Commissioner of the Department of Environmental Protection
Ocean Advisory Commission member
By: Matthew Boger
Laurie Burt was appointed the Commissioner of the Department of Environmental Protection (MassDEP) by Governor Deval Patrick in July of 2007. Prior to joining the MassDEP, she was a senior partner and founder of the environmental law practice at the Boston firm of Foley Hoag. With expertise in state and federal hazardous waste and Superfund laws, Clean Air Acts, Clean Water Acts, as well as wetlands, endangered species, and environmental impact regulations, Commissioner Burt has focused her practice on environmental compliance. Prior to joining Foley Hoag in 1980, she was an Assistant Attorney General in environmental law enforcement. She received her law degree from Boston College Law School, earned a masters degree in Urban Affairs from Boston University, and received her bachelor's degree from the University of Wisconsin.
Q.) With the passage of the Oceans Act, Massachusetts becomes the first state in the nation to legislate an ocean plan. Please discuss the importance of this legislation and the influence it can have on policies developed by other states?
A.) Until recently, management of ocean resources has been piecemeal, not only in Massachusetts, but nationwide. This first-in-the-nation effort to develop a comprehensive ocean management plan is a significant opportunity to change that. The plan will establish a strong framework for decision-making regarding how the Commonwealth will manage its ocean resources to ensure an appropriate balance of uses. In so doing, the final plan will also provide a new model, for other coastal states and other countries, for how to balance the competing potential uses of the ocean.
Q.) As the lead on environmental policy and regulation for the state of Massachusetts, what are you looking for this plan to do?
A.) The plan will create a framework that will guide decision making by all the environmental agencies, regarding potential uses of ocean waters. This plan will enable state agencies to consider projects that involve the use of oceans, whether energy-related, or pertaining to fisheries and habitats, in the context of the goals and priorities developed in the plan. The plan will also provide the public and potential developers with information about the Commonwealth's shared expectations regarding potential energy siting opportunities, as well as information about marine habitats, biodiversity, and ecosystem interrelationships that encourage or require enhanced protection.
Q.) Once the plan is finalized, what will MassDEP's role be?
A.) MassDEP will help implement the plan through its permitting actions under Chapter 91, Section 401 Water Quality Certifications, Surface Water Quality Standards, and the Wetlands Protection Act. The plan is likely to significantly influence what we permit, where we permit it, and under what conditions approvals are granted, but the regulatory review and approval process will still need to happen. Perhaps a good example of how this will work is the way the Chapter 91 regulatory review works in conjunction with a Municipal Harbor Plan (MHP). An MHP approved by the Secretary of the Executive Office of Energy and Environmental Affairs (EEA) typically sets broad goals for a harbor, such as public access and maritime development, and may even tailor certain regulatory requirements of Chapter 91 to help achieve those goals. The requirements and guidance provided in the MHP are implemented through the licensing process.
MassDEP may find itself evaluating more proposals for offshore renewable energy projects, which were essentially prohibited both by the Ocean Sanctuaries Act in most of the Commonwealth's waters, and by the Chapter 91 regulations until the passage of the Oceans Act. The waterways regulations were amended to remove the prohibition against such facilities. So the task now will be to ensure that any such proposed projects meet regulatory criteria for the purpose of avoiding, minimizing, and mitigating impacts. The Oceans Act also gave MassDEP a role in issuing variances related to discharges of municipal waste.
Q.) Please discuss the importance of addressing the ocean's natural resources and balancing all the uses of the ocean with marine wildlife and natural habitat protection. As the legislation states the Act must "identify and protect special, sensitive or unique estuarine and marine life and habitats".
A.) The Oceans Act adopts the public trust doctrine to cast a very broad net over the uses and resources to be protected in developing a comprehensive management plan. Yet these various uses do not all necessarily complement one another. The challenge of the planning process will be to strike a balance among these competing uses while maintaining the natural resources that make Massachusetts' waters unique. MassDEP has considerable experience balancing the need for human recreation and commercial use with the environmental protections, through Wetlands Protection Act & Natural Heritage and Endangered Species Program review. While MassDEP's permitting programs strive to balance competing interests, a comprehensive planning effort with a broad scope is more suited to such a task. But fundamentally, the basis for much of the commercial and recreational use of the ocean is the presence of a healthy environment that supports habitats for thriving marine life.
The Oceans Act requires that the plan give due weight to the importance of marine habitats, biodiversity, and ecosystem interrelationships, and the Act appropriately requires the formation of an Ocean Science Advisory Council to help create the scientific baseline to guide the development of the plan. With this information, we should be in a position to direct incompatible uses and activities away from the most sensitive and valuable natural resources.
Q.) You have been appointed to serve on the seventeen-member Ocean Advisory Commission. Please discuss the process and timeline the Commission will undertake to create the plan by the deadline of December 31, 2009?
A.) The legislation established this commission to advise the EEA Secretary in developing the ocean plan. The Commission includes State Legislators, agency heads, representatives from a commercial fishing organization and an environmental organization, an expert in the development of offshore renewable energy, and representatives from the coastal Regional Planning Agencies.
A cornerstone of developing the ocean plan is input provided by the public. To solicit input from the public, EEA hosted 18 public listening sessions, conducted across the state during September and October. These sessions provided an unprecedented opportunity for the public to state their interests and concerns regarding the development of an ocean management plan. As a member of the Commission, I, and others from MassDEP attended listening sessions to hear, first hand, the interests and concerns of the public. The development of ocean plan principles and the plan framework will, in part, be developed in response to public comments. A second stage of public outreach will occur following the development of the draft ocean plan, tentatively scheduled for May-June 2009. EEA is scheduled to release a draft plan in July 2009, with a final plan promulgated by December 31, 2009.
Q.) Over the years, there have been a number of projects proposed off Massachusetts' coastal waters, such as wind farms, sand mining, and LNG terminals. Please discuss your view on this and how you foresee the MA ocean plan addressing these proposals?
A.) The lack of comprehensive ocean planning was exposed to a great extent by the piecemeal approach that had to be taken in reviewing and permitting these projects. The ocean plan will allow the state to review such proposals in a more comprehensive manner, and in the context of the goals and priorities developed in the plan. It will also be proactive to the extent that it provides the public, and potential developers, with expectations about where and under what circumstances facilities such as these may be constructed in the future.
These projects posed several challenges to planners and regulators:
1.) They were proposed in areas where environmental data with which to analyze the projects did not exist;
2.) They were new technologies that were not well understood, especially in terms of impacts to the marine ecology and uses such as fishing; and
3.) The regulatory scheme was geared toward evaluating projects individually, in a piecemeal fashion, rather than comprehensively.
The ocean planning process can provide the following information and analysis to help evaluate future projects:
1.) Identify offshore locations where opportunities for such facilities exist;
2.) Identify where critical natural resources exist so that they can be avoided;
3.) Look ahead to what technologies may be on the horizon so that we can better plan for future projects;
4.) Develop, as part of the plan and on an ongoing basis, data sets on environmental, commercial, and recreational resources and uses to serve as a basis both for project proponents and the agencies evaluating these projects;
5.) Provide regulators with a better idea of the level of project-specific resource assessments that are necessary; and
6.) Provide guidance on appropriate mitigation. With regard to mitigation and compensation, the Oceans Act established a fund into which monetary contributions can be paid, ensuring that such funds are used in a directed way consistent with goals of the ocean plan.
Q.) The term "appropriate scale" has been used regarding the siting of renewable energy facilities such as wind farms. What is your definition of "appropriate scale" and how do you think the Commission will address this issue?
A.) The Oceans Act used this term without defining it, so it's hard to say what it means right now. It may be something that will have to be determined on a case-by-case, site-by-site basis, but within a framework established in the plan. What may be appropriate in Buzzards Bay may be different than what's appropriate off the North Shore. The data collection and analysis that will be performed during the planning process will surely shed light on this question. The Oceans Act requires that the plan not only identify areas where such facilities may be located, but to develop performance standards they must meet.
Q.) How will this plan affect, if at all, the decisions of local coastal communities?
A.) I hope that the ocean planning process will inspire local communities to think more about their shores and participate in the development of the plans. This is a great opportunity for communities to influence what happens in the offshore environment. The Oceans Act also recognized and maintained the regulatory role of some regional planning agencies.
© 2008 Massachusetts Ocean Action Coalition
Conservation Law Foundation | Mass Audubon