Zoning is Coming to an Ocean or Great Lake Near You

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Rhode Island lawyer predicts coastal states will soon be zoning offshore waters, including the Great Lakes, the way land is currently zoned to regulate and restrict uses, following Rhode Island's ground-breaking lead in ocean zoning

John M. Boehnert, a Rhode Island real estate and environmental lawyer experienced in coastal permitting and coastal property rights predicted offshore waters, including the Great Lakes, will soon be zoned like conventional land parcels to restrict and limit certain uses, and encourage others, such as alternative energy.

His prediction came in a national American Bar Association article he co-authored on Rhode Island’s first-in-the-nation ocean zoning regulatory program.

That program, promulgated by the Rhode Island Coastal Resources Management Council, is the first zoning of offshore waters in the United States, designed to protect the environment by regulating uses and development.

“Representatives from many of the 34 states with approved coastal zone management programs have already been in contact with Rhode Island officials to find out what they did and how they did it,” Boehnert said. “There is significant interest in following suit, and even some foreign governments, such as Great Britain, are looking at this as well”, he added.

Rhode Island’s program is known as the Ocean Special Area Management Plan, or Ocean SAMP, and is also designed to facilitate certain preferred uses, principally the development of offshore alternative energy facilities, and specifically offshore wind power.

Ocean zoning designates specific use zones in offshore waters to protect fragile ecosystems, avoid user conflicts, and allow development in areas best suited for the proposed uses. It can prescribe rules telling you what you can and cannot do in ocean waters.

These zones are established by marine spatial planning, defined as “a comprehensive, adaptive, integrated, ecosystem-based, and transparent spatial planning process, based on sound science, for analyzing current and anticipated uses of ocean, coastal, and Great Lakes areas”

The use zones are imposed after extensive research and analysis, including oceanography, meteorology, climate change, cultural and historic resources, fisheries, shipping and recreation.

“Our article provides an overview of ocean zoning and Rhode Island’s Ocean SAMP”, Boehnert said. “This is of particular interest to offshore energy developers, environmentalists, and those engaged in fisheries, offshore telecommunications cabling, aquaculture, electrical energy generation, natural resource extraction, and other uses of the ocean surface and floor”.

He added that Rhode Island’s program is important to understand, given it is the first offshore zoning program adopted in the country, and other coastal and Great Lakes states are considering it as a model.

Mr. Boehnert cautioned that the Ocean SAMP still requires a critical federal approval before it will impact federal waters as opposed to Rhode Island waters, to which it now applies.

He co-authored the article with Adena Leibman, a student at Lewis & Clark Law School who worked on coastal issues while in the office of U.S. Senator Sheldon Whitehouse (D.R.I.).

Mr. Boehnert is currently writing a book tentatively titled “Zoning the Oceans: The Next Big Step in Coastal Zone Management”.

The article is published in the fall issue of the American Bar Association’s State & Local Law News, vol. 35, no. 1.

Mr. Boehnert writes a blog on real estate and environmental issues, where he has published other articles on waterfront property rights and coastal permitting, as well as complementary White Papers available for download on how to conduct successful environmental and real estate due diligence and how to avoid hidden pitfalls in the purchase of real estate. Visit http://www.rhodeislandpropertylaw.com.


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