Step 1. Establishing Authority

Step 1. Establishing Authority

“Authority and power are two different things; power is the force by  means of which you can oblige others to obey you.
Authority is the right to direct and command,to be listened to or obeyed by others.”

–Jacques Maritain, 1882-1973, French Philosopher

 

What outputs should be delivered from this step?

A preliminary list of specific problems you want to solve through marine spatial planning (MSP); and a decision about what kind of authority you need or already have for developing and implementing MSP.

Introduction

Once you decide to initiate MSP in your marine region, two points in particular need consideration before you get underway:

  • Define clearly why you want to develop MSP. This will enable you to stay on track throughout the process; and
  • Define whether you have appropriate authority to develop and implement MSP. If not, your efforts might be wasted if implementation is not possible later on.
TASK 1. IDENTIFYING WHY YOU NEED MARINE SPATIAL PLANNING
establishing authorityThe best way to start MSP is to define why you need it. Do you have (or expect) incompatible uses or uses that adversely affect important natural areas? If not, you may not need MSP.  Are you looking for compatible uses so that multiple-use areas can be identified? Are important habitats threatened by new development proposals? Most countries that have successfully embarked on MSP have done so out of a need to tackle particular conflicts or problems, either existing or anticipated. These issues may be related to economic development, e.g., where to allow new offshore renewable energy installations or aquaculture facilities, or to environmental conservation, e.g., which biologically and ecologically important areas need to be protected. For example, Belgium and Germany initiated MSP following questions raised about the location of new offshore wind energy facilities. MSP was seen as a way to enable adaptive decision-making in response to possible conflicts over the safety of maritime transport and the protection of fisheries and important natural areas. In the 1960s and early 1970s, MSP in Australia started out of public concern that oil drilling and limestone mining would conflict with the protection of the Great Barrier Reef. In South Africa and Namibia today potential conflicts between offshore phosphate mining and fishing have lead to interest in MSP.

Specifying problems or conflicts you want to tackle through MSP will keep your efforts focused throughout the process. Otherwise you may risk losing sight of why you engaged in the process in the first place. Doing this is also the first step toward selecting your goals and objectives for MSP (as discussed in Step 3, Organising the process through pre-planning).

The Box in the section “About this guide” provides a checklist of problems that can help you define more tangibly why you want to develop MSP. Some countries are turning to MSP in a way that reaches far beyond the level of resolving conflicts or specific problems. The United Kingdom, for example, has created an entirely new legal framework that will streamline policies and licensing procedures affecting the marine environment. As a result, it is changing the course of how its marine areas of the United Kingdom are managed as a whole.

REMEMBER!

Marine places without any visible problems or conflicts today can look very different in another ten or twenty years. Anticipate potential conflicts and deal with them before they become problematic. For more information on projecting trends anticipating conflicts, and developing spatial scenarios, go to Step 6, “Defining and analyzing future conditions”.
 

TIP!

    It’s generally very difficult to gain the necessary support from politicians and other high-level individuals for abstract ideas or long-term causes (no matter how good they are) if they cannot relate or communicate them successfully to their constituencies. The same is true for MSP. Therefore, to gain support for MSP from politicians, be sure to specify the problems you encounter and detail as clearly as possible how MSP can help solve them.

 

TASK 2. ESTABLISHING APPROPRIATE AUTHORITY FOR MARINE SPATIAL PLANNING

A second consideration concerns the kind of authority you need to undertake MSP. While planning without implementation is sterile, implementation without planning is a recipe for failure. Therefore, the development of MSP requires two types of authority:

  • Authority to plan for MSP; and
  • Authority to implement

Both types of authority are equally important. They could be combined in one organization, but in most MSP initiatives around the world, new authority is often established for MSP, while implementation is carried out through existing authorities and institutions.
 

Action 1. Authority to plan for marine spatial planning

The single most important aspect when creating authority to plan for MSP is to make sure that your output (most likely a marine spatial management plan) can be implemented. A variety of countries have followed different paths to establish authority to carry out MSP and to ensure a result that can be implemented.

One way to establish authority for MSP planning is through the creation of new legislation. The United Kingdom, for example, opted to create new legislation to provide authority for MSP. Through this approach it has established a new organisation (referred to as the Marine Management Organisation) specifically to develop marine spatial plans. A similar approach was taken in the 1970s in Australia when new legislation established the Great Barrier Reef Marine Park Authority that developed its initial zoning plans.  In 2008, the Commonwealth of Massachusetts (USA) developed a new Oceans Act that now provides the authority for MSP. In all three of these examples, the legal status of MSP outputs is derived from the respective new legislation.

Potential Advantages/Disadvantages of New Legislation for MSP

Potential Advantages of New Legislation for MSP

  • Clear authority: Drafting new legislation can provide a clear and unconditional authority/mandate for MSP;
  • Unconditional application: Enabling a ‘fresh start’ by avoiding getting entangled in existing legislation and its accompanying institutional arrangements that could jeopardize a successful outcome of MSP;
  • Clear leadership: New legislation for MSP can establish clear leadership organised in a way that will produce a multiple-objective outcome; and
  • Continuity: Clear authority and leadership for MSP enables institutions to take up appropriate roles and responsibilities, thus ensuring efficient functioning when the support of high-profile advocates becomes less evident later on.

Potential Disadvantages of New Legislation for MSP

  • Time consuming: Creating new legislation is very time consuming. For example, it took the UK five years to put its Marine and Coastal Access Act into place. In the meantime, business as usual continues;
  • Inflexible: If new legislation is not drafted in a way that promotes a multiple-objective outcome (whatever that might mean for your area), it can become a very inflexible instrument. In many cases, it will be very difficult to renegotiate key elements of new legislation, particularly if it was only recently developed;
  • Undesired outcomes: Legislation does not necessarily provide the desired outcome. Even the best intended legislation can end up being very far from what you originally set out to achieve;
  • Decreased political support: As most initiatives to draft new legislation require considerable time, they might not be possible within the time frame of one political term or administration (frequently only four or five years). Consequently, most politicians and/or high-level officials will be reluctant to provide support for MSP without evidence of at least some results during the course of their political term/administration. The politician, being judged by the voter, often faces the need to compromise long-term vision in favour of more apparent short- term accomplishments.

 

Another way to establish authority for MSP is to depart from existing legislation, either by re-interpreting it or by slightly modifying it to provide a basis for MSP. Existing legislation (such as integrated coastal zone management legislation, legislation on the exploitation and exploration of the territorial sea or exclusive economic zone, or legislation on the protection of the marine environment) can often be interpreted or slightly modified so that it can provide authority for MSP.

In the Netherlands, for example, MSP has been developed through an ‘inter-ministerial consultation body for the North Sea’, composed of representatives from all relevant ministries, such as the military, transport, public works and water management, economic affairs and the environment. Both the authority for MSP development and enforceability of MSP outputs are derived from the 1965 Spatial Planning Act that was extended to the exclusive economic zone in 2008. This Act does not make specific requirements for MSP but can be interpreted in a way that it enables authority for doing so. With the new integrated “Water Act”, ministries are legally obliged to make spatial planning decisions according to the MSP plan.

A similar approach was taken in Norway where MSP has been developed through a governmental steering group, composed of all relevant ministries and chaired by the Ministry of Environment. The authority for MSP planning provided to the steering group and the legal status for its outcomes is derived from Norway’s Marine Resources Act that replaced the former Marine Fisheries Act.  Here again, no specific requirements were made for MSP, but the Act was constructed in such a way that it did provide a basis for MSP.

China’s 2001 Law on the Management of Sea Uses establishes the authority for “marine functional zoning”.  The law also authorises a user-fee system, that requires that any entity or individual that uses the sea must pay a fee in accordance with the regulations of the State Council. This system stipulates all entities and individuals that intend to use the sea to carry out production and other economic activities, must pay for its use.

Reinterpreting existing legislation in favour of MSP will often require substantial political and inter-agency will to achieve successful outcomes. In some cases, you might want to consider certain incentives, such as financial contributions, education and awareness, and so on, to encourage all essential agencies to participate in the process.

A third possible way to establish authority for MSP is to add it to provisions to legislation already underway or that is being considered for development in the near future. In some countries, legislation to regulate new offshore infrastructure such as renewable energy facilities and aquaculture, is already in progress. Incorporating provisions that make MSP mandatory, for example when licenses or permits for new offshore infrastructure are to be given, could be a way to establish authority. If you decide to take this approach, it is important to search for ‘win-win situations’:  what, for example, does the other sector(s) for which the legislation is written in the first place win by adding MSP provisions? Try also to have a clear understanding of any limitations contained in the provisions—in which cases will MSP be mandatory? What are the available enforcement tools?

TIP!

    It can help to consult an independent expert to review existing legislation for potential authority for MSP. In doing so, you should aim for a completely unbiased interpretation rather than one that may possibly be influenced by someone’s own support or non-support for the development and implementation of MSP.
     

The European Union’s Directive Establishing a Framework for Maritime Spatial Planning

In July 2014, the European Parliament and the Council of the European Union adopted legislation to create a common framework for maritime spatial planning in the 23 countries of the European Union that are not land-locked. While each EU country will be free to plan its own maritime activities, local, regional and national planning in shared seas are made more compatible through a set of minimum common requirements specified in the Directive (See Key MSP Documents).

‘Maritime spatial planning’ means a process by which the relevant Member State’s authorities analyse and organise human activities in marine areas to achieve ecological, economic and social objectives. Through their maritime spatial plans, Member States should contribute to the sustainable development of energy sectors at sea, of maritime transport, and of the fisheries and aquaculture sectors, and to the preservation, protection and improvement of the environment, including resilience to climate change impacts (emphasis added). In addition, Member States may pursue other objectives such as the promotion of sustainable tourism and the sustainable extraction of raw materials.

Under the law Member States were required to implement laws, regulations and administrative provisions necessary to comply with the Directive by 18 September 2016. The maritime spatial plans are to be established as soon as possible, and at the latest by 31 March 2021.

Considerations when developing/adapting legislation to provide authority for MSP

  • Specifying a desired outcome: The goal of MSP is to balance demands for development with the need to protect or conserve the marine environment. It is not just about environmental protection or economic development. The essence of MSP is integrating various sectors and concerns. Without specifying this, you might wind up with very different results, biased toward one (or more) particular sector or concern, and very far from the integrated results you originally intended to achieve;
  • Principles for MSP development: Enforceable principles are critical to a successful MSP process for a number of reasons. Most importantly, they give decision-makers transparent and defensible means of making difficult decisions. They also provide concrete notice of plan objectives to regulated entities and a basis for interested groups and individuals to engage constructively (see also Step 3, Organising the process through pre-planning);
  • Setting an end date: Experience shows that it is good practice to have an end date for both developing a draft plan and adopting a final MSP plan. MSP legislation for the State of Massachusetts (USA), for example, allowed eighteen months to develop a first plan. Although most of the planning team considered this time frame very short, it has nevertheless made the MSP process very efficient in setting goals, finding the best way to achieve them, and specifying more clearly what is possible and what not given the available resources and constraints;
  • Equal powers for a multiple-objective outcome: Your outcomes are likely to reflect the type of authority provided to institutions that will carry out MSP. The institutions representing the key sectors or concerns you are planning for should have equal powers concerning decision-making, advisory status and similar matters, when developing MSP (Click here to go to Germany for an example that illustrates this point);
  • A time frame for adaptation: MSP is a continuing and not a one-time effort. Ideally, MSP is conducted in a continuous manner and applied repeatedly over time. During the MSP process, plans can be adapted to changing circumstances. The best way to make sure that MSP is adapted over time is to provide a time frame in the legislation for doing so. The Netherlands, for example, scheduled a five-year time frame for the adaptation of its Integrated Management Plan for the North Sea 2015;
  • Provisions for MSP financing: MSP cannot be successful if not at least some funds are made available for doing it. Including financial resources in the MSP legislation can make sure the process is not jeopardized from the beginning because of a lack of funds. The State of Massachusetts (USA), for example, has established a dedicated fund, the ‘Ocean Resources and Waterways Trust Fund’ in its Oceans Act to provide the necessary financing for developing and implementing MSP. Step 2, Obtaining Financial Support, provides an overview of possible ways to raise funds for developing MSP, some of which could be made mandatory by incorporating them into legislation.

 

Your outcomes are likely to reflect the type of authority provided to institutions that will plan for MSP. In Germany, for example, the Federal Maritime and Hydrographic Agency (BSH) is authorised to prepare the draft spatial plans for marine areas while other agencies, including the Federal Agency for Nature Conservation, are invited to submit comments which are taken into due consideration in the MSP process. As a result, when the MSP plan will come into force, regulations for activities, for which BSH has authority in this plan, such as shipping, offshore wind energy, pipelines and cables, have legal status (and enforceability). Activities and/or concerns from other sectors (sectors/concerns for which BSH has no authority), such as fisheries and nature conservation, have ‘for information only’ status in the MSP plans (See Fig. 5 of the Best Practice Guide).
 

Action 2. Authority to implement marine spatial planning

As we discussed in Part 1, “Concepts and terminology for marine spatial planning of this guide”, MSP does not replace single-sector management. Instead, it aims to provide guidance to single-sector decision-makers so that the sum of all decisions is oriented toward integrated, ecosystem-based management of the ocean.

Therefore, in theory, the authority for implementing MSP could be centralised in one comprehensive organisation specially designed for MSP.  However, experience in various countries shows that it is effective to leave implementation to the existing management authorities responsible for a single sector, concern, or activity.

In Norway, for example, no changes were made to the existing institutional arrangements that implement the ‘Integrated Management of the Marine Environment of the Barents Sea and the Sea Areas off the Lofoten Islands’. The existing authority for fisheries, for instance, remains responsible for fisheries management, but now has to make its decisions consistent with the Barents Sea management plan.  A similar approach has been taken in most of the other countries where MSP is evolving, including Belgium, Germany and the Netherlands.

Another way to implement MSP is by taking a mixed approach. The United Kingdom, for example, implements MSP partially through the newly established Marine Management Organisation and partially through existing authorities. Here, fisheries, nature conservation and a number of other aspects of MSP will be implemented through this new organisation, while licences and leases for uses of the seabed, for example, will still be issued by the Crown Estate.

REMEMBER!

There are many reasons why it might be difficult to get started and there will surely be stumbling blocks along the way.
Here are a few tips to help you get over them:

  • Analyse the problem:
    • Is it because the time scale is unrealistic and needs adjusting?
    • Is it because you don’t feel equipped to start or continue?
    • Perhaps you need to ask for outside help?
    • Perhaps some sections need to be developed by someone other than you?
  • Start with the easier parts:  You don’t need to develop MSP in the exact order in which it will finally appear, so begin with parts you’re comfortable with.
  • Don’t try to do it all at once: In most countries it’s not possible to include all sectors and activities or address all conflicts and problems during the first round of MSP. Remember that MSP should be conducted as a continuing and adaptive process.  What doesn’t get done in the first plan can be addressed in the second round of planning!

 

Useful References:

China Law of the Management of Sea Use of 2001. Available at:

http://www.npc.gov.cn/englishnpc/Law/2007-12/10/content_1383439.htm.

Marine and Coastal Access Act 2009. Chapter 23 (updated as of 31 March 2015). Available at:

http://www.legislation.gov.uk/ukpga/2009/23/contents.

Washington State Legislature, 2010. Marine Waters Planning and Management. Chapter 43.372 RCW (Revised Code of Washington). Available at:  http://apps.leg.wa.gov/rcw/default.aspx?cite=43.372.

 

 

UNESCO's Step-by-step Approach for Marine Spatial Planning toward Ecosystem-based Management" offers a 10-step guide on how to get a marine spatial plan started in your region. Explore the guide by choosing steps here.

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