The Oceans Act of 2008 (Chapter 114 of the Acts of 2008) was signed into law by Governor Deval Patrick on May 28, 2008. The Act, which is the first of its kind in the country, is an effort by the legislature to create a uniform regulatory system to balance current and future commercial and recreational uses of Massachusetts’s ocean resources with the need to protect marine habitats and natural resources. The Act calls for a comprehensive ocean management plan to be developed by the Secretary of the Executive Office of Energy and Environmental Affairs (EOEEA) by December 31, 2009. Once adopted, all certificates, licenses, permits and approvals for any proposed structures, uses or activities within the waters of the Commonwealth shall be consistent, to the maximum extent practicable, with the plan. The geographic jurisdiction of the Act generally includes the waters and associated submerged lands of the ocean, including the seabed and subsoil, lying between the coastline and the seaward boundary of the Commonwealth (generally three miles from the coastline). A map depicting the planning area can be found on the website of the Office of Coastal Zone Management at http://www.mass.gov/czm/oceanmanagement/oceans_act.
Along with promoting the protection of wildlife and natural resources, the primary goals of the Act are to preserve the traditional uses associated with the ocean waters, such as fishing, and to plan for future projects, including offshore renewable energy sources, by determining the optimal locations for such projects and establishing performance standards and a regulatory regime by which those projects will be developed.
Development of the Ocean Management Plan
The Act calls for the formation of a 17-member ocean advisory commission to make recommendations to the EOEEA regarding the content of the plan. The ocean advisory committee will include various legislators, representatives from environmental, fishing, and energy organizations, as well as representatives from the Cape Cod Commission, Martha’s Vineyard Commission, Merrimack Valley Planning Commission, Metropolitan Area Planning Council and the Southeastern Regional Planning and Economic Development District. In addition, an ocean science advisory council is to be formed, which will undertake the necessary research to guide the science-based considerations of the plan.
A first draft of the plan will be made available to the public in July 2009. There will be a public comment period at that time, and at least four public hearings will be held (one in each region with a regional planning authority). The public comment period will continue for at
least 60 days after the date of the final hearing. The EOEEA must adopt a final plan by December 31, 2009. Once the plan has been adopted, all agencies under the jurisdiction of the EOEEA are expected to make any necessary modifications to their regulations to ensure compliance with the plan.
Activities Regulated Under the Act
Once adopted, all certificates, licenses, permits and approvals for any proposed structures, uses or activities within the waters of the Commonwealth shall be consistent, to the maximum extent practicable, with the plan.
The Act affirms that the Massachusetts Division of Marine Fisheries will continue to have exclusive jurisdiction over commercial and recreational fishing, and that any aspect of the Act or the management plan that affects fishing in any way will be overseen and enforced by the Division.
In addition, the Act modifies the statutory provisions governing ocean sanctuaries, known as the Massachusetts Ocean Sanctuaries Act (M.G.L. c. 132A, §§ 12A-18). Prior to the adoption of the Oceans Act, offshore or floating electric generating stations were prohibited in ocean sanctuaries. The Oceans Act modifies the Oceans Sanctuaries Act to permit appropriate-scaled renewable energy facilities (which will be further defined in the ocean management plan) in ocean sanctuaries other than the Cape Cod Ocean Sanctuary provided the renewable energy facility is consistent with the ocean management plan, and the siting of the facility takes into account all relevant factors, including protection of the public trust, compatibility with existing uses, proximity to the shoreline, appropriateness of technology and scale, environmental protection, public safety, and community benefits. If applicable, the Cape Cod Commission and Martha’s Vineyard Commission may review the offshore energy facility as a development of regional impact.
Certain projects that are underway prior to the effective date of the Act (August 26, 2008) do not need to comply with the ocean management plan. In order to be exempt from the ocean management plan, a project must fall into one of the following categories by the effective date:
1. A project for which a Chapter 91 license application has been filed and a written determination of completeness has been received from the Massachusetts Department of Environmental Protection;
2. If subject to Section 61 of the Massachusetts Environmental Policy Act statute (M.G.L. c. 30), a project that has received a certificate of adequacy with respect to a final environmental impact report; or
3. If subject to the jurisdiction of the Energy Facilities Siting Board (EFSB), a project that has received both a final decision from the EFSB and a certificate of adequacy with respect to a draft environmental impact report.
How the Oceans Act May Affect You
As noted above, all certificates, licenses, permits and approvals for any proposed structures, uses or activities within the waters of the Commonwealth shall be consistent, to the maximum extent practicable, with the ocean management plan. Since the final content of the plan is unknown, all steps necessary to qualify for one of the three exemptions should be completed prior to August 26, 2008, the effective date of the Act.
Parties who have a vested interest in current or future projects within the Act’s jurisdiction should ensure that their interests are represented on the advisory commission. In addition, they should plan to provide comments to the EOEEA during the public comment period.
This advisory was prepared by Robert A. Fishman and Brent M. McDonald of Nutter’s Land Use practice group. For further information, please contact Bob, Brent, or your Nutter attorney at 617-439-2000.
This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.