American Bar Association State and Local Law News, Vo. 35, No.1, Fall, 2011
The answer is that zoning certainly could be coming to an ocean, or one of the Great Lakes, near you, given the national, and even international, interest generated by the State of Rhode Island’s first-in-the-nation ocean zoning regulatory program.
And the impetus for such ocean zoning could be as diverse as the interests of the regions impacted. It may be initiated to foster alternative energy development, as resulted from the intense interest in wind energy in Rhode Island and certain other Atlantic Coast states, or it may be initiated to protect the marine ecosystem from disasters such as oil spills, which have recently impacted the Gulf Coast.
What is Ocean Zoning?
Ocean zoning may be thought of as an effort to establish specific use zones for ocean waters, based on detailed research and categorization of the ecology of the region in question, including oceanography (geological, physical, chemical and biological) and meteorology, as well as the study of other areas of the marine environment and its uses. These additional studies can include global climate change and its potential impact on the region, cultural and historical resources, fisheries, recreation and tourism, shipping and navigation, and other factors or uses specific to the region. These use zones, once delineated, can allow, limit or deny particular types or intensities of uses.
Such zoning would effectively implement the results of “marine spatial planning,” which is defined by the Interagency Ocean Policy Task Force (a federal multi-agency task force formed by Executive Memorandum in June, 2009 by President Obama and charged with developing a national ocean policy) as follows:
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 other words, the end result helps identify zones and areas where development activities should be limited because of sensitive resources or areas needing special protection, as well as to identify areas suitable for more intensive uses, such as shipping and marine transportation, mineral extraction, or offshore energy development.
What is Rhode Island’s Ocean SAMP?
The Rhode Island plan, known as the Ocean Special Area Management Plan, or Ocean SAMP in shorthand, is an ecosystem-based management plan for a defined area that requires detailed regulation because of special or unique characteristics. It has been referred to as the nation’s first zoning of offshore waters to regulate uses and control development, including the fostering of preferred uses such as alternative energy production, principally wind power.
Rhode Island’s Ocean SAMP was formally adopted by Rhode Island’s Coastal Resources Management Council (CRMC) on October 19, 2010, for Rhode Island waters and became effective for state regulatory purposes on December 26, 2010.
While Rhode Island is familiarly known as “Little Rhody,” there is nothing little about this ambitious plan. In fact, it covers 1,467 square miles of offshore waters comprised of both the state waters of Rhode Island and federal waters off the coasts of Rhode Island, Massachusetts, Connecticut and New York. The Ocean SAMP covers an area approximately 50% larger than the land area of Rhode Island (1,045 square miles) and about equal to Rhode Island’s total land and water area of 1,545 square miles.
The Ocean SAMP required, and recently received, approval from the National Oceanic and Atmospheric Administration (NOAA) as a programmatic change to Rhode Island’s Coastal Resources Management Program, confirming it as part of the federally-approved state program
Because the Ocean SAMP covers more than state waters, a separate and distinct federal approval is also required to confirm the Ocean SAMP as part of the enforceable policies of Rhode Island’s coastal resources management program, which would extend the influence of the state over federal waters under the federal consistency program, as discussed below.
The Ocean SAMP is available for review on CRMC’s website at www.crmc.ri.gov/samp_ocean/finalapproved/RI_Ocean_SAMP.pdf.
Why a Rhode Island Ocean SAMP?
The stated rationale for CRMC undertaking the Ocean SAMP process was to meet ambitious requirements for alternative energy production imposed by state statute and executive order to reduce Rhode Island’s reliance on fossil fuels. The siting of offshore renewable energy facilities was seen as critical to accomplishing these goals, and coastal regulators concluded this necessitated a detailed planning and regulatory tool to site such facilities.
In fact, two of the stated objectives CRMC advanced in proposing the Ocean SAMP were the streamlining of federal and state permitting processes for such offshore facilities and establishing a cost-effective permitting environment for potential investors.
How was the Rhode Island Ocean SAMP Developed?
Costing over $8 million and taking over two years to study and draft, Rhode Island’s Ocean SAMP was developed in a collaborative process led by CRMC, which relied on university and educational resources, including scientists, policymakers, educators and university staff. A large and active stakeholder group that included representatives of environmental organizations, fishermen, acquaculturists, government officials, alternative energy authorities, and other interested parties was also involved throughout the entire process.
Rhode Island officials also collaborated with neighboring states, given the extensive waters covered, and entered into a Memorandum of Understanding with Massachusetts, pledging cooperation in the development of wind energy projects in a 400-square-mile “Area of Mutual Interest” within the Ocean SAMP region. Moreover, CRMC worked closely with federal regulators throughout the entire process, given that the program would ultimately be subject to federal review and approval.
The process involved the collection and analysis of existing data about the region, gathering new information through studies and research, and assembling and working with advisory groups and a large stakeholder group.
Technical advisory groups were formed for each of the chapter topics addressed in the Ocean SAMP, and a science advisory task force was used to address the scientific aspects of the plan.
The result was a regulatory document of nearly 1,000 pages, and an even longer Appendix, addressing 1,467 square miles, beginning 500 feet off of Rhode Island’s coast and extending 30 miles offshore.
The Ocean SAMP area encompasses Rhode Island state waters (which extend to three nautical miles) and federal waters, and abuts (but does not include) state waters of Massachusetts, Connecticut and New York.
What Does the Ocean SAMP Do?
The Ocean SAMP set forth the results of extensive studies and investigations that formed the basis of policies and standards pertaining to uses and development within the Ocean SAMP region.
Given the extensive nature of the report, only a brief outline of the key chapters can be provided here.
Chapter 2: Ecology of the Ocean SAMP Region
The SAMP summarizes extensive findings regarding the ecology of the region, including detailed information concerning wind, storm, wave, and tide patterns, seafloor geology, and the biological composition of the complex benthic and pelagic ecosystems present in the region, which support a variety of life from zooplankton to megafauna. Enforceable policies include the preservation and restoration of ecosystems as the primary guiding principle for measurement of environmental alteration of coastal resources; activities must be designed to avoid adverse impacts to such ecosystems and if such impacts are unavoidable they must be minimized and mitigated.
Chapter 3: Global Climate Change
This chapter addresses the implications of global climate change for the region, including sea level rise, more intense storms, accelerated rates of erosion, and the consequences these implications may have for coastal infrastructure and recreation, marine navigation, and transportation. This is an important chapter, as it is an area CRMC takes seriously. Enforceable policies include prohibiting land-based and offshore development projects that will threaten safety or have adverse environmental impacts based on anticipated sea-level rise.
Chapter 4: Cultural and Historic Resources
This chapter catalogues numerous resources, such as submerged pre-contact tribal landscapes, and historic shipwrecks. (Rhode Island coastal waters have perhaps the largest number of known Revolutionary War shipwreck sites in the country.) Enforceable policies include prohibiting activities that will adversely impact the state’s cultural, historic, or tribal resources, and requiring archeological surveys as part of the permitting process for projects that may pose a threat to such resources.
Chapter 5: Commercial and Recreational Fisheries
This is the second longest chapter and provides detailed information about fisheries resources as well as a detailed discussion of commercial and recreational fisheries in the region. Enforceable policies include protecting commercial and recreational fisheries within the region from adverse impacts of other uses.
Chapter 6: Recreation and Tourism
This chapter addresses marine recreation as well as shore-based recreational activities adjacent to the Ocean SAMP region, with enforceable policies including promoting uses of the region that do not significantly interfere with recreation and tourism.
Chapter 7: Marine Transportation, Navigation and Infrastructure
This section of the Ocean SAMP details navigational considerations, shipping lanes, vessel routes, anchorages, Navy restricted areas, right whale management areas, and other transportation activities and issues. Enforceable policies include an acknowledgement that the SAMP region is heavily used for designated navigation areas and the impacts of any change in spatial use patterns on marine transportation must be carefully evaluated.
Chapter 8: Renewable Energy and Other Offshore Development
This is the largest chapter of the Ocean SAMP, discussing various forms of renewable energy, including wind, wave, solar, biomass and geothermal. Its focus is on wind energy, which is seen as the most feasible of the available technologies that can generate electricity on a utility-scale in Rhode Island. Enforceable policies include support for increased renewable energy production with a focus on the potentials of wind energy, designating a renewable energy zone, more specifically discussed below, and a commitment by CRMC to work with federal regulators to develop a “seamless” review and design approval process for offshore wind energy facilities consistent across federal and state waters.
Chapter 11: Regulatory Standards
The Ocean SAMP promulgates regulatory standards for large- and small-scale offshore development projects that include requirements for detailed documentation to be submitted to the state at various stages throughout the project and detailed standards for development activities themselves.
The regulatory standards also designate and regulate certain sensitive areas for increased protection.
“Areas of Particular Concern” are areas of unique or fragile features, having important habitats, harboring significant historical or cultural features, or being important for navigation, transportation, or military or other uses. These areas can include offshore dive sites or historical shipwrecks.
“Areas Designated for Preservation” are areas to be preserved because of their ecology, and large-scale offshore development, mining and mineral extraction, and other incompatible development are prohibited. These areas include certain sea duck foraging habitat and areas identified as critical habitat under the Endangered Species Act.
What are the Benefits of the Ocean SAMP?
This, of course, depends on whom you ask. Whether one supports or opposes the concept of ocean zoning, it appears there are several benefits arising from the Ocean SAMP.
Blueprint for Plans in Other Jurisdictions
Perhaps its greatest benefit is that it has been enacted by a state. It therefore presents a substantive model for ocean zoning regulation. Other states and jurisdictions are free to study it and revise it as they see fit.
Not only does it present a substantive role model for study, it also presents a procedural role model. Rhode Island did enact a final Ocean SAMP, despite the contentious issues and competing interests involved. The process employed is therefore worth studying and perhaps emulating.
Establishes Renewable Energy Zones
Supporters of renewable energy, and that appears to be a rapidly expanding group, would find one of the significant benefits of the Ocean SAMP to be that it designates a renewable energy zone, Type 4E, south of Block Island in Rhode Island state waters.
Renewable energy facilities may be sited here in order to have minimum interference and minimum adverse impacts to fisheries, navigation and shipping, recreation and tourism, and other marine uses. Although this designated zone is the preferred site for the development of large scale renewable energy facilities, it is not the only area where such facilities may be located. The Ocean SAMP specifically provides that offshore renewable energy development may be located elsewhere in Rhode Island state waters in the region if it would not have significant adverse impact on natural resources or human use of the region1.
Shortened Permitting Time
The extensive studies and investigations leading to implementation of the Ocean SAMP resulted in the collection of a great deal of data about the region, data that for the most part has been accepted by CRMC and can provide substantial help in defining alternatives and evaluating sites in the permitting process. Interestingly, approximately $3 million of the cost of the work behind the Ocean SAMP was paid for by a prospective offshore alternative energy developer, which may have concluded that a regulatory process based on detailed scientific and environmental studies could actually save it and other developers considerable time and money in the permitting process.
The state believes that the time for procuring a lease from the primary federal regulator for activities in the Ocean SAMP region will fall from 10 years to two years.
What is Ocean SAMP’s Role in Coastal Zone Management?
As approved by the CRMC and by NOAA, the Ocean SAMP constitutes a programmatic change to Rhode Island’s Coastal Resources Management Program, governing activities in Rhode Island waters.
That being said, much of the SAMP region is in federal waters. Accordingly, CRMC will formally request “a geographic boundary expansion to its federal consistency boundary by documenting in advance that certain licenses, permits, leases, and so on, will have a foreseeable effect on the state’s coastal zone.”2
As of this writing, the matter is before federal agencies for comment before formal application to NOAA, and the state anticipates it could have approval by autumn of this year, given that CRMC staff have been working on this program and consulting with the federal regulators over the past several years.
The importance of federal approval is that it would make the Ocean SAMP policies enforceable components of Rhode Island’s coastal management program for purposes of the federal consistency program under the federal Coastal Zone Management Act3. This would effectively give Rhode Island significant approval rights over specified activities in the Ocean SAMP region requiring federal permits. (The rights of a state vary depending on whether the federal permit is awarded to a federal entity itself or to a non-federal actor, with states effectively having a type of veto over actions of the non-federal actor that are inconsistent with a state’s enforceable coastal zone management policies.)
Rhode Island municipalities can also be heard in this process as to matters of importance to their localities by making their views known to CRMC during the federal consistency review process.
In essence, Rhode Island would be extending its enforceable policies into federal waters over the Ocean SAMP region. This will provide a significant extra measure of protection to Rhode Island in guarding its coastal resources and may well be a blueprint other states wish to study.
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1Section 1160.1.1
2CRMC Press Release, October 19, 2010.
316 U.S.C. 1451 et. seq.
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*Mr. Boehnert practices real estate and environmental law, including coastal permitting, in Providence, Rhode Island. He is currently writing a book on Ocean Zoning. Ms. Leibman is a second year student at Lewis & Clark Law School, has undergraduate and graduate degrees in marine science, and worked on coastal regulatory issues while serving as a NOAA Sea Grant Fellow in the office of U.S. Senator Sheldon Whitehouse (D.R.I.).