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Session Law

2008

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Chapter 114 AN ACT RELATIVE TO OCEANS.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same as follows:

SECTION 1. Chapter 10 of the General Laws is hereby amended by inserting after section 35GG the following section:-

Section 35HH. There shall be established and set up on the books of the commonwealth a separate fund to be administered by the secretary of energy and environmental affairs, as trustee, in consultation with the department of environmental protection, to be known as the Ocean Resources and Waterways Trust Fund. There shall be credited to the fund any revenue from appropriations or other monies authorized by the general court and specifically designated to be credited to the fund, any appropriation or grant explicitly made to the fund and any income derived from the investment of amounts credited to the fund and the proceeds from any ocean development mitigation fees established pursuant to section 18 of chapter 132A. The priority for use of funds derived from compensation or mitigation for ocean development projects shall be to restore or enhance marine habitat and resources impacted by the project for which the compensation or mitigation shall have been received. The funds derived from compensation or mitigation related to public navigational impacts shall be dedicated to public navigational improvements; provided, however, that any funds for the enhancement of fisheries resources shall be directed to conduct fisheries restoration and management programs. Any other amounts credited to the fund shall be used, without further appropriation, only for the purposes of environmental enhancement, restoration and management of ocean resources by the secretary pursuant to section 4C of chapter 21A. No expenditure from the fund shall cause the fund to be in deficiency at the close of a fiscal year. Monies deposited in the fund that are unexpended at the end of the fiscal year shall not revert to the General Fund and shall be available for expenditure in the subsequent fiscal year.

SECTION 2. Chapter 21A of the General Laws is hereby amended by inserting after section 4B the following section:-

Section 4C. (a) The ocean waters and ocean-based development of the commonwealth, within the ocean management planning area described in this section, shall be under the oversight, coordination and planning authority of the secretary of energy and environmental affairs, hereinafter referred to as the secretary, in accordance with the public trust doctrine. Notwithstanding any general or special law to the contrary, the secretary, in consultation with the ocean advisory commission established pursuant to subparagraph (c) and the ocean science advisory council established pursuant to subparagraph (d), shall develop an integrated ocean management plan, which may include maps, illustrations and other media. The plan shall: (i) set forth the commonwealth’s goals, siting priorities and standards for ensuring effective stewardship of its ocean waters held in trust for the benefit of the public; and (ii) adhere to sound management practices, taking into account the existing natural, social, cultural, historic and economic characteristics of the planning areas; (iii) preserve and protect the public trust; (iv) reflect the importance of the waters of the commonwealth to its citizens who derive livelihoods and recreational benefits from fishing; (v) value biodiversity and ecosystem health; (vi) identify and protect special, sensitive or unique estuarine and marine life and habitats; (vii) address climate change and sea-level rise; (viii) respect the interdependence of ecosystems; (ix) coordinate uses that include international, federal, state and local jurisdictions; (x) foster sustainable uses that capitalize on economic opportunity without significant detriment to the ecology or natural beauty of the ocean; (xi) preserve and enhance public access; (xii) support the infrastructure necessary to sustain the economy and quality of life for the citizens of the commonwealth; (xiii) encourage public participation in decision-making; (xiv) and adapt to evolving knowledge and understanding of the ocean environment; and (xv) shall identify appropriate locations and performance standards for activities, uses and facilities allowed under sections 15 and 16 of chapter 132A. The division of marine fisheries, pursuant to chapter 130 and any other applicable general or special law, shall have sole responsibility for developing and implementing any fisheries management plans or fisheries regulations. Marine fisheries shall be managed in compliance with the applicable rules and regulations of the division of marine fisheries and federal or interstate fishery management plans issued pursuant to said chapter 130 or any other applicable general or special law and shall be integrated, to the maximum extent practicable, with an ocean management plan.

(b) An ocean management plan shall include any waters and associated submerged lands of the ocean, including the seabed and subsoil, lying between the line designated as the “Nearshore Boundary of the Ocean Management Planning Area”, which is depicted on a plan dated January 31, 2006, prepared by the office of coastal zone management and maintained at the executive office of energy and environmental affairs and with the clerks of the house and the senate, and the seaward boundary of the commonwealth, as defined in 43 U.S.C. § 1312. An ocean management plan may take into account the different regional characteristics of the commonwealth’s waters. A plan shall include existing municipal, state and federal boundaries and may include recommendations for clarifying those boundaries.

(c)(i) There shall be an ocean advisory commission to assist the secretary in developing the ocean management plan. The commission shall consist of 3 members of the senate, 1 of whom shall be appointed by the minority leader of the senate; 3 members of the house of representatives, 1 of whom shall be appointed by the minority leader of the house of representatives; the director of coastal zone management or his designee; the director of marine fisheries or his designee; the commissioner of environmental protection or his designee; and 8 members to be appointed by the governor, 1 of whom shall be a representative of a commercial fishing organization, 1 of whom shall be a representative of an environmental organization, 1 of whom shall have expertise in the development of offshore renewable energy, 1 of whom shall be a representative of the Cape Cod commission, 1 of whom shall be a representative of the Martha’s Vineyard Commission, 1 of whom shall be a representative of the Merrimack Valley Planning Commission, 1 of whom shall be a representative of the metropolitan area planning council and 1 of whom shall be a representative of the Southeastern Regional Planning and Economic Development District. Members shall be appointed for terms of 3 years, except that, initially, 4 members appointed by the governor shall be appointed for terms of 2 years and 3 members appointed by the governor shall be appointed for terms of 1 year. The appointing authority may fill any vacancy that occurs in an unexpired term. The members of the commission shall be selected with due regard to coastal geographic distribution.

(ii) The commission shall meet at least quarterly and at the discretion of the secretary. The commission shall hold public meetings relative to matters within the jurisdiction of the ocean management plan and shall make recommendations to the secretary for the proper management and development of the plan. The secretary shall consider the recommendations of the commission.

(iii) The office of coastal zone management and division of marine fisheries shall provide technical support to the commission.

(d) There shall be an ocean science advisory council to assist the secretary in creating a baseline assessment and obtaining any other scientific information necessary for the development of an ocean management plan. The council shall consist of 9 members to be appointed by the secretary, 3 of whom shall be scientists from academic institutions, at least 1 of whom shall be from the School for Marine Science and Technology at the University of Massachusetts at Dartmouth and at least 1 of whom shall be from the Department of Environmental, Earth and Ocean Sciences at the University of Massachusetts at Boston; 3 of whom shall be scientists from private, nonprofit organizations, at least 1 of whom shall be a scientist designated by the Massachusetts Fishermen’s Partnership; and 3 of whom shall be scientists from government agencies with demonstrated technical training and experience in the fields of marine ecology, geology, biology, ichthyology, mammalogy, oceanography or other related ocean science disciplines, at least 1 of whom shall be from the division of marine fisheries. The secretary shall serve as coordinator of the council. The council shall meet at least quarterly and at any other time that the secretary shall deem necessary to assist him in compiling the scientific information necessary for the development of an ocean management plan.

(e) Upon the secretary’s adoption of an ocean management plan, all certificates, licenses, permits and approvals for any proposed structures, uses or activities in areas subject to the ocean management plan shall be consistent, to the maximum extent practicable, with the plan.

(f) The secretary shall develop and implement a public outreach and information program to provide information to the public regarding the ocean management planning process.

(g) The secretary shall, at least 6 months before establishing an ocean management plan pursuant to this section, provide for public access to the draft plan in electronic and printed copy form and shall provide for a public comment period, which shall include at least 4 public hearings in at least 4 different coastal regions. The secretary shall publish notice of the hearings in the Environmental Monitor within 30 days of the date of the hearing. A notice of the public hearing shall also be placed, at least once each week for the 4 consecutive weeks preceding the hearing, in newspapers with sufficient circulation to notify the residents of the coastal region where the hearing shall be held. The hearing shall be held not sooner than 30 days and not later than 35 days after the notice is published in the Environmental Monitor. The public comment period shall remain open for at least 60 days from the date of the final public hearing. After the close of the public comment period, the secretary shall issue a final ocean management plan and shall file the plan, together with legislation necessary to implement the plan, if any, by filing the same with the clerks of the house of representatives and senate.

(h) The secretary shall promulgate regulations to implement, administer and enforce this section and shall interpret this section and any regulations adopted hereunder consistent with his power to enforce the laws. These regulations shall include provisions for the review of the ocean management plan, its baseline assessment and the enforceable provisions of relevant statutes and regulations at least once every 5 years.

(i) The joint committee on state administration and regulatory oversight, in this subsection called the committee, may review a proposed ocean management plan or regulations proposed or adopted pursuant to this chapter. The committee shall consult with the joint committee on environment, natural resources and agriculture in performing this review. The committee may hold public hearings concerning a proposed ocean management plan or a proposed or existing regulation and may submit to the secretary comments concerning the merit and appropriateness of the plan or regulations to be promulgated and an opinion on whether the proposed plan or regulations are authorized by, and consistent with, this chapter and existing state laws and regulations. The secretary shall respond in writing within 10 days to the committee's written questions relevant to the committee's review of a proposed plan or proposed or existing regulation. The secretary shall provide to the committee, without charge, copies of all public records in the secretary's custody relating to the proposed plan or regulation or action in question within 10 days of a request by the committee. The committee may issue a report with proposed changes to a proposed plan or proposed or existing regulation and shall transmit this report to the secretary. If the secretary does not adopt the proposed changes contained in the committee's report, the secretary shall notify the committee in writing of the reasons why he did not adopt the changes either at the time he adopts a proposed plan or proposed regulation or within 21 days of receiving the committee's report on an existing regulation.

(j) The ocean management plan shall be consistent with this section and all other general and special laws. The ocean management plan shall not be construed to supersede existing general or special laws, or to confer rights and remedies in addition to those conferred by existing general or special laws.

(k)(1) In the geographic area subject to the ocean management plan, as described in paragraph (b), commercial and recreational fishing shall be allowable uses, subject to the exclusive jurisdiction of the division of marine fisheries. Any component of a plan which regulates commercial or recreational fishing shall be developed, promulgated and enforced by the division of marine fisheries pursuant to its authority under chapter 130.

(2) A component of an ocean management plan which does not have as its primary purpose the regulation of commercial or recreational fishing but which has an impact on such fishing shall minimize negative economic impacts on commercial and recreational fishing. Prior to inclusion in an ocean management plan, a component with such a reasonably foreseeable impact shall be referred to the division of marine fisheries, which shall, in writing and in a timely and efficient manner, evaluate the component for its impact on commercial and recreational fishing and, if possible, develop and recommend to the secretary any suggestions or alternatives to mitigate or eliminate any adverse impacts.

(3) The director of marine fisheries, subject to the approval of the marine fisheries advisory commission, shall have sole authority for the opening and closing of areas within the geographic area described in subsection (b) for the taking of any and all types of fish, pursuant to section 17A of chapter 130. Nothing in this section shall be construed to limit the powers of the director pursuant to section 17 of chapter 130 or any other provision thereto.

SECTION 3.
Section 12B of chapter 132A of the General Laws, as appearing in the 2006 Official Edition, is hereby amended by striking out the definitions of “Commissioner” and “Department” and inserting in place thereof the following definition:-

“Director”, the director of coastal zone management.

SECTION 4.
Said section 12B of said chapter 132A, as so appearing, is hereby further amended by inserting after the definition of “Facilities plan” the following definition:-

“Office”, office of coastal zone management.

SECTION 5. Section 12C of said chapter 132A, as so appearing, is hereby amended by striking out, in lines 1 and 3, the word “department” and inserting in place thereof, in each instance, the following word:- office.

SECTION 6. Section 14 of said chapter 132A, as so appearing, is hereby amended by striking out, in line 2, the word “department” and inserting in place thereof the following word:- office.

SECTION 7.
Said chapter 132A, as so appearing, is hereby further amended by striking out section 15 and inserting in place thereof the following section:-
Section 15. Except as otherwise provided in this section, the following activities shall be prohibited in an ocean sanctuary:

(1) the building of any structure on the seabed or under the subsoil;

(2) the construction or operation of offshore or floating electric generating stations, except: (a) on an emergency and temporary basis for the supply of energy when the electric generating station is otherwise consistent with an ocean management plan; or (b) for appropriate-scale renewable energy facilities, as defined by an ocean management plan promulgated pursuant to section 4C of chapter 21A, in areas other than the Cape Cod Ocean Sanctuary; provided, however, that (i) the renewable energy facility is otherwise consistent with an ocean management plan; (ii) siting of all such facilities shall take into account all relevant factors, including but not limited to, protection of the public trust, compatibility with existing uses, proximity to the shoreline, appropriateness of technology and scale, environmental protection, public safety and community benefit; and (iii) in regions where regional planning agencies have regulatory authority, a regional planning agency may review the appropriate-scale offshore renewable energy facilities as developments of regional impact and the applicant may seek review pursuant to the authority of the energy facilities siting board to issue certificates of environmental impact and public interest pursuant to sections 69K through 69O of chapter 164;

(3) the drilling or removal of any sand, gravel or other minerals, gases or oils;

(4) the dumping or discharge of commercial, municipal, domestic or industrial wastes;

(5) commercial advertising; or

(6) the incineration of solid waste or refuse on, or in, vessels moored or afloat within the boundaries of an ocean sanctuary.

SECTION 8. Section 16 of said chapter 132A, as so appearing, is hereby amended by striking out, in lines 14 and 15, the words “telecommunications and energy” and inserting in place thereof the following words:- public utilities or the department of telecommunications and cable.

SECTION 9.
Said section 16 of said chapter 132A, as so appearing, is hereby further amended by striking out, in line 20 and in lines 28 and 29, the word “department” and inserting in place thereof, in each instance, the following word:- office.

SECTION 10. Said section 16 of said chapter 132A, as so appearing, is hereby further amended by striking out, in lines 29 and 30, the words “fisheries, wildlife and environmental law enforcement” and inserting in place thereof the following words:- fish and game.

SECTION 11.
Section 16A of said chapter 132A, as so appearing, is hereby amended by inserting after the word “department”, in line 6, the following words:- of environmental protection.

SECTION 12. Section 16B of said chapter 132A, as so appearing, is hereby amended by striking out, in line 26 and in lines 30 and 31, the words “and the division of water pollution control” and inserting in place thereof the following words:- of environmental protection.

SECTION 13. Section 16C of said chapter 132A, as so appearing, is hereby amended by inserting after the word “department”, in lines 1 and 5, the following words:- of environmental protection.

SECTION 14.
Section 16E of said chapter 132A, as so appearing, is hereby amended by inserting after the word “department”, in lines 1 and 2 and line 5, the following words:- of environmental protection.

SECTION 15.
Said section 16E of said chapter 132A, as so appearing, is hereby further amended by inserting after the word “commissioner”, in lines 13 and 14, the following words:- of environmental protection.

SECTION 16. Section 16F of said chapter 132A, as so appearing, is hereby amended by inserting after the word “department”, in line 1, the following words:- of environmental protection.

SECTION 17. Said section 16F of said chapter 132A, as so appearing, is hereby further amended by striking out the last sentence.

SECTION 18. Section 18 of said chapter 132A, as so appearing, is hereby amended by inserting, after the word “of”, in line 2, the following words:-energy and.

SECTION 19. Said section 18 of said chapter 132A, as so appearing, is hereby further amended by striking out, in lines 7 and 8 and line 9, the word “department” and inserting in place thereof, in each instance, the following word:- office.

SECTION 20. Said section 18 of said chapter 132A, as so appearing, is hereby further amended by adding the following paragraph:-

Any permit or license issued by a department, division, commission, or unit of the executive office of energy and environmental affairs and other affected agencies or departments of the commonwealth for activities or conduct consistent with this chapter shall be subject to an ocean development mitigation fee as shall be established by the secretary of energy and environmental affairs; provided, however, that no fee shall be assessed on commercial and recreational fishing permits or licenses. All the proceeds of the ocean development mitigation fee shall be deposited in the Ocean Resources and Waterways Trust Fund established pursuant to section 35HH of chapter 10.

SECTION 21. Nothing in this act shall be construed to alter the jurisdictional authority of the division of marine fisheries. Nothing in this act shall be construed to prohibit the transit of commercial fishing vessels and recreational vessels in state ocean waters.

SECTION 22. Any project that, before the effective date of this act, has: (1) filed a license application under chapter 91 of the General Laws and received a written determination of completeness from the department of environmental protection; (2) if subject to section 61 of chapter 30 of the General Laws, received a certificate of adequacy regarding a final environmental impact report; or (3) if the project is subject to the jurisdiction of the energy facilities siting board, received both a final decision from the energy facilities siting board and a certificate of adequacy regarding a draft environmental impact report, shall not be subject to the requirements of said ocean management plan.

SECTION 23. The secretary of energy and environmental affairs shall promulgate a final ocean management plan by December 31, 2009. Upon adoption, an ocean management plan shall formally be incorporated into the Massachusetts coastal zone management program, as referenced in section 4A of chapter 21A of the General Laws.

SECTION 24. Section 8 of this act shall take effect upon the adoption of an ocean management plan or by December 31, 2009, whichever occurs first.

SECTION 25.
The secretary of energy and environmental affairs shall convene an advisory committee for the purpose of reviewing section 16 of chapter 132A of the General Laws and regulations promulgated pursuant thereto. The advisory committee shall review the regulatory definitions of “public necessity and convenience” and “significant alteration”. The secretary shall submit a report, together with legislative recommendations, if any, to the joint committee on environment, natural resources and agriculture by December 31, 2009.

Approved May 28 , 2008


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