Ocean Zoning:

Implications for Wave Energy Development (WED)

 

 

Richard G. Hildreth

Professor of Law

Director, Ocean and Coastal Law Center*

rghildre@law.uoregon.edu

 

 

KEYNOTE ADDRESS

 

 

Presented

October 11, 2007

 

at the

 

Oregon Coast Aquarium, Newport, Oregon

 

as part of

 

Ecological Effects of Wave Energy Development in the Pacific Northwest: A Scientific Workshop

 

Wave energy development (WED) is being proposed off the coast of Oregon in areas where activities such as fishing occur. Ocean zoning is a recognized technique for managing multiple ocean uses. It is a means for specifying human uses for particular ocean areas to reduce conflicts between ocean users and to support marine conservation. It is also known as area-based management, place-based management, and marine spatial planning.

 

The United States Exclusive Economic Zone (EEZ) is the world's largest and extends 200 miles off the coast of Oregon and other U.S. states and territories. Pursuant to federal law, resource management within the first three miles is primarily by the states. The need for zoning in particularly busy areas of the U.S. EEZ such as off the New England and southern California coasts was recognized in the recent reports of the Pew and United States commissions on ocean policy. President Bush's Action Plan and Executive Order and the Joint Ocean Commission Initiative following up on those reports also support the use of ocean zoning.

 

Two leading examples of ocean zoning are Australia's Great Barrier Reef Marine Park and the Northwest Hawaiian Islands Marine National Monument proclaimed by President Bush last year. Each is slightly larger than the state of California in area. The monument is slightly larger than the park, is the world's largest marine or terrestrial conservation area, and includes about 3% of the U.S. EEZ. Commercial fishing is prohibited in most of the monument and in 34% of the park.

 

Other U.S. federal ocean zoning schemes include 13 National Marine Sanctuaries whose total area includes about 1% of U.S. state and federal EEZ waters. Four of those sanctuaries are located off California and 1 off Washington. In 2005 Oregon Governor Kulongoski proposed that the entire continental shelf off Oregon be designated a sanctuary--it would be 4 times as large as the next largest sanctuary, the Monterey Bay National Marine Sanctuary off the central California coast. Within most sanctuaries, bottom trawling is banned and some other fishing activities are also regulated. Most significantly for my topic, wave and other renewable energy facilities are prohibited in federal sanctuary waters and stringently regulated in state sanctuary waters.

 

The Florida Keys and California Channel Islands sanctuaries contain networks of "no take" marine reserves. In state waters off the central California coast, the state recently established a network of 12 marine reserves. Almost all federal and state definitions of marine reserves exclude "extractive" activities. Under California's Marine Life Protection Act, activities which would "change the dynamics of the ecosystem" also are prohibited. WED probably will not be viewed as an "extractive" activity like offshore oil and gas development or commercial fishing, but it does have impacts on local ecosystem dynamics of varying levels of significance which are being assessed as part of this state-of-the-art international workshop.

 

Currently off Oregon there are no marine reserves in state or federal waters and ocean zoning is limited to essential fish habitat areas designated by the federal regional Pacific Fishery Management Council and protected from damaging activities under the federal Fisheries Conservation and Management Act. Should more zoning be implemented before WED proceeds? My answer for the short term is no, WED may proceed without additional zoning. I base that conclusion in part on regulations recently adopted by the Oregon Department of State Lands which among other things require that WED development in state waters not "substantially impair lawful uses or developments already occurring within the area" such as fishing. Furthermore, Oregon Ocean Resources Management Goal 19 which has the force of law requires that a precautionary approach be used with regard to the scientific uncertainties involved in determining whether there are significant use conflicts or adverse ecosystem impacts. Under the federal Coastal Zone Management Act, both requirements are potentially applicable to federal approval of WED in federal waters off Oregon as well.

 

Under the framework of Goal 19, when trans-Pacific fiber optic cables laid off Oregon displaced some fishing activity, appropriate compensation for that displacement was negotiated and paid to the affected fishermen as a means of resolving the use conflict. A similar process could be used for fishing activity displaced by the installation and operation of WED facilities offshore and their associated transmission cables to shore.

 

Over the longer term, expanded ocean zoning off Oregon could offer WED developers security of tenure at preferred seabed, water column, and surface locations through a lessened likelihood that expiring state and federal permits and leases up for renewal would not be renewed and the location allocated to some other use. That additional security of tenure would be supported by the use of zoning to harmonize WED to the maximum extend possible with existing and future uses in the area. In this regard, it is increasingly clear that WED facilities offshore will have to be protected by some form of "no entry" zone.

 

And if WED does expand up and down the west coast, the 2006 West Coast Governors' Agreement on Ocean Health specifically supports a coordinated three-state approach to ocean renewable energy development. And on the research side, the three states are developing a Regional Marine Research Plan for the California Current Ecosystem adjacent to all three states. Much of the research funded and carried out pursuant to that plan could be relevant to assessing the potential for and ecological impacts of WED on the west coast and the need for expanded ocean zoning.

 

Are there any downside risks for WED through expanded ocean zoning? Yes, at least in theory. One only has to recall the initial hostile response to the proposed Cape Wind wind farm in federal waters off Massachusetts and the west coast federal and state "zoning out" of any more offshore oil and gas development to the see the possibility of WED being zoned out. And of course further research following up on this workshop might reveal WED impacts which would require mitigation or compensation to affected users, or in a worst-case scenario, lead to WED's exclusion from certain areas.

 

But personally, as one concerned like many of you about the environmental implications of our continued heavy reliance on fossil fuels, I am hopeful that room can be made for WED off Oregon and elsewhere.  

 

 


* Professor Hildreth gratefully acknowledges the assistance of Ocean and Coastal Law Center staff members Andrea Coffman and Christy Callaghan.