdictions,” it remains possible that, if current or future federal law were found to conflict with provisions of the Act, federal law would preempt the Act in certain respects.
Fortunately, the Act provides for significant public input into the development of the draft Plan. The Act requires public access to the draft Plan (at least six months prior to the promulgation of the final Plan), requires that public hearings be held in at least four different coastal regions, and requires a 60-day public comment period. The Act also requires the Secretary to promulgate regulations for the implementation, administration, and enforcement of the Act, a process that will itself be open to public comment. Finally, the Act authorizes the legislative Joint Committee on State Administration and Regulatory Oversight to hold its own hearings to review both the proposed Plan and any proposed regulations. There will thus be significant opportunity in the coming months for those interested in shaping the Plan to provide their opinions and expertise.