Ocean Law Alert: Obama Administration Releases National Ocean Policy Implementation Plan

On April 16, 2013, the National Ocean Council, consisting of representatives from 27 federal agencies and departments, published its long-awaited plan for implementing President Obama's National Ocean Policy.^[1] The new National Ocean Policy Implementation Plan (the "Implementation Plan") is intended to improve interagency collaboration and prioritization in a broad range of policy areas affecting ocean uses such as commercial fishing, commercial shipping and ports, military activities, aquaculture, and conventional and renewable energy development.

The Implementation Plan is an extension of the National Ocean Policy, which "does not create any new regulations, supersede current regulations, or modify any agency's established mission, jurisdiction, or authority . . . [and] does not redirect congressionally-appropriated funds, or direct agencies to divert funds from existing programs." Thus, the Implementation Plan does not create new law. Rather, it describes specific actions that the federal agencies involved in ocean management will take to coordinate with tribal, state, and local governments; marine industries; and other stakeholders to streamline management of the nation's ocean, coastal, and Great Lakes waters. Although the Implementation Plan does not create new law, it provides detailed directions for agencies tasked with navigating interagency cooperation and again calls on the United States Senate to ratify the United Nations ("U.N.") Convention on the Law of the Sea,^[2] stating that accession is "critical to protecting our navigational rights and freedoms" and would "advance our national interests by protecting and enhancing our access to the ocean and important natural resources."

As a policy document, the Implementation Plan describes "how specific actions to implement the [National Ocean] Policy will benefit: (1) The Ocean Economy, (2) Safety and Security, and (3) Coastal and Ocean Resilience by supporting (4) Local Choices, and providing foundational (5) Science and Information." The specific actions, both short- and long-term, address specific outcomes in each of those areas that the National Ocean Council expects agencies to achieve on a predetermined schedule through 2025. The actions are described in detail in the Implementation Plan's appendix, where they are organized according to the projected year of completion and assigned to federal agencies or interagency working groups.

The Implementation Plan includes 43 desired outcomes and far too many individual actions to restate all of them here. However, as just one example, under the topic "The Ocean Economy," the Implementation Plan sets out seven desired outcomes, one of which is to:

With respect to that outcome alone, agencies are directed to take these on-the-ground actions:

• In 2013, the member agencies of the Interagency Ocean Observation Committee will "[d]evelop, evaluate, and expand an integrated geospatial database of Federal and non-Federal, certified and non-certified ocean observation data to provide access to public information and provide extracts or contact information for privately held information."
• In 2015, the U.S. Geological Survey will "[p]rovide quantitative data on coastal habitat carbon sequestration and facilitate the use of results from pilot projects to support private-sector development of greenhouse gas offset protocols for use in voluntary carbon markets."
• Also in 2015, the National Oceanic and Atmospheric Association ("NOAA"), in conjunction with the Environmental Protection Agency, will "[c]onduct a preliminary assessment of the economic costs and benefits of debris removal from coastal areas dependent on tourism."
• In 2017, the U.S. Department of Energy ("DOE"), NOAA, the Department of the Interior ("DOI"), the Department of Commerce ("DOC"), and the National Science Foundation ("NSF") will "[c]ompile and make available relevant climate, water, wind, and weather data; environmental models of seasonal and extreme conditions; and other information to support development of … wind, ocean thermal, and hydrokinetic (e.g., waves, tidal energy) resources."
• Also in 2017, the National Institutes of Health, together with NOAA, DOI, DOE, DOC, and NSF, will "[t]o the extent they may be discovered, develop new natural products and biotechnological processes from marine environments and evaluate their potential for commercial development."

Each of the 43 desired outcomes, from port safety to maritime safety and security in the Arctic to strengthening and supporting regional priorities, is fleshed out with a similar list of specific tasks for federal agencies and interagency working groups. With respect to coastal and marine spatial planning, the Implementation Plan clearly states that regional planning bodies will only be established in regions that want them, that participation is voluntary, and that stakeholders will determine the scope and direction of their work. The Implementation Plan also clarifies that"[r]egional planning bodies are not regulatory bodies and have no independent legal authority to regulate or otherwise direct Federal, State, tribal, or local government actions. All activities will continue to be regulated under existing authorities."

The Implementation Plan represents a significant step forward for the National Ocean Policy, and marine industries should be aware that the new interagency processes and actions it mandates – while not new law – may result in additional hurdles despite the National Ocean Council's express intent to streamline regulatory processes. We recommend that industries be aware of how the plan is being implemented in their areas of operation and be prepared to demonstrate how their business fits into the new framework. If you have questions about the Implementation Plan, regional planning efforts, and how they may affect your business in our nation's ocean, coastal, or Great Lakes waters, contact any of the key contributors.
 

^[1] Both the National Ocean Policy and National Ocean Council were established by the President in Executive Order ("E.O.") 13547 (Stewardship of the Ocean, Our Coasts, and the Great Lakes) on July 19, 2010.

^<[2] The Interagency Ocean Policy Task Force, predecessor to the National Ocean Council, recommended that the Obama Administration pursue accession to the U.N. Convention on the Law of the Sea in its Final Recommendations published on July 19, 2010 – a call that was echoed by the President in E.O. 13547.