National ocean policy threatens new regulatory burdens

Since its creation by Executive Order in 2010, the Obama administration has hailed its National Ocean Policy (NOP) as a non-regulatory, stakeholder-driven initiative that will lead to reduced burdens and less uncertainty for ocean user groups.

In reality, it’s nothing of the sort.

This was highlighted recently during a hearing held by the U.S. House Natural Resources’ Water, Power and Oceans Subcommittee on the implications of the NOP, where House Natural Resources Committee Chairman Rob Bishop summed up many of the concerns of stakeholders when he noted that “it’s creating more uncertainty, and it certainly is not helping the industry and it’s not helping the environment.”

{mosads}You know what? He’s right.

The Long Island Commercial Fishing Association (LICFA) has been closely monitoring the development and implementation of the NOP since its establishment six years ago.  We’ve had no other choice, as we represent stakeholders in New York’s $1.4 billion boat-to-table seafood industry, with Long Island in particular landing 99 percent of the state’s wild-caught seafood.

Since the beginning, some of the greatest concerns with this policy have centered on the potential regulatory impacts of the policy’s coastal and marine spatial planning (CMSP) and ecosystem-based management (EBM) components. 

Federal agencies are required to participate in CMSP (a new overlay likened by federal entities to ocean zoning) and conform their activities to be consistent with coastal and marine spatial plans developed by National Ocean Policy-established governmental “Regional Planning Bodies” (RPBs), including through regulations, if necessary. Thus, while policy defenders are correct in stating that RPBs themselves won’t issue regulations, regulatory impacts will result by virtue of the implementation requirement.

Federal agencies are also required to incorporate EBM – described under the National Ocean Policy as a “fundamental shift” in the way in which the federal government manages the ocean, coasts, and Great Lakes – into environmental planning and review processes by the end of 2016.  Those don’t sound like non-regulatory efforts to us, either.

The development of a soon-to-be-released draft Mid-Atlantic coastal and marine spatial plan for a region extending from Virginia to New York has confirmed the regulatory threat of the CMSP effort to our industry and many others.

LICFA has been closely following the process in the Mid-Atlantic, and from the creation of new marine life data maps of “core areas” and “hotspots” for “regulatory use,” to suggesting that project proponents may be asked to undertake certain actions before even filing a permit application and considering the possibility of establishing guidelines related to Essential Fish Habitat consultations and/or designations, it is clear that it is much more than a voluntary and non-regulatory effort. 

In 2010, the National Ocean Policy foundational document recognized that the policy “may create a level of uncertainty and anxiety among those who rely on these resources and may generate questions about how they align with existing processes, authorities, and budget challenges.” Six years later, that uncertainty and anxiety is just as strong now as it was then, and unnecessarily so.

Rather than filling an actual need requested by stakeholders, the National Ocean Policy is an imposed solution in search of a problem. It has already presented a new regulatory threat with which industry must contend, the last thing that the fishing sector or any other regulated community needs. 

Furthermore, details remain unclear about what specific actions agencies will take to implement marine plans set to be finalized later this year or how agencies will implement a fundamental shift in the way they manage marine resources in 2016, thereby precluding informed user group input. By the time those details are disclosed, we fear that it may be too late to address any concerns with them.  Effective governance this is not.

All the while, implementation has continued unabated — with unknown impacts on agency budgets and statutory mandates — despite the fact that the policy has not been authorized or funded by Congress. (Conversely, there have been dozens of floor votes in favor of prohibiting, restricting, or shedding light on its implementation.)

For all these reasons, LICFA and many others support congressional efforts to exercise oversight of the National Ocean Policy. For too long, core concerns regarding this regulatory initiative have been inadequately addressed by those in charge of its implementation. This cannot continue. There are simply too many jobs, communities, and livelihoods at stake. 

Brady is Executive Director, Long Island Commercial Fishing Association