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  • The Impact of Coastal and Marine Spatial Planning on Deepwater Drilling

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    By: Joan M. Bondareff

    Publication: Natural Resources & Environment Volume 26, Number 2, Fall 2011, The American Bar Association.

    An report just published by ABA found that Coastal and Marine Spatial Planning will be beneficial to deepwater drilling, because it will streamline the permitting and licensing process.  The report concluded:

    “The development of CMSPs may have a positive impact both on deepwater drilling for oil and gas as well as for the development of renewable resources. Even if the CMSPs are not strictly enforceable, they will provide an excellent opportunity for interested stakeholders, at the federal, state, and local government levels, as well as industry and NGOs, to meet and discuss how the waters of the EEZ and Great Lakes should be managed.

    It was President Reagan who declared that the United States has exclusive rights to the resources of the EEZ. Unless the United States develops comprehensive marine spatial plans, we will be unable to take full advantage of his proclamation and vision but will continue to battle each permit and each new use of the ocean on a case-by-case basis.”

    The full report is available here

    Published in Natural Resources & Environment Volume 26, Number 2, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
    thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
    The Impact of Coastal and Marine Spatial
    Planning on Deepwater Drilling
    Joan M. Bondareff
    Ms. Bondareff is of counsel in the Washington, D.C., office of Blank Rome,
    LLP. Before joining Blank Rome, Ms. Bondareff was chief counsel and acting
    deputy administrator of the Maritime Administration, U.S. Department
    of Transportation. She may be reached at Bondareff@BlankRome.com.
    It has been more than one year since the BP Deepwater
    Horizon (DWH) rig blew up in the Gulf of Mexico,
    killing eleven workers on the rig, “producing the largest
    accidental marine oil spill in U.S. history,” destroying
    wetlands in Louisiana, and deeply affecting the lives of
    residents and fishermen along the Gulf Coast. National
    Commission on the BP Deepwater Horizon Oil Spill and
    Offshore Drilling (BP Commission), Deep Water: The
    Gulf Oil Disaster and the Future of Offshore Drilling
    (Final Report), www.oilspillcommission.gov/sites/default/
    files/documents/DEEPWATER_ReporttothePresident_FINAL.
    pdf. A Gulf Coast Claims Facility has been established to
    administer a $20 billion fund from the responsible party, British
    Petroleum (BP), and final payments to affected claimants
    are just being proffered by the administrator of the fund, Ken
    Feinberg, a well-known lawyer and manager of similar trust
    funds for compensation of victims. The National Oceanic and
    Atmospheric Administration (NOAA), as lead trustee for
    natural resources damaged or lost as a result of the spill, has
    begun the natural resource damage assessment process required
    by the Oil Pollution Act of 1990. It is difficult at this point to
    catalogue the extent of the damage and to foresee the impact,
    psychological and otherwise, on the lives of the fishermen.
    In the midst of this ongoing damage assessment, claims,
    and restoration process, three seemingly unrelated events have
    taken place. On July 19, 2010, President Obama issued Executive
    Order 13547 creating a new ocean policy for the United
    States, establishing a new National Ocean Council and calling
    for the creation of a series of Coastal and Marine Spatial Plans
    (CMSPs) along all of our coasts, including Hawaii, Alaska, and
    the Great Lakes. Exec. Order No. 13547, 75 Fed. Reg. 43,023
    (July 22, 2010). Initially, following the DWH spill, the administration
    imposed a moratorium on all deepwater drilling permits
    but recently has lifted the moratorium and issued a number of
    new deepwater drilling permits in the Gulf of Mexico. Finally,
    recent conflicts in Libya and the Middle East have driven
    up the price of oil and gas in the United States, resulting in
    increasing demands to use the Strategic Petroleum Reserve to
    tamp down the price of gas at the pump and calls for increased
    development of offshore U.S. oil and gas reserves.
    Were the United States to develop and implement a series
    of CMSPs along the U.S. coasts, it could help resolve use
    conflicts for offshore waters, allow the public to participate
    more fully in the debate where to site current and new sources
    of energy, including oil and gas and renewable sources, and potentially
    facilitate the issuance of additional deepwater drilling
    permits. This article reviews Executive Order 13547, explains
    the nature of coastal and marine spatial planning, reviews the
    legal authority for and impact of CMSPs, and attempts to predict
    the impact of this planning process on deepwater drilling.
    First, let us review the history of coastal and marine spatial
    planning. The concept of maritime spatial planning, as it
    is known in Europe, originated, in part, from the boundary
    principles of the U.N. Convention on the Law of the Sea
    (UNCLOS, 1982). UNCLOS allowed nations to expand their
    jurisdictional claims to the limits of the 200-mile Exclusive
    Economic Zone (EEZ), a 12-mile territorial sea, and a 24-mile
    contiguous zone. Although President Reagan rejected Part XI
    of UNCLOS governing deep seabed mining, he accepted the
    rest of UNCLOS and proclaimed that the United States had
    sovereign rights to explore, exploit, conserve, and manage the
    natural resources of a 200-mile EEZ around the United States,
    thereby expanding the nation’s boundaries in a manner more
    extensive perhaps than the Louisiana Purchase. Proclamation
    No. 5030, 48 Fed. Reg. 10,605 (Mar. 10, 1983).
    The principle of marine spatial planning itself may have
    been first adopted in Agenda 21, a set of principles produced
    by the Rio Conference of 1992. Finally, it is reiterated in
    Executive Order 13547, calling for a new ocean policy for the
    United States, discussed at length below.
    The European Union, recognizing its dependence and proximity
    to the sea, took an early lead in calling upon its member
    nations to develop marine spatial plans. As Fokion Fotiadis, the
    Director-General of the European Commission’s Directorate-
    General for Maritime Affairs and Fisheries put it recently, “[t]he
    European Commission is committed to pursuing . . . and [facilitating]
    the development and use of maritime spatial planning within
    the European Union as part of our new sustainable approach to
    manage our seas and oceans.” European Commission, Maritime
    Spatial Planning for the EU’s Seas and Oceans: What’s It All About?
    (Luxembourg: Publications Office of the European Union, 2010).
    Several European nations have developed marine spatial
    plans to resolve use conflicts. For example, Belgium has
    developed a master plan for the Belgian part of the North Sea
    and designated areas for offshore wind, marine protected areas,
    and sand and gravel extraction, among other uses. A similar
    integrated management plan for the North Sea off the NetherPublished
    in Natural Resources & Environment Volume 26, Number 2, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
    thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
    lands has been developed and identifies offshore use zones for
    shipping routes, military exercises, and ecologically valuable
    areas. Finally, Germany has established a plan to resolve
    conflicts among old and new energy uses. Further analysis can
    be found in F. Douvere & C. N. Ehler, New Perspectives on Sea
    Use Management: Initial Findings from European Experience with
    Marine Spatial Planning, J. Envtl. Mgmt. 90 (2009) at 77–88.
    In the United States, early references to a comprehensive
    oceans policy and the need to plan for current and new uses
    of the oceans appear in the reports of the two ocean commissions,
    the Pew Ocean Commission and the U.S. Commission
    on Ocean Policy. Their reports were issued in 2003 and 2004,
    respectively. Congress held hearings on the two Commission
    reports but did not adopt many of their recommendations.
    The concept of marine spatial planning in the EEZ has never
    been codified in U.S. law.
    On June 12, 2009, President Obama established an interagency
    task force on ocean policy and directed the group to
    report back to him in one year on the state of the oceans in
    the United States. The Task Force produced its final report
    on July 19, 2010. See The White House Council on Environmental
    Quality, Final Recommendation of the Interagency Ocean
    Policy Task Force (July 19, 2010), www.whitehouse.gov/files/
    documents/OPTF_FinalRecs.pdf. The report identified a new
    ocean policy for the United States and included as one of its
    principal recommendations that the United States should develop
    CMSPs to manage the resources of the EEZ, OCS, and
    territorial sea. The Task Force’s recommendations were also
    incorporated by reference in Executive Order 13547.
    In brief, the new ocean policy calls for protecting, maintaining,
    and restoring the health and biological diversity of
    ocean, coastal, and Great Lakes ecosystems and resources;
    using the best available science to inform decisions; supporting
    sustainable uses of the ocean, coasts, and Great Lakes; increasing
    scientific understanding of these ecosystems; and ensuring
    a comprehensive and collaborative framework for the stewardship
    of these resources. (Task Force Report, supra, at 14–15).
    The stakeholders, including federal, state, tribal and local
    authorities, regional governing bodies, NGOs, and the public
    and private sectors are tasked with producing CMSPs.
    As defined in Executive Order 13547, the term “coastal and
    marine spatial planning” means:
    a comprehensive, adaptive, integrated, ecosystem-based, and
    transparent spatial planning process, based on sound science,
    for analyzing current and anticipated uses of ocean, coastal, and
    Great Lakes areas. Coastal and marine spatial planning identifies
    areas most suitable for various types or classes of activities in
    order to reduce conflicts among uses, reduce environmental impacts,
    facilitate compatible uses, and preserve critical ecosystem
    services to meet economic, environmental, security, and social
    objectives. In practical terms, coastal and marine spatial planning
    provides a public policy process for society to better determine how
    the ocean, our coasts, and Great Lakes are sustainably used and
    protected—now and for future generations. Exec. Order No. 13547,
    75 Fed. Reg. 43,023 (July 22, 2010) (emphasis added).
    While the definition is certainly a mouthful, the ultimate
    goal of marine spatial planning is a transparent and flexible
    planning process to identify locations for offshore uses and to
    anticipate and resolve conflicts among competing uses. The
    area to be covered by the plans includes the territorial sea of
    the United States, the 200-mile EEZ, and the Continental
    Shelf landward to the mean high-water line. The plans also
    will include the waters of the Great Lakes from the ordinary
    high-water mark to the limit of the U.S. and Canada maritime
    boundary. The Task Force Report explicitly states that
    privately owned lands are excluded from the planning areas.
    However, the waters may reach inland to cover bays and estuaries
    in coastal and Great Lakes settings, which could include
    the internal waters of the Chesapeake Bay and Puget Sound.
    Membership of each regional planning group includes
    representatives of federal, state, and tribal authorities pertaining
    to each region. States are divided into nine regions (for
    purposes of developing the CMSPs), as follows:
    1. Alaska/Arctic Region: Alaska;
    2. Caribbean Region: Puerto Rico and U.S. Virgin Islands;
    3. Great Lakes Region: Illinois, Indiana, Michigan,
    Minnesota, New York, Ohio, Pennsylvania*, and Wisconsin;
    4. Gulf of Mexico Region: Alabama, Florida, Louisiana,
    Mississippi, and Texas;
    5. Mid-Atlantic Region: Delaware, Maryland, New Jersey,
    New York, Pennsylvania, and Virginia;
    6. Northeast Region: Connecticut, Maine, Massachusetts,
    New Hampshire, Rhode Island, and Vermont;
    7. Pacific Islands Region: Hawaii, Commonwealth of the
    Northern Mariana Islands, American Samoa, and Guam;
    8. South Atlantic Region: Florida, Georgia, North
    Carolina, and South Carolina; and
    9. West Coast Region: California, Oregon, and Washington.
    [*Pennsylvania is included twice because it is both a coastal and
    Great Lakes state.]
    For a better depiction of the regions affected, please view
    the NOAA map of the United States divided into large
    marine ecosystems and the nine regional planning areas at
    Council on Environmental Quality, Final Recommendation of
    the Interagency Ocean Policy Task Force, 52 (July 19, 2010),
    Were the United States to develop
    and implement a series of Coastal
    and Marine Spatial Plans along the
    U.S. coasts, it could help resolve
    use conflicts for offshore waters.
    Published in Natural Resources & Environment Volume 26, Number 2, Fall 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion
    thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
    www.whitehouse.gov/files/documents/OPTF_FinalRecs.pdf.
    A number of states have initiated their own ocean planning
    processes that may well serve as models for the new plans.
    Because state jurisdiction ends generally at the 3-mile limit,
    working with federal agencies on CMSPs will provide an opportunity
    for states to influence the outcome of the plans for
    the waters of the adjacent EEZ and Great Lakes. The following
    states have developed ocean management plans: Massachusetts,
    Hawaii, California, Rhode Island, Oregon, and Washington
    State. Some of the state plans have also proved useful in helping
    to resolve siting conflicts. For example, the Commonwealth of
    Massachusetts was able to identify the location of an offshore
    wind project by designating two areas for offshore wind. See Peter
    Brennan, Massachusetts Ocean Plan Delegates Offshore Wind
    Regulation, Offshore Wind Wire (Jan. 4, 2010), www.offshorewindwire.
    com/2010/01/04/ocean-plan-delegates-regulation.
    California, on the other hand, adopted an ocean plan in 2005
    that continued to call for a ban on drilling on the OCS adjacent
    to California. See Water Quality Control Plan, Ocean Waters
    of California (2005), www.swrcb.ca.gov/water_issues/programs/
    ocean/docs/oplans/oceanplan2005.pdf.
    The Task Force Report established a five-year schedule
    for bringing the nine CMSPs into fruition. The Report
    anticipates that the first year will be devoted to public and
    stakeholder outreach; organizing the respective federal agency
    representatives in each region; developing a model agreement;
    organizing and convening a national workshop; and
    development by the National Ocean Council (NOC) of a
    national information management system. In his 2012 budget,
    President Obama requested $6.8 million for CMSP work and
    $20 million for regional ocean partnership grants to foster the
    work of the NOC and begin the regional planning process.
    Regions will have to have some seed money to begin the
    planning process and staff the development of CMSPs; but, it
    remains to be seen whether the request for federal funds will
    be agreed to in this era of budget cutting.
    The next two years are to be spent on development, in
    the regions, of a work plan and an initial regional planning
    process. Over the next three years, the regions should complete

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