Confusion lingers for council about new ocean policy

By Andrew Jensen
Alaska Journal of Commerce

Questions about a new national ocean policy remain, even after a visit to Alaska from the assistant administrator of the National Oceanic and Atmospheric Administration.

Larry Robinson, the No. 2 at NOAA, held a town hall meeting Nov. 12 in Anchorage about the new National Ocean Council formed through an executive order signed by President Barack Obama July 19.

Robinson also met separately with members of the North Pacific Fishery Management Council, which expressed concerns about its role under the new national ocean policy.

The new policy sets as a goal the comprehensive management of the oceans, coasts and Great Lakes through coastal marine spatial planning across all user groups, including fisheries, oil and gas, shipping and national defense.

The National Ocean Council is made up of 27 federal entities, including the departments of defense, state, homeland security, interior and commerce. NOAA is an agency of the Commerce Department and will be represented on the council by director Jane Lubchenco. The executive order signed by Obama also calls for the formation of nine regional planning bodies.

This is where the North Pacific council confusion enters. The North Pacific and the seven other regional fisheries management councils authorized under the Magnuson-Stevens Act are charged with many of the same actions that will fall under the holistic approach of coastal marine spatial planning.

At the town hall meeting in the Dena’ina Center — and in meetings with North Pacific council members — Robinson stressed repeatedly that the National Ocean Council and regional planning bodies are not a new bureaucracy and that nothing in the executive order supercedes existing authorities granted under law.

“At present we regulate human activity with a suite of over 140 statutes, regulations and policy,” Robinson said. “We firmly believe new regulation is not the answer. We believe we must change our approach to recognize there is only one ocean and we need to learn to use it without exhausting its limited resource.”

North Pacific council executive director Chris Oliver said it is far from clear that the new oceans policy is not a bureaucracy or that it is not new regulation.

“It certainly looks like a new layer of bureaucracy,” Oliver said. “There’s no question in my mind about that. I don’t know how anyone could dispute that. It’s going to require a lot of resources to maintain.”

Robinson said the new policy will require $6.77 million in start-up funds to run the coastal marine spatial planning program and another $20 million is being made available in grants to states to form the regional planning bodies. Oliver said that’s vexing for the North Pacific council — which also saw $54 million appropriated by NOAA to encourage the implementation of catch share programs earlier this year.

“Those are resources that are important to the councils, we don’t see any way those resources aren’t going to be diverted into this new bureaucratic process whether it has regulatory authority or not,” Oliver said.

The North Pacific council recently requested $3.8 million to fund start-up costs for its enhanced observer program in the Gulf of Alaska.

“It is very frustrating when we look at our other existing budgetary needs,” Oliver said. “The observer program is a prime example. It’s a fundamental underpinning of our whole management program. Yet we’re not getting any traction on help funding that.”

There is a Dec. 10 deadline to solicit the grant funds to set up a regional ocean partnership for Alaska. The term “regional ocean partnership” is also a new one, and one not existing in the executive order. It did exist in a piece of legislation introduced on the first day of the 110th Congress in 2007, also known as the “Big Ocean Bill” that attracted 70 co-sponsors in the House but never made it out of committee.

Jennifer Lukens, coastal marine spatial planning director for NOAA, said the purpose of the policy is to improve coordination and communication between disparate departments with some form of marine jurisdiction.

“This is a way to sit down before decisions have to be made, all those folks at the table, thinking about how we use our ocean areas and with the goal of using them sustainably,” she said. “It’s looking at that comprehensively before decisions have to be made on permits. What areas are more conducive to certain uses, where can compatible uses happen … All these agencies have authority to plan, so they’re sitting down and talking before you get to a difficult challenge.”

According to the executive order, all executive departments and federal agencies “shall, to the fullest extent possible consistent with applicable law: (i) take such action as necessary to implement the policy set forth in section 2 of this order.”

“What we’re concerned from the council perspective is why — if there is supposedly no regulatory authority established — there are passages in that executive order that basically say the recommendations from the regional planning body approved by the National Ocean Council are to be implemented by the relevant federal agencies,” Oliver said. “So there’s a disconnect, a bit of a conflict, frankly.”

Oliver said that particular passage of the executive order is an indirect, if not direct, establishment of regulatory authority.

“When we’re told, ‘Don’t worry, it doesn’t create any new regulatory authority,’ and then you turn around and read that passage we go, ‘Wait a minute. This implies some sort of a regulatory action in response to recommendations of the regional planning body,'” Oliver said. “Therefore of course we’re concerned this could be levered to go around the council in terms of how we manage fisheries.”

Oliver noted that in his conversations with Robinson, he received no assurances that the North Pacific council would have a representative on any regional planning body or ocean partnership. Oliver also noted that the only body that has done any coastal marine spatial planning in Alaska is the North Pacific council.

About 1 million square miles of ocean off Alaska’s coast are closed to various species or fishing gear types through council actions.

“This notion that there’s no regulatory authority doesn’t give us much comfort when we’re told there’s no guarantee or even likelihood that the council will have a seat at that table managing ocean resources and marine spatial planning when the only marine spatial planning done to date has been done by the council,” Oliver said. “We’ve closed a million square miles, or half the area we manage, and yet we’re told we may not even have a seat at the table?

“We think that’s crazy.”

Oliver said an example of the council’s concern could be if a regional planning body or ocean partnership decided to declare an area critical habitat or close an entire area to a specific gear type such as trawl gear.

“Does that mean we’re forced to close it to bottom trawling because we’re the relevant federal agency even though we totally disagree with it?” he said. “That’s the conundrum that exists and that’s the question we’ve been asking for a long time. To be quite blunt, so far we have not received a satisfactory answer.”

The recommendations of the Ocean Policy Task Force require that a regional planning bodies establish a consultation mechanism with the regional fisheries management councils. Again, that is cold comfort to Oliver.

“We’ve had various experience with the word ‘consultation,’ which can be a totally meaningless, pro forma consultation,” Oliver said. “We’ve had that experience, frankly, with the federal government. We don’t want to be consulted. We want to be part of the decision at the table on the regional planning body. We want to be able to make arguments and vote on it. We want a representative on that council. Consultation is woefully inadequate involvement for the council.”

Gov. Sean Parnell blasted Obama’s executive order in July as another layer of federal bureaucracy that will only slow down the development process, but Oliver said he’s encouraged the state to get on board with developing the regional planning body for the Alaska/Arctic region to make sure the state can control the process.

“I think the state should be in the driver’s seat,” Oliver said. “I’m not saying the council should be in the driver’s seat. But we should be on the bus.”

Andrew Jensen can be reached at andrew.jensen@alaskajournal.com.