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Legal Context for Nearshore Marine Spatial Planning in Bermuda

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Legal Context for Nearshore Marine Spatial Planning in Bermuda Legal Context for Nearshore Marine Spatial Planning in Bermuda ENVIRONMENTAL LAW INSTITUTE M A Y 2016 Acknowledgments This report was prepared by the Environmental Law Institute (ELI) for the Bermuda Institute of Ocean Sciences (BIOS). The authors were Read D. Porter, David Roche, Kathryn Mengerink, and Bruce Myers. The authors wish to express their gratitude to the Government of Bermuda, the marine management community, and BIOS, who provided ELI with information necessary to complete this assessment. Any errors are the responsibility of ELI. About ELI Publications ELI publishes Research Reports that present the analysis and conclusions of the policy studies ELI undertakes to improve environmental law and policy. In addition, ELI publishes several journals and reporters—including the Environmental Law Reporter, The Environmental Forum, and the National Wetlands Newsletter—and books, which contribute to education of the profession and disseminate diverse points of view and opinions to stimulate a robust and creative exchange of ideas. Those publications, which express opinions of the authors and not necessarily those of the Institute, its Board of Directors, or funding organizations, exemplify ELI’s commitment to dialogue with all sectors. ELI welcomes suggestions for article and book topics and encourages the submission of draft manuscripts An electronic retrievable copy (PDF file) of this report may be obtained for no cost from the Environmental Law Institute website at www.eli.org or www.eli-ocean.org. ELI Terms of Use will apply and are available on each site. Environmental Law Institute®, The Environmental Forum®, and ELR® – The Environmental Law Institute Law Reporter® are registered trademarks of the Environmental Law Institute. Cover image: Hamilton harbour (©2015 Read Porter) Legal Context for Nearshore Marine Spatial Planning in Bermuda May 2016 ENVIRONMENTAL LAW INSTITUTE Contents 1 Introduction .......................................................................................................................................... 1 1.1 Potential for MSP in Bermuda’s nearshore waters....................................................................... 1 1.2 Designing a legally-enforceable MSP process ............................................................................... 3 2 Overview of Bermuda Government ...................................................................................................... 5 3 Issues affecting multiple uses of and activities in the nearshore marine environment ....................... 9 3.1 Ownership and disposition of ocean areas ................................................................................... 9 3.2 Planning....................................................................................................................................... 11 3.3 Species protection ...................................................................................................................... 18 3.4 Dredging and land reclamation ................................................................................................... 21 4 Regulation of uses of and activities in the nearshore marine environment ...................................... 24 4.1 Commercial fishing...................................................................................................................... 24 4.2 Recreational fishing..................................................................................................................... 32 4.3 Aquaculture ................................................................................................................................. 33 4.4 Recreational boating ................................................................................................................... 34 4.5 Recreational swimming ............................................................................................................... 38 4.6 Diving and snorkelling ................................................................................................................. 39 4.7 Cultural heritage ......................................................................................................................... 42 4.8 Utilities ........................................................................................................................................ 43 4.9 Passenger and cargo transport ................................................................................................... 46 4.10 Conservation ............................................................................................................................... 51 4.11 Energy production ....................................................................................................................... 56 4.12 Runoff, sewage, and water pollution .......................................................................................... 57 4.13 Maritime security and law enforcement .................................................................................... 62 4.14 Scientific research and education ............................................................................................... 64 4.15 Mining ......................................................................................................................................... 64 i | P a g e ENVIRONMENTAL LAW INSTITUTE Figures Figure 1. Potential 2000m boundary (in black) for marine spatial planning. ............................................... 2 Figure 2. Government of Bermuda Organizational Chart - December 2015. ............................................... 8 Figure 3. Overview of planning permission and environmental assessment. ............................................ 14 Figure 4. EIA and EIS Process under the Development and Planning Act. .................................................. 16 Figure 5. Existing area protections created under Fisheries Act and Coral Reefs Act. ............................... 28 Figure 6. Westgate Correctional Facility prohibited area. .......................................................................... 36 Figure 7. Shipping channels on the Bermuda platform. ............................................................................. 49 Figure 8. Nature reserves. ........................................................................................................................... 56 Tables Table 1. Ocean uses, laws, and responsible institutions.............................................................................. iv Table 2. Zones and Overlay areas in Bermuda Plan 2008. .......................................................................... 12 Table 3. Offences and penalties under the Protected Species Act 2003. ................................................... 19 Table 4. Management of dredging and land reclamation under Bermuda law. ........................................ 22 Table 5. Institutions governing commercial fishing in Bermuda. ............................................................... 24 Table 6. Fishing licence, registration, and permit types in Bermuda.......................................................... 27 Table 7. Institutions relevant to marine transport in Bermuda. ................................................................. 46 Table 8. Conservation area classifications. ................................................................................................. 51 Abbreviations BELCO Bermuda Electric Light Company BIOS Bermuda Institute of Ocean Sciences BPS Bermuda Police Service CFC Commercial Fisheries Council CMP Conservation Management Plan DAB Development Applications Board DCS Department of Conservation Services DENR Department of Environment and Natural Services DEP Department of Environmental Protection EEZ Exclusive economic zone EIA Environmental impact assessment EIS Environmental impact statement ELI Environmental Law Institute FCO United Kingdom Foreign and Commonwealth Office HSE Ministry of Health, Seniors, and the Environment MEHS Marine Enhancement Structure MRB Marine Resources Board MSP Marine spatial planning SDO Special development order ii | P a g e ENVIRONMENTAL LAW INSTITUTE WEDCO West End Development Corporation iii | P a g e ENVIRONMENTAL LAW INSTITUTE Executive Summary Bermuda’s nearshore marine environment is a critical economic, environmental, and social resource for the Bermudian people. It supports a wide array of personal, public, and commercial uses, from swimming to undersea cabling, which may conflict but which must be accommodated, both now and in the future. As these diverse activities expand and intensify, Bermuda should manage them as a whole rather than on a piecemeal basis. Bermuda can more effectively manage the uses of its marine environment by undertaking marine spatial planning for its nearshore waters. Marine spatial planning, or “MSP,” is a public process that organizes human activity in marine areas in time and space to meet environmental, economic, and social objectives. By creating a MSP process, the Bermuda government can create a foundation for sound, forward-looking ocean management that ensures the long-term health and stability of the marine ecosystem while supporting Bermuda’s blue economy and providing for its people. This report seeks to support the development of a strong and effective MSP process in Bermuda by providing a thorough evaluation of the legal and institutional context governing Bermuda’s marine
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