Stephanie Young

May 2, 2006

I. Introduction

The United States and the global population rely on the oceans for a variety of uses, including economic and recreational. These uses put pressure on ocean resources and ocean wildlife habitat, often with profoundly negative results. Concerns over the fate of the waters off the Massachusetts coast led Governor Mitt Romney to announce the Ocean Management Initiative in March 2003, which was followed by the introduction of ocean management legislation (Senate Bill 529) in 2005.[1] The Ocean Management Initiative's purpose is to examine the uses of water off the Massachusetts coast and to make recommendations as to how the marine resources can be protected. The utilization of ocean zoning was one of the general recommendations.

This Note recommends using ocean zoning off the Massachusetts coast to help protect the environment, support economic development, and create equitable access to the oceans. Part II provides background information on how coastal waters are currently managed and defines ocean zoning with a comparative analysis to land use zoning. In addition, Part II gives a general overview of the role of different interests in regards to the waters off the Massachusetts coast. Part III presents background information on the Massachusetts Ocean Management Initiative, while detailing the recommendations made by the Task Force. In Part IV the Note proposes that ocean zoning should be used in the waters off the Massachusetts coast. Part IV also examines different ocean zoning techniques, including ecosystem management and performance zoning and briefly discusses how different regions have utilized ocean zoning. This part of the Note proposes a hybrid approach which combines ecosystem management with performance zoning, and uses the precautionary principle as its guiding standard. Furthermore, Part IV details why a hybrid approach is optimal for zoning the waters off the Massachusetts coast.

II. Background Information

A. A Brief Summary of How the Coastal Waters Off of the United States Are Currently Managed

Both the federal and state governments play a role in the regulation of the oceans off of the United States coast.[2] Under the Submerged Land Act of 1953, the states have title to the ocean's waters and the lands beneath them beginning at the coast and extending three miles out to sea.[3] However, the federal government retains some control within these three miles. Specifically, the federal government:

[R]etains all its navigational servitude and rights in and powers of regulation and control of said lands and navigable waters for the constitutional purposes of commerce, navigation, national defense, and international affairs, all of which shall be paramount to, but shall not be deemed to include, proprietary rights of ownership, or the rights of management, administration, leasing, use, and development of the lands and natural resources which are specifically recognized, confirmed, established, and vested in and assigned to the respective States and others by section 1311 of this title.[4]

The coastal states ascertain their seaward boundaries "by extending the borders between states out to sea."[5] These coastal waters are not subject to private ownership and are held in the state public trust.[6] The public trust doctrine imposes two requirements upon states. First, "states hold title to these public lands in trust for their people and have a responsibility to protect and enhance the resource and to manage it for the benefit of the public."[7] Second, the states "cannot convey outright title to trust lands to any private individual or entity."[8] States cannot convey submerged lands or waters under the public trust doctrine unless the conveyance promotes a public purpose or can take effect without "any substantial impairment of the public interest."[9] Traditionally, states have held submerged lands in their public trust for navigation, fishing and commerce.[10] However, the public trust doctrine has expanded to protect public trust waters for recreation, environmental, and aesthetic purposes.[11]

B. Background Information on Ocean Zoning

1. What is Ocean Zoning?

The ocean is used by various people for a wide range of activities. These activities often conflict and lead to a strain on the ocean and its resources. In order to ensure that the ocean is protected, but simultaneously is open to the public, a management system must be created that addresses these concerns.[12] One suggested management system is ocean zoning. "Ocean zoning is a term and concept considered a means to guide human uses of the ocean to optimize utilization of marine resources and to provide protection of marine ecosystems."[13] Ocean zoning involves dividing the marine area into districts.[14] Within the districts, uses are regulated to accomplish specific goals.[15] The goals within each zoning district can vary from the protection of marine habitats to the exploitation of resources.[16]

Ocean zoning has its origins in land use zoning.[17] Thus, it is important to compare and contrast the ways in which land use zoning can serve as a model for ocean zoning. In general, "zoning is a regulatory tool for implementation of a plan" that may have several different objectives.[18] The different objectives include separating incompatible uses to avoid resulting uses that have an adverse effect on each other; planning based on the limits of natural resources in an area; projecting growth and economic trends; and strengthening already existing plans.[19] In addition, land use zoning creates the result that "all property within a zone is subject to the same set of regulations governing three principal factors: use, dimensions, and density."[20] Lastly, zoning is comprehensive because it "covers entire jurisdictions and the complete range of uses and circumstances likely to be encountered."[21]

However, it is not always practical for land use zoning methods to be transferred to the regulation of oceans. One of the major differences between land use zoning and ocean zoning is what is being regulated. In land use zoning, the government is trying to regulate private property, whereas the ocean is a publicly-owned resource.[22] As discussed above, the state holds title to submerged coastal lands and resources for public use within the first three miles from the shore.

Another difference is that the ocean has various segments that need protection, which may cause ocean zoning to be more complex than land use zoning. For example, ocean zoning should "address and manage activities on the ocean's surface, in the airspace above, throughout the water column, and on and beneath the seabed."[23] Due to the ocean's multiple dimensions, one ocean zone could support various objectives simultaneously or alternatively, management concerns may cause one objective to preclude all others.[24] These multiple dimensions also cause difficulty in the creation of ocean zones. To effectively create zones, there needs to be a deep understanding of the area's ecosystem, physical oceanography, chemical oceanography, and the feasible economic uses in the area.[25] However, even if there is a comprehensive understanding of the aforementioned features, the ocean resources and marine species are not static and may pass through various zones. Thus, a vital part of any ocean zoning plan is "[e]stablishing a system for monitoring the effectiveness of marine zoning in achieving management objectives over time."[26] Further, it is important to plan effectively and prioritize the various uses of the marine area.[27]

2. Concern Over the Use of Ocean Zoning

Although there is much support for the use of ocean zoning, perhaps there is the same amount of concern over the use of this technique. Many fear that it will create various adverse effects, including a strain on the public's right to use the ocean. A particular sector that often voices their concern and resistance is the fishing sector. A member of the Massachusetts Striped Bass Association, upon learning of the Massachusetts Ocean Management Task Force Report and Recommendations, stated "We are very suspicious. We started talking about [the need for a task force] because we had to worry about wind farms and coastal mining. But all we hear about is the fish and no-take zones."[28]

Other concerns are that ocean zoning, like land zoning, might create a system that is exclusory in nature. There are concerns that land zoning "empower[s] wealthy communities to exclude activities and uses that benefit society as a whole."[29] Since coastal ocean waters are held by states under the public trust, all of a state's citizens should have an equal say in its use.[30] There are also concerns that ocean zoning will create exclusive use districts[31] where specific uses are prohibited while others are permitted.[32] Exclusive zoning has resulted in "ever greater sorting out and separation of uses, as opposed to a more fine-grained mixing of different activities" that may lead to "a regulatory system that would homogenize and impoverish the ways in which we use and enjoy the ocean in the future."[33]

C. Information on the Different Sectors in Massachusetts

The waters off the Massachusetts coast support a host of activities. "Massachusetts coastal waters accommodate a wide variety of uses that are often separated by time of day, seasons of the year, location (i.e., sea floor bottom, water column, water surface air) or existing Ôzones' to accommodate specific use areas (e.g. shipping lanes)."[34] A loss in maritime and estuarine habitat and an increase in pressure on marine resources from new ocean and coastal activities may increase user conflicts substantially off the Massachusetts coast.[35]

The Massachusetts marine economy is extremely important to state residents. Thus, there is a strong interest to maintain maritime jobs in the various maritime industries found in Massachusetts. Roughly 81,808 jobs, which translate into 2.5% of Massachusetts workforce, are related to the marine economy.[36] The different marine employment sectors found in Massachusetts include: commercial fishing, commercial fishing services, marine aquaculture, processing and wholesale, retail and food sales, transportation and shipbuilding, tourism and recreation, marine tech instrumentation, environmental services, research and education, and costal construction.[37] Although a steady increase has occurred in these economic sectors, there are various concerns that need to be addressed in order to ensure that this trend continues. Some of these concerns are "education and job training, expanded infrastructure for emerging and expanding industries (e.g., aquaculture, biotechnology, and communications), and balanced and sustained growth."[38]

Of significant importance to the economies of the Massachusetts' coastal communities, and specifically to Cape Cod and the Islands, is the tourism industry and recreation sector. Cape Cod and the Islands have roughly 4.7 million domestic visitors per year. These visitors, who are attracted to the region's costal resources, make Cape Cod and the Islands the second most visited location in the state.[39] In addition to out-of-staters visiting the Massachusetts coastline, Massachusetts citizens are an integral part of the recreation sector. This is evident by the number of boats registered in Massachusetts. Overall, the number of boats registered in the state of Massachusetts is around 186,000.[40] The high amount of boat usage causes great concern over the water quality in marina areas.[41] In 1999, 46% of Massachusetts residents visited the coast to partake in various activities, including coastal viewing, coastal diving, boating, diving/swimming, and whale watching that in 1996 drew in an impressive million in revenue and created a market for surrounding businesses.[42] In total, employees in tourism, recreation and transportation totaled 30,741, and coastal tourism created 23,500 jobs with a payroll of 0 million.[43]

Specifically, the fishing sector in Massachusetts is of particular importance to the Massachusetts marine economy. The three segments of the fishing sector in Massachusetts include recreational fishing, commercial fishing, and aquaculture. The recreational fishing industry is the second most valuable in the United States and the striped bass recreational fishery is considered among the best in the county.[44] In 2002 900,000 people participated in the marine recreational fishery, spending 0 million.[45] Commercial fishing is also extremely prevalent in Massachusetts, with scallops, lobster and various species of groundfish being the most profitable catch.[46] Combined, the commercial and recreational fishing industries employ more than 80,000 people and pump around billion into the economy through various means, including fuel, bait, food, insurance and mortgage.[47] However, the marine economy has declined in the last few decades as a result of fishery restrictions and a decrease in fish stocks.[48] Not only does this affect the fishing industry directly, but it trickles down throughout related economic sectors. This tends to shift the focus of a communities' economic viability away from fishery related activities.[49] Although the aquaculture industry is small, contributing to only 3% of the seafood catch in Massachusetts, it also plays a role in the marine economy.[50] The aquaculture industry contributed million to the state economy and was valued at .6 million in 2002.[51]

Additionally, various other activities take place in the waters off the Massachusetts coast. The Massachusetts Ocean Management Task Force, in its Technical Report, divided the coastline into five areas and described the activities which took place within these areas.[52] In addition to the aforementioned activities, these regions also support industrial shipping activity within federal navigation channels, military support activities (such as Coast Guard stations and submarine routes), offshore sewage pumping, dredged material disposal sites, provision of seawater for power plants, manufacturers and businesses, municipal sewage outfalls, and sites for yachting and cruise vessels.[53] In the future, the waters off the Massachusetts coast might harbor additional economic activities, such as energy facility development sites, in the form of windmills, desalination plants, shellfish aquaculture, fish farm development sites, and an increase in the construction of docks, piers and floating hotels.[54]

III. The Massachusetts Ocean Management Task Force

A. Background Information on the Task Force

In March 2003Governor Mitt Romney and Secretary of Environmental Affairs Ellen Roy Herzfelder announced the Ocean Management Initiative.[55] The first phase of the Initiative began in June 2003 with the appointment of an Ocean Management Task Force consisting of 23 private and public sector individuals, which included representatives from federal agencies, adjacent states, and members of the state and federal congressional delegation.[56] The goal of the Task Force was to "examine the current trends and issues, identify data and information gaps, review existing ocean governance mechanisms, and draft recommendations for administrative, regulatory, and statutory changes, if deemed necessary."[57] In addition, the Task Force was asked to "develop statewide ocean management principles to guide future ocean management in the Commonwealth."[58]

Between June 2003 and March 2004 the Task Force and its six Working Groups met over thirty times.[59] During these meetings, the Task Force and the Working Groups focused on issues within the Commonwealth's jurisdiction.[60] Specifically, the area which the Task Force concentrated on was from the low water mark to the seaward boundary of the Commonwealth, which is three nautical miles offshore.[61] The Task Force also held six public meetings and released preliminary recommendations in early December 2003 for public comment, resulting in over three hundred comments being submitted.[62] The December 2003 recommendations included five Draft Principles and fifteen Preliminary Recommendations that called for a new Comprehensive Ocean Resource Management Act.[63]

B. The Recommendations Made by the Massachusetts Task Force

The Task Force structured their recommendations to fit within different themed areas, including governance, management tools, scientific understanding, and public outreach. Further, the Task Force issued six principles and fifteen recommendations for ocean management.[64] The main recommendations will be discussed briefly in this section.

With regard to governance of the ocean, the Task Force recommended the enactment of a Comprehensive Ocean Resources Management Act and proposed ocean zoning (although it did not technically call it this). The main part of the Ocean Resource Management Act is the creation of Ocean Resource Management Plans "that set forth management objectives and strategies for various discrete ocean planning areas and activities within the state waters of the Commonwealth."[65]

The Ocean Resource Management Act has various key components to it, including the adoption of Ocean Resource Management Plans.[66] The Plans could potentially replace the "first-come, first-served" approach to projects that currently exist in the Commonwealth and replace it with a proactive approach, offering guidance to users.[67] Specifically, the Plans will "[e]stablish basic standards for allowable uses, impact control, and resource protection – including which different uses and impacts allowed and/or controlled in particular areas of the state's oceans that are governed by an Ocean Resource Management Plan."[68] Although the Task Force does not directly refer to this as ocean zoning, it can be inferred that this is what Task Force meant.[69] The Task Force anticipates that the Ocean Resource Management Plans will diminish adverse public reaction, reduce user conflicts, and allow for speedier review of proposed uses by permitting agencies that are in accordance with the Plans.[70]

The Task Force also recommended common elements it felt should be in each Ocean Resource Management Plan. For example, it envisions each Plan to define a planning area, including the geographic scope and the activities or systems that would be covered by the plan.[71] These Plans would take into account the current uses and resources of the area, including the social, natural, cultural and economic factors present.[72] In addition, these Plans would also identify areas which have "resources of significant statewide interest."[73] After analyzing various factors, these plans would adopt the specific, ocean management approach for that area and would outline how the plan would be implemented and updated.[74]

IV. Ocean Zoning in Massachusetts Water

A. What Approach Should Be Taken to Zoning the Waters off the Coast of Massachusetts

1. Examination of Different Areas that have used Ocean Zoning

The use of ocean zoning has been used in various places across the globe. For example, Edgartown, Massachusetts used its state-conferred local land use zoning authority to extend a zoning district to include "all waters seaward of Mean High Water (MHW) within the town's harbors and coves."[75] Within this zone, Edgartown encouraged and allowed uses that would not have an adverse affect on its harbors and coves, marine flora and fauna, and wildlife habitat.[76]

Another example of ocean zoning is the use of Marine Protected Areas (MPAs). MPAs are zones by themselves and often lead to the development of more comprehensive zoning schemes.[77] The goal of an MPA it to protect and conserve the biological diversity, habitat, and natural resources found in a specific area.[78] To do this, an MPA applies various designations, which vary in type, size and level of protection.[79]

One example of an MPA is the Monterey Bay National Marine Sanctuary (MBNMS), which is the largest marine protected area in the United States.[80] The MBNMS is governed through the National Oceanic and Atmospheric Administration (NOAA), which considers input from the Sanctuary Management Council.[81] Within the MBNMS are zones that are designated for the following distinct purposes: "1) siting/managing particular uses (e.g. Dredged Material Disposal Zones, Vessel Traffic Zones); or 2) identifying and protecting sensitive or critical resources (e.g. Marine Life Refuges)."[82] The MBNMS contains a total of 72 zones with 13 zone types.[83]

Another domestic example of zoning is found in the Dry Tortugas, which are located seventy miles west of Key West, Florida.[84] In response to the potential destruction of this region's coral reefs NOAA designated this area as an Ecological Reserve.[85] This area, which encompasses 480 square nautical miles, is referred to as a "no take" zone. This means that all consumptive uses and commercial shipping are prohibited.[86] This area, as well as other "no take" zones, allows little to no activities in order to meet the highest priority, conservation.[87]

By contract, in the nearby zoned Florida Keys National Marine Sanctuary more activities are allowed. The main objective of this zoning scheme is sustainable use.[88] Therefore, NOAA allows various uses in specific areas within the sanctuary, such as diving, snorkeling, educational activities, and catch and release fishing.[89]

Internationally, there are examples of ocean zoning presently underway. Canada, through its Canada's Ocean Strategy, encourages the sustainable development of the oceans and their resources.[90] Canada believes that "conservation, based on an ecosystem approach, is of fundamental importance to maintaining biological diversity and productivity in the marine environment."[91] In addition, Canada adopted the precautionary approach to conservation, but still recognizes their oceans as major opportunities for economic diversification and growth.[92] Canada specifically put these goals to work through the Eastern Scotian Shelf Integrated Management (ESSI) Initiative. In order to adhere to the goals of Canada, the ESSI is considering various spatial management issues, such as the creation of corridors for fiber optic cables and the creation of MPA's within the region.[93]

2. Different Methods

Once a state considers ocean zoning to manage its waters, there are a number of available zoning methods. They include: the ecosystem approach, the performance zoning model, and spatial and temporal zoning. This section of the Note reviews land use regulation models applicable to ocean zoning.

a. Ecosystem Approach

An ecosystem includes biotic communities (living) and abiotic (nonliving) environments.[94] The ecosystem approach towards zoning focuses on the larger picture, as opposed to focusing on specific individual species or explicit critical resources.[95] Specifically, the ecosystem approach focuses on habitat protection and recognizes the concept that distinct natural communities are interconnected, and comprise a larger functioning system.[96]

The ecosystem theory is based on the scientific concept that "[e]cosystems are generally described as pyramidal structures of interconnected plants, herbivores, and carnivores with energy flowing along food webs between them."[97] Due to the interconnectivity of species within a system, a change or loss to one species can affect the entire ecosystem.[98] For example, certain commercial interests in ocean resources place constant stress on ocean fisheries. Without substantial-yield management, these resources would be consistently overexploited, creating an ecosystem crash.[99] Some worry that the continual stress upon ecosystems will continue as populations and economic pressures continue to increase, with effects on the systems not being seen until "critical threshold values are reached."[100] This in turn could lead to ecosystems being destroyed.[101]

Within the ocean context, marine reserves are the premier example of the ecosystem approach. Scientists have recognized that "[s]ingle species models cannot take account of the effects of fishery-induced food web shifts and cascading effects in the ecosystem."[102] Within the marine ecosystem context, the health of the ecosystem depends on the health of the fishery.[103] Thus, many people are proponents of Marine Protected Areas (MPAs) and believe that this ecosystem management tool is a necessary step to preserve marine ecosystems.[104] Studies show that marine reserves have several beneficial effects on the marine ecosystem, including an increase in biomass of over fished stocks, the creation of areas that are safe from direct fishing, and creation of areas which can serves as experimental sites in which various ecosystem processes can be studied.[105]

b. Performance Zoning

Performance zoning is a "a technique used not to regulate the land use but rather to regulate the impacts of the use of land by, for example, providing standards to limit certain nuisance-like activities."[106] As such, performance zoning does not regulate land use strictly on how much development is allowed in a certain areas, but rather it regulates based on the impacts development will have on the land.[107]

Specifically, a performance zoning ordnance creates performance standards for potential negative effects an activity might have on an area.[108] For example, on land a performance zoning ordinance might take into account nuisances such as "dust, smoke, noise, odor, vibration, toxic pollutants, runoff, glare, heat, and other nuisances (negative externalities)"[109] Once predetermined levels of allowable nuisances are met, land uses would no longer be allowed in a particular area.[110] Thus, performance zoning set limits on a resource-by-resource basis.[111]

c. Other Zoning Systems

In addition to the ecosystem and performance models of zoning, there are also numerous other methods of zoning. Spatial and temporal zoning is one such example. This type of zoning has been suggested for preventing anthropogenic sound on sensitive species in the ocean.[112] Another possible type of zoning is a straightforward allotment of ocean use based on the percentage of the industry's economic contribution. Although there are numerous types of zoning methods, it is clear that use of a single method is not ideal. Rather, a combination of the different ocean zoning methods would be best.

V. Which Method or Combination of Methods Would Work Best for Zoning the Ocean off the Coast of Massachusetts?

The zoning of the waters off the coast of Massachusetts should not be limited to one method. A single method would not take into account all aspects, including the economic, environmental, and cultural features that are important to Massachusetts and its coastal communities. Instead, a hybrid approach should be employed. This proposed hybrid approach would combine both the ecosystem approach and the performance zoning approach. In addition, the precautionary principle would be used as a guiding rule when permitting activities within the waters off the Coast of Massachusetts.

A. What Objectives Should Massachusetts Try to Achieve?

When creating a hybrid zoning approach, Massachusetts should first consider whether its main goal is to protect the environment, the economy or equitable access to the ocean resources.[113] Massachusetts should strive to incorporate all three, since they are all interrelated. For example, the preservation of the fishery industry will aid the economy while simultaneously protecting a natural resource.

By focusing on one goal Massachusetts runs the risk of sacrificing one industry's benefits in favor of another. The appeal of the Massachusetts coastline to visitors is the natural resources found within the waters and its aesthetic beauty. A system whose only objective is the economy might overlook what is specifically driving the economy, which is the conservation of its natural resources. Additionally, it is important that there is equitable access to the ocean resources if there are to be used for economic profit. In this way, it is ensured that all will have an equal opportunity to both enjoy the ocean and if appropriate, use its resources for profit.

B. The Hybrid Approach

The hybrid zoning system combines the ecosystem and performance zoning approaches, and utilized the precautionary principle. The water off the coast of Massachusetts should be organized into districts through use of an ecosystem management plan. By using the ecosystem approach, the state could attempt to "prevent nuisances...regulating the uses within each district, and separating those uses which would pose a nuisance to each other."[114] The districts would be created based on the various ecosystems in the ocean. This would require extensive study as to what ecosystems are present off the coast of Massachusetts and how best these ecosystems could be divided.

In addition, in sensitive areas the use of Marine Protected Areas (MPAs) should be employed. The use of MPAs, a form of the ecosystem approach, can benefit areas in various ways. MPAs, according to the Congressional Research Service (CRS), have become a practicable tool to protect coastal resources for the following three reasons: first, MPAs have helped restore populations of over fished stock; second, the MPA concept has gained support as a method in which to limit or prohibit the development of offshore energy resources; and third, MPAs are useful in preventing adverse effects and conflicts from occurring in coastal and marine areas.[115] The use of MPA's in certain regions off the coast of Massachusetts would ensure that these areas could remain viable. In addition, similar as to how the Florida Marine Sanctuary is not uniformly zoned, MPAs off the coast of Massachusetts could also have various degrees of zoning. In some areas, all uses within the MPA could be prohibited, while other areas may allow for single or multiple uses.

Within the districts, the type of activities allowed would be based on the theory of performance zoning. Performance zoning, when compared to traditional zoning techniques, offers several advantages including the ability to hold the intensity of use within a certain area constant.[116] When applied to the environment, performance zoning limits development on a resource-by-resource basis.[117] Traditional zoning, on the other hand, does not take into account the by-products of certain activities. Each ecosystem district should have a maximum intensity level set for both direct and indirect effects in that area. In addition, when an activity is proposed, it should be analyzed for disturbance levels it will cause on the surrounding ecosystems.

The hybrid approach should also consider direct present effects and future effects, centers on the concept of cumulative impact and the observation that the ocean is a fluid environment.

[A]lteration of estuarine and marine habitat and life by human activity — combines with impacts from naturally occurring environmental variation — leads to cumulative impacts to all sectors of the marine environment. Vestal et al. (1995) describes cumulative impacts as the combined outcome of numerous actions and stresses, where a group of relatively minor and major impacts may add up to severe habitat degradation or loss.[118]

For example, commercial exploitation can lead to both direct and indirect habitat destruction that will have wide-ranging spatial and temporal effects.[119] Due to the profound effects cumulative impacts can have on an entire ocean region, Massachusetts should, before approving of any permitted activities in a zone, require analysis of the activities. Massachusetts should also set maximums as to what effect the activity will have on both (1) the present, direct ecosystem, (2) the present, surrounding ecosystems, (3) the future effect on the ecosystems, and (4) the future effects on surrounding ecosystems. An activity should not be approved unless it meets all four criteria.

In addition, the Massachusetts zoning scheme should also include the precautionary principle. This principle generally requires that preventive measures be taken, regardless of whether there is reason to believe that certain harm will occur.[120] By taking this approach, Massachusetts would be able to protect its important fishing and recreation industries. Applying the precautionary principle, Massachusetts could ban or modify an activity before it harms the environment. Overall, the precautionary approach would aid Massachusetts in predicting how activities would affect the marine environment.

VI. Conclusion

Ocean zoning should be used off the coast of Massachusetts. Although ocean zoning may prove more difficult than land zoning, it will offer Massachusetts an opportunity to establish priorities, conserve natural resources and boost the State's economy. Massachusetts should not adopt a singular ocean zoning technique. Rather, it is important that Massachusetts take a hybrid approach.

The hybrid approach towards zoning would combine ecosystem management with performance zoning. In addition, the model would be governed by the precautionary principle. The ecosystem management approach, the performance zoning approach and the precautionary principle would balance each other and make for the optimal zoning technique. The ecosystem management approach would allow Massachusetts to look at the larger picture of ecosystem "districts." Massachusetts, through ecosystem management, would not focus on discrete species or resources but rather would encourage the planning of districts through large building blocks. This in turn would encourage Massachusetts to develop a greater understanding of exactly what is in and the physical and chemical attributes of each ecosystem "district."

The performance zoning component would add an additional dimension to the hybrid zoning scheme. By use of performance zoning, Massachusetts could set limits as to what would be permitted within an ecosystem district based on the impacts certain activities will have. An area would not be allowed to be "built-up" based on dimensions, while ignoring impact, but would focus on a maximum impact amount level. In this way, performance zoning would enable planners to protect both the environment and the economy in a more direct way. The maximum levels set would take into account both direct and future impacts on ecosystems.

Lastly, the precautionary principle should be used in making decisions regarding what would be permitted within areas. This approach would ensure that the impact of uses would be studied extensively before being allowed in an area. Together, these three techniques could be used to establish an effective zoning scheme for the waters off the Coast of Massachusetts.

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[1]. The Mass. Ocean Mgmt. Task Force, Waves of Change: The Massachusetts ocean Management Task Force Report and Recommendations (2004), [hereinafter The Mass. Ocean Mgmt. Task Force, Waves of Change], http://www.mass.gov/czm/oceanmanagement/waves_of_change/pdf/wavesofchange.pdf; See S. 529, 184th Gen. Ct., Reg. Sess. (Mass. 2005), available at http://www.mass.gov/legis/bills/senate/st00/st00529.htm; See Massachusetts Office of Coastal Zone Management, An Act Relative to Oceans, http://www.mass.gov/czm/oceanmanagement/orca/index.htm (last visited Jan. 7, 2006); See Governor Mitt Romney, State of the Commonwealth Address (Jan. 13, 2005), http://www.mass.gov/Agov2/docs/SOTC_Final_2005.pdf.

[2]. Robin K. Craig, Regulation of U.S. Marine Resources: An Overview of the Current Complexity, 19 Nat. Resources & Env't 3, 4 (2004).

[3]. See id. (discussing how the states regulate marine resources within the first three miles of the ocean and the federal government regulates 197 miles of the ocean past the first three miles, which is composed of the Untied States' economic exclusive zone (EEZ) and continental shelf).

[4]. 42 U.S.C. § 1314(a) (2000); See generally Joseph J. Kalo et al., Coastal and Ocean Law: Cases and Materials 353(2nd ed. 2002) (discussing the history of the Submerged Land Act of 1953, including President Truman's efforts to have federal ownership over the submerged lands within the three miles, which was then halted by President Eisenhower's election).

[5]. Craig, supra note 2, at 5. See also 43 U.S.C.A. § 1312 (1953).

[6]. Joseph J. Kalo et al., Coastal and Ocean Law: Cases and Materials 2 (2nd ed. 2002).

[7]. Andrea Marston, Note, Aquaculture and the Public Trust Doctrine: Accommodating Competing Uses of Coastal Water in New England, 21 Vt. L. Rev. 335, 343 (1996).

[8]. Id.

[9]. See Illinois Central Railroad Co. v. Illinois, 146 U.S. 387, 453 (1892). The Supreme Court also held that there is a distinction between granting a permit for a parcel of land, for example, to construct a pier and granting the whole harbor. The Court held that granting the whole harbor was not within the legislative power and would be void on its face. Id.

[10]. A. Dan Tarlock et al., Water Resource Management: A Casebook in Law and Public Policy 404 (5th ed., 2002) (discussing the limits the public trust doctrine places on private use).

[11]. Donna R. Christie, Marine Reserves, the Public Trust Doctrine and Intergenerational Equity, 19 J. Land Use & Envtl. L. 427, 432 (2004).

[12]. See generally Kelly McGrath, The Feasibility of Using Zoning to Reduce Conflicts in the Exclusive Economic Zone, 11 Buff. Envtl. L. J., 183, 187 (2004) (discussing the need for an ordered system to manage the oceans).

[13]. Fara Courtney & Jack Wiggin, Ocean Zoning for the Gulf of Maine: A Background Paper (2003) http://www.gulfofmaine.org/council/publications/oceanzoningreport.pdf.

[14]. Id.

[15]. Id.

[16]. Id. (discussing how some regulations may protect marine resource or habitats through excluding certain activities in a specific zone, whereas other zones may allow more intensive uses where protection of the habitat is not paramount).

[17]. Michael Schulz, Questions Blowing in the Wind: The Development of Offshore Wind as a Renewable Source of Energy in the United States, New Eng. L. Rev. 415, 448; See also Courtney & Wiggin, supra note 13, at 5. See also Jay Wickersham, Sacred Landscapes and Profane Structures: How Offshore Wind Power Challenges the Environmental Impact Review Process, 31 B.C Envtl. Aff. L. Rev. 325, 334-336 (2004) (discussing the "concept of planning and zoning ocean resources arises from an analogy to the land;" the history of local land use zoning, including the ad hoc manner in which ordinances were originally adopted; and the detrimental effects ocean zoning might have if schemes are jumped into). Id. (would recommend this footnote be in article)

[18]. See generally Courtney & Wiggin, supra note 13, at 5.

[19]. Id.

[20]. See id. at 6 (discussing the issuance of permits if a proposal conforms to the regulations within a specific zone).

[21]. Id. The paper goes on to note that zoning is both stable but also flexible, allowing for changes when a community has new objectives or new information.

[22]. Id. In land use zoning, the government is exercising its police power to protect the health, safety and general welfare of the public but must stay within Constitutional bounds.

[23]. Id. at 7.

[24]. Id.

[25]. See id. (discussing the need to have "adequate information and understanding" of the area, as well as the need to have a method which correctly defines the zones so that they can correctly be represented on a map).

[26]. Id. (discussing how changes in environmental conditions can cause target species to migrate out of a protected zone and how some of the living resources in a zoning scheme are highly mobile).

[27]. Id. at 8.

[28]. Greenwire, Massachusetts Panel to Suggest Zoning Ocean for Competing Uses (Mar. 23, 2004); see also Beth Daley, State Panel to Recommend Zoning Ocean and its Uses, Boston Globe, http://www.boston.com/news/local/articles/2004/03/23/state_panel_to_recommend_zoning_ocean_and_its_uses/ (Mar. 23, 2004).

[29]. Jay Wickersham, Sacred Landscapes and Profane Structures: How Offshore Wind Power Challenges the Environmental Impact Review Process, 31 B.C Envtl. Aff. L. Rev. 325, 336(2004).

[30]. Id. at 338.

[31]. See id. at 336.

[32]. Board of Supervisors of Madison County v. Gaffney, 422 S.E.2d 760, 763 (Va. 1992).

[33]. Wickersham, supra note 29, at 336 (discussing specifically how Massachusetts' waters have supported various overlapping activities, ranging from bird watching to commercial fishing and his concern that exclusive use districts would have an adverse effect on these activities).

[34]. The Mass. Ocean Mgmt. Task Force , [hereinafter The Mass. Ocean Mgmt. Task Force, Technical Report]The Massachusetts Ocean Management Task Force Technical Report 19 (Mar. 2004), available at http://www.mass.gov/czm/oceanmanagement/waves_of_change/pdf/technicalreport.pdf

[35]. Id.

[36]. Id. at 12. See also Woods Hole Oceanographic Institute, Woods Hole Sea Grant in the 21st Century: A Strategic Assessment of Issues and Opportunities, http://www.whoi.edu/seagrant/aboutus/mass.html (last visited Jan. 7, 2006).

[37]. The Mass. Ocean Mgmt. Task Force, Technical Report, supra, note 34, at 12 (showing, in graph form, the amount of employment in each sector).

[38]. Woods Hole Oceanographic Institution, Woods Hole Sea Grant, supra note 36.

[39]. The Mass. Ocean Mgmt. Task Force, Technical Report, supra note 34. The most visited region is Boston.

[40]. Robin Lacey, The Economic and Environmental Challenges of Marinas in Massachusetts. http://www.mass.gov/czm/coastlines/2004-2005/ebbflow/marinas.htm (last visited Jan. 7, 2006).

[41]. See id.

[42]. The Mass. Ocean Mgmt. Task Force, Technical Report supra, note 34.

[43]. Id. The transportation sector includes freight and passenger transport. Id.

[44]. Id. at 16.

[45]. Id. Of the 900,000 people participating in recreational fishing, 560,000 of them were Massachusetts citizens. Id.

[46]. Id.

[47]. Id. See also Smast Fisheries, The Mass. Marine Fishers Institute, available at http://www.smast.umassd.edu/Fisheries/institute.php (last visited Jan. 7, 2006).

[48]. The Mass. Ocean Mgmt. Task Force, Technical Report supra, note 34, at 16.

[49]. Id.

[50]. Id.

[51]. Id.

[52]. Id. at 22. The five regions were the North Shore (Salisbury to Nahant), Massachusetts Bay (Metro Boston Area; Nahant to Cohasset), South Shore and Cape Cod Bay (Scituate to Provincetown), Cape Cod and the Islands (Eastern and Southern waters off Cape Code, and all waters off Martha's Vineyard, Nantucket and the Elizabeth Islands), and the South Coastal Region (the waters off Buzzards Bay and Mount Hope Bay and 16 coastal communities adjacent to those waters). Id. at 22-30.

[53]. Id. at 22-31.

[54]. Id. at 42.

[55]. The Mass. Ocean Mgmt. Task Force, Waves of Change supra note 1.

[56]. Id. at 5. Dr. Susan Tierney was the chair of the Task Force. She is a former Massachusetts Secretary of Environmental Affairs, a former Assistant Secretary of Policy in the U.S. Department of Energy, and is currently the Managing Principal at Analysis Groups Inc. Id.

[57]. Id. at 5.

[58]. Id.

[59]. Id. at 6. The Working Groups were Frameworks; Policy; Use Characterization; Outreach, Principles; and Data Trends and Needs. Id.

[60]. Id.

[61]. Id. The Commonwealth has jurisdiction over Massachusetts Bay, Cape Cod Bay, and Nantucket Sound, all of which extend further than the typical three nautical miles. Id.

[62]. Id.

[63]. Nixon Peabody LLP, Energy and Environmental Law Alert, available at http://www.nixonpeabody.com/linked_media/publications/EEIA_01282004.pdf

[64]. The Mass. Ocean Mgmt. Task Force, Waves of Change, supra note 1, at 6.

[65] Id. at 29. The Task Force envisions the Act as building on and strengthening existing environmental protections. Id.

[66]. Id.

[67]. Id. at 31. The "first come, first serve" approach was widely used in the twentieth century. This approach has increased clashes between certain modern day ocean activities, such as offshore development, and more traditional activities. Id.

[68]. Id. at 29.

[69]. See generally Greenwire, Massachusetts Panel to Suggest Zoning Ocean for Competing Uses (Mar. 23, 2004). See also Beth Daley, State Panel to Recommend Zoning Ocean and its Uses, Boston Globe, Mar. 23, 2004, available at http://www.boston.com/news/local/articles/2004/03/23/state_panel_to_recommend_zoning_ocean_and_its_uses/. Both articles discuss the Ocean Management Task Force's recommendation that Massachusetts should create a zoning like system to govern their oceans.

[70]. The Mass. Ocean Mgmt. Task Force, Technical Report supra, note 34.

[71]. Id. at 30.

[72]. Id.

[73]. Id. The author lists as examples of resources that have high state interest as "special fisheries habitat protection, sensitive or unique flora and fauna and habitats, venues for public access, viewsheds with high historical or cultural significance, certain unique and valuable physical resources, such as prime wind resources, designated port areas, important shipping channels." Id.

[74]. Id.

[75]. Courtney & Wiggin, supra note 13, at 9.

[76]. Id.

[77]. Id.

[78]. Id.

[79]. Id.

[80]. Id. at 12. The Monterrey Bay National Marine Sanctuary covers approximately 300 miles of California coastline, extends about 30 miles from shore, and covers 5,300 sq. miles.

[81]. Id. at 12-13.

[82]. Id. at 13. See also Review of Zones in the Monterey Bay NMS, available at http://www.sanctuaries.nos.noaa.gov/special/zoning/zones.html (last visited Nov. 24, 2004).

[83]. Courtney & Wiggin, supra note 13, at 13.

[84]. McGrath, supra note 12, at 199. In the Dry Tortugas, some of the healthiest coral reef in the Florida Keys are found. Id.

[85]. Id. at 199-200.

[86]. Id. at 200.

[87]. See generally id. at 200 (discussing further the restrictions in this area).

[88]. Id.

[89]. Id. at 200-201.

[90]. Government of Canada, Canada's Ocean Strateg, http://www.cos-soc.gc.ca/doc/pdf/COS_e.pdf (last visited Apr. 02, 2006).

[91]. Id. at 6.

[92]. Id. at 7.

[93]. Courtney & Wiggin, supra note 13, at 21-22.

[94]. Jack Sobel & Craig Dahlgren, Marine reserves: A Guide to Science, Design and Use 14 (Island Press 2004).

[95]. Courtney & Wiggin, supra note 13, at 18.

[96]. Id.

[97]. Lara M. Bernstein, Ecosystem Communities: Zoning Principles to Promote Conservation and the Economy, 35 Santa Clara L. Rev. 1309, 1327 (1995).

[98]. See Id. (discussing examples of ecosystems that demonstrate the interconnectivity between species and the dependence by humans upon the stabilization of these ecosystems). See also Sobel, supra note 93 at 14 (referencing how the interconnectivity of species throughout marine systems causes a disturbance of one species to be felt throughout the marine system and, ultimately magnifies the threats to our oceans).

[99]. John Friedmann, Planning in the Public Domain: From Knowledge to Action 383-84 (Princeton University Press 1987).

[100]. Id. at 384. The author predicts that the world population may double by the middle of the next century and that economic pressures on the environment will be four to six times greater.

[101]. See generally, Id. at 383-84.

[102]. Donna R. Christie, Marine Reserves, the Public Trust Doctrine and Intergenerational Equity, 19 Land Use & Envtl. L. 427, 428 (2004).

[103]. Id.

[104]. See generally id at. 430.

[105]. Id. at 430-431.

[106]. American Law Institute - American Bar Association Continuing Legal Education ALI-ABA Course of Study August 26-28, 2004 Land Use Institute: Planning, Regulation, Litigation, Eminent Domain, and

Compensation. SK002 ALI-ABA 759, 772.

[107]. Elizabeth Evensen, Note, Open Space Preservation in Utah: Techniques, Tools, and First "Quality Growth" Steps, 19 J. Land Resources & Envtl. L. 267, 270 (1999).

[108]. Craig Anthony Arnold, Planning Milagros: Environmental Justice and Land Use Regulation, 76 Denv. U. L. Rev. 1, 117 (1998).

[109]. Id.

[110]. Id. at 117-118. Thus, performance zoning does allow some impact on areas. See id.

[111]. Lane Kendig et al., Performance Zoning 37 (Planners Press American Planning Association 1980) (giving an example of an area where no disturbances would be allowed because of rare resources present, compared to an areas where a higher level of disturbance would be allowed because there are less sensitive features). See also Arnold, supra note 108, at 118. The author points out that "[p]erformance zoning is essentially local environmental law."

[112]. Elena M. McCarthy, International Regulation of Transboundary Pollutants: The Emerging Challenge of Ocean Noise, 6 Ocean & Coastal L.J. 257, 286 (2001).

[113]. John A. Duff, Managing the Ocean: Consideration for Marine Area Planning and Governance in Massachusetts, http://www.mass.gov/czm/oceanmanagement/taskforce/pdf/duff.pdf (last visited Jan. 07, 2006).

[114]. Bernstein, supra note 97, at 1338.

[115]. See Donald C. Baur et al., Putting "Protection" Into Marine Protected Areas, 28 Vt. L. Rev. 497, 505 (2004). See generally Sobel, supra note 94 (discussing the benefits of MPA's).

[116]. Kendig, supra note 111, at 37.

[117]. Id.

[118]. The Mass. Ocean Mgmt. Task Force, Technical Report supra, note 34

[119]. Id. at 33.

[120]. See generally Linda M. B. Paul, The 2003 Pew Oceans Commission Report: Law, Policy, and Governance. 19 Nat. Resources & Env't 10, 14 (2004).