International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: Models for Good Practice in Australia

Transcription

1 International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: Models for Good Practice in Australia Shannon M. Johns P2009/ February 2010

2 Cover photos: (Background) Beach nourishment activities/dredging in Virgina, US; photograph by the U.S. Army Corp of Engineers (CORMIX, 2009). (Inset) Delegates at a UK stakeholder engagement seminar, on a tour of an aggregate wharf; photograph by K. Knapp (MALSF, 2007).

3 Enquiries should be addressed to: Joanna Parr CSIRO Wealth from Oceans National Research Flagship joanna.parr@csiro.au Distribution list Shannon Johns 1 Joanna Parr 1 Gillian Paxton 1 Richard Parsons 1 Copyright and Disclaimer 2010 CSIRO To the extent permitted by law, all rights are reserved and no part of this publication covered by copyright may be reproduced or copied in any form or by any means except with the written permission of CSIRO. Important Disclaimer CSIRO advises that the information contained in this publication comprises general statements based on scientific research. The reader is advised and needs to be aware that such information may be incomplete or unable to be used in any specific situation. No reliance or actions must therefore be made on that information without seeking prior expert professional, scientific and technical advice. To the extent permitted by law, CSIRO (including its employees and consultants) excludes all liability to any person for any consequences, including but not limited to all losses, damages, costs, expenses and any other compensation, arising directly or indirectly from using this publication (in part or in whole) and any information or material contained in it.

4 Contents Executive Summary...iii 1. Introduction and Background United Kingdom UK Legislation, Regulations and Policy Boundaries and ownership Marine requirements Environmental impact assessment Marine minerals policy European Union requirements UK Regulatory Stakeholder Consultation Requirements Additional Approaches to Stakeholder Engagement and Consultation in the UK United States of America US Legislation, Regulations and Policy Boundaries and ownership Outer continental shelf federal requirements Environmental requirements Coastal state requirements US Regulatory Stakeholder Consultation Requirements Additional Approaches to Stakeholder Consultation and Engagement in the US Japan Japan Legislation, Regulations and Policy Boundaries and ownership Land-based requirements and regulations Environmental impact assessment Environmental requirements Management and policy Japan Regulatory Stakeholder Consultation Requirements Additional Approaches to Stakeholder Consultation and Engagement in Japan Conclusions and Models for Good Practice in Australia Industry Overview Legislation Overview Stakeholder Consultation and Engagement Overview Models for Good Practice in Australia Directions for Future Research References...25 International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: i

5 List of Figures Figure 1 Offshore aggregate resources in the UK region (Highley et al., 2007)...3 Figure 2 Offshore aggregate resources in the continental US region (usseabed & MARP, 2009)....9 Figure 3 Offshore aggregate resources and resource mapping initiatives in Japan waters (Tsurusaki et al., 1988) International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: ii

6 EXECUTIVE SUMMARY EXECUTIVE SUMMARY Australia has a growing demand for aggregate resources which can be sourced from its marine territories. It also has legislation required to underpin an expansion of the seafloor exploration and mining industry. However, it must be recognised that this industry is just beginning to emerge in Australia and the social, environmental, and economic impacts of its expansion are as yet unclear. Research by the CSIRO Wealth from Oceans Flagship has determined that the future viability of an Australian seafloor exploration and mining industry is strongly linked to Australia s ability to improve the knowledge base underpinning its regulatory regime, and to generate open and transparent communications between stakeholders. This report addresses these issues, by discussing the international offshore aggregate industry in the United Kingdom (UK), United States of America (US), and Japan in terms of their regulatory regimes and practices in stakeholder consultation. These three countries were chosen as representative of different stages, types of involvement and legislation requirements of an offshore aggregate industry. The UK has a large and established commercial offshore aggregate industry with applicable industry-specific legislation. The US has extensive beach nourishment activities (offshore dredging) operated through the government; and recent legislation, adapted from the offshore oil and gas industry, has been developed for the initiation of a commercial offshore aggregate industry in the outer continental shelf region. Japan has a well-established, government regulated offshore aggregate industry controlled by on-land mining legislation; however, increasingly depleted aggregate resources in rivers and the near shore environment has pushed the industry further offshore. On the whole, regulatory stakeholder consultation requirements for the UK, US and Japan fall into two areas: (1) exploration and mining lease applications, and (2) required environmental impact assessments (EIAs). In particular, EIA procedures are quite similar between the three countries, where the public is allowed to submit comments and opinions following the advertisement of the EIA document. Outside of EIA requirements, the governments in the UK, US and Japan have initiated their own research into stakeholder consultation and engagement. The UK government is generally focussed on developing informed public stakeholders through active engagement and education about the offshore aggregate industry. In the US, since there is no active commercial offshore aggregate mining industry, the focus has been on beach nourishment and there is a strong government-funded environmental awareness program aimed at stakeholders about beach nourishment activities in the offshore environment. In Japan, government stakeholder studies are used to inform the exploration and mining industries to help them develop corporate social responsibility and initiate sustainable development practices. The comparisons between the offshore aggregate industries, legislation, regulatory stakeholder consultation requirements, and trends in stakeholder consultation and engagement in the UK, US and Japan can provide models for good practice in Australia. Based on our initial understanding of the regulatory frameworks underpinning the marine aggregate industry globally, some indicators of good practice are: International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: iii

7 1. Consistent industry-specific legislation in state and federal waters; 2. Environmental studies and local/regional management plans; 3. Stakeholder consultation associated with the environmental impact assessment (EIA) process; and 4. Active public stakeholder consultation surrounding the offshore aggregate industry through government and industry programs. The development of offshore aggregate industries is driven by the need for: closer sources of aggregate material to major urban centres; coastal protection in a period of increasing coastal erosion due to sea level rise; and re-evaluation of the environmental management of terrestrial and marine resources. In Australia, the increasing need for aggregate resources has and will be based upon future increasing populations in coastal areas and rising sea levels. In particular, the development of the offshore aggregate industry will depend on the opinions and involvement of stakeholders at all levels. International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: iv

8 INTRODUCTION AND BACKGROUND 1. INTRODUCTION AND BACKGROUND The mining/dredging of offshore aggregate material (sand and gravel) forms a large industry around the world for supply to the construction industry and for repairing eroded or storm damaged beaches (referred to as beach nourishment). Increasing population growth and development in coastal regions, and decreasing supplies of on-land aggregate resources has led to an expanding industry. In Australia, offshore aggregate resources are located in coastal waters around the continent (CSIRO-Geoscience Australia, 2006). However, the Australian offshore aggregate industry is small, consisting of two active operations and minor beach nourishment projects. In Moreton Bay, Queensland, silica sand is dredged by the government to meet the construction needs of the Brisbane Airport (McKay et al., 2005; Johns, 2008). Off Fremantle, Western Australia, carbonate sands are dredged by Cockburn Cement Limited to supply the resource mining and construction industries, as well as the agricultural sector (McKay et al., 2005; Johns, 2008). In the 1990s, based on a need for beach nourishment, the government of South Australia mapped out suitable offshore sand resources and carried out nourishment activities by dredging (McKay et al., 2005). In recent years, the increasing demand for construction materials and diminishing environmentally accessible and convenient supplies on-land has led to offshore aggregate exploration licence applications near major population centres in New South Wales, between Wollongong and Newcastle (Johns, 2008). However, public stakeholder, non-government organisation (NGO) and political opposition led to a moratorium on offshore aggregate mining in NSW in 2007 (Latella, 2007). Under the UN Convention on the Law of the Sea, Australia has sovereign rights to explore, exploit, conserve and manage the natural resources within the area of its Exclusive Economic Zone (United Nations, 1982; Geoscience Australia, 2008). Legislation exists in Australia to regulate the exploration and mining of offshore aggregate resources, and includes both Commonwealth and state/territory legislation: Offshore Minerals Act of 1994, 1998, 1999, 2000, and 2003 (Office of Legislative Drafting and Publishing, 1994; Office of the Queensland Parliamentary Counsel, 1998; New South Wales Parliamentary Counsel s Office, 1999; South Australia Office of Parliamentary Counsel, 2000; Western Australia State Law Publisher, 2003). Additional legislation applicable to the industry includes: the Environmental Protection and Biodiversity Conservation Act of 1999; Guidelines on the application of the Environment Protection and Biodiversity Conservation Act 1999 to interactions between offshore seismic operations and larger cetaceans of 2001, the Native Title Act of 1993, and Marine Bioregional Plans (Office of Legislative Drafting and Publishing, 1999; Johns, 2008). An Environmental Impact Assessment (EIA) is required under the Environmental Protection and Biodiversity Conservation Act for all projects which may have a significant impact on the marine environment in Australia (Office of Legislative Drafting and Publishing, 1999). An EIA involves the process of identifying, predicting, evaluating and mitigating the biophysical, social, and other relevant effects of development proposals prior to major decisions being taken and commitments made (IAIA & IEA, 1999; Johns 2008). Australia has a growing demand for aggregate resources which can be sourced from its marine territories. It also has legislation required to underpin an expansion of the seafloor exploration and mining industry. Research by the CSIRO Wealth from Oceans National Research Flagship International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 1

9 has scoped out the expansion to the seafloor exploration and mining industry in Australia in terms of regulatory contexts, international precedence, public acceptability and social issues (Boughen et al., 2007; Littleboy and Boughen, 2007; Tsamenyi et al., 2007; Johns, 2008). This research has looked in-depth at: the current state of the seafloor resources, regulations, and industry in Australian waters (Johns, 2008); provided an international review of seafloor exploration and mining trends and regulations (Tsamenyi et al., 2007); and conducted extensive social research, workshops and interviews, looking at the Australian public, government and industry opinions of seafloor exploration and mining practices (Boughen et al., 2007). Results from these projects indicated that the future viability of an Australian seafloor exploration and mining industry is very dependant on Australia s ability to improve its knowledge base underpinning its regulatory regime and to generate open and transparent communications between stakeholders (Littleboy and Boughen, 2007). This desktop study report by the CSIRO Wealth from Oceans Flagship aims to address these issues, by discussing the international offshore aggregate industry in the United Kingdom (UK), United States of America (US), and Japan in terms of their regulatory regimes and practices in stakeholder consultation. These three countries were chosen to represent different stages, types of involvement and legislation requirements of an offshore aggregate industry. The UK has a large and established commercial offshore aggregate industry with applicable industry-specific legislation. The US has extensive beach nourishment operations (offshore dredging) operated through the government; and recent legislation, adapted from the offshore oil and gas industry, has been developed for the initiation of a commercial offshore aggregate industry in the outer continental shelf region. Japan has a well-established, government-regulated offshore aggregate industry controlled by on-land mining legislation; however, increasingly depleted aggregate resources in rivers and in the near-shore environment has pushed the industry further offshore. Research for this desktop study report was conducted by extensive literature searches, legislation review, internet searches, and an interview with Dr Dafydd Lloyd Jones and Kim Bridge who are government consultants for the offshore aggregate industry in the UK. This information, gathered from three countries at varying stages of offshore aggregate industry development, is critical toward providing models for good practice in Australia. In addition to this report, the CSIRO Wealth from Oceans Flagship is conducting a parallel study to investigate stakeholder experiences associated with the engagement activities in the international offshore aggregate industry. This work will involve stakeholder interviews to gain first-hand accounts of their experiences for the purpose of identifying potential lessons for meaningful stakeholder engagement in Australia. International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 2

10 UNITED KINGDOM 2. UNITED KINGDOM The United Kingdom (UK: England, Northern Ireland, Scotland and Wales) comprises a relatively small land mass with a large population (> 61 million people: World Bank, 2009), and limited on-land aggregate resources. This has led to a well-established offshore aggregate dredging/mining industry in the UK. Offshore aggregate mining, from at least 70 production areas in England and Wales, currently represents 6.4% of construction aggregate material (sand, gravel, concrete, concrete products) used in the whole of the UK, and 20% in England and Wales alone (BMAPA, 2009). Offshore aggregate resources are primarily located in the North Sea, English Channel, Bristol Channel, and Irish Sea (Fig. 1) (Highley et al., 2007). Stormbased coastal erosion since the 1950s has also led government advisory bodies to turn to beach nourishment, through the dredging of near-shore aggregates to build up areas of the coastline (BMAPA, 2009). Between 1998 and 2007, million tonnes of marine sand and gravel was dredged in the UK, with million tonnes dredged in England and Wales during 2008 (BMAPA, 2009). Figure 1 Offshore aggregate resources in the UK region (Highley et al., 2007). 2.1 UK Legislation, Regulations and Policy UK legislation applicable to the offshore aggregate industry is complex and has undergone significant changes over the past three years with the development of new legislation, policy, environmental impact assessment procedures and regulatory guidance for the offshore region. International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 3

11 2.1.1 Boundaries and ownership The Territorial Sea Act of 1987 defines territorial waters as those less than 12 nautical miles from shore (Crown, 1987). The Continental Shelf Act of 1964 provides power to the British Crown (the Crown Estate) over exploration and exploitation activities for both marine aggregates and oil and gas resources in the shelf region beyond 12 nautical miles and up to approximately 200 nautical miles (Crown, 1964). For both these acts, the Crown Estate has ownership over most the seabed and its resources in territorial waters, and all waters of the continental shelf (Tsamenyi et al., 2007). Under the Crown Estate Act of 1961, the Crown Estate Commissioners manage the licensing for the exploration and mining of marine aggregate resources (Tsamenyi et al., 2007) Marine requirements The UK government has recently passed the Marine and Coastal Access Act of 2009 (Royal Assent from the UK Parliament on 12 November, 2009: Crown, 2009), which is the official version of the proposed Draft Marine Bill (Crown, 2008). The Marine and Coastal Access Act was created to better manage the marine environment through improved planning, licensing, environmental conservation, fisheries management and enforcement (Crown, 2008). This act also includes provisions for a Marine Policy Statement. Within the act, activities in the offshore region (including marine aggregate exploration and mining) are regulated by the Marine Management Organisation, a non-government public body (Crown, 2009). The Marine Management Organisation is in charge of: 1) preparing a series of marine plans based a government approved Marine Policy Statement; 2) setting and monitoring conditions on marine development including aggregate extraction and dredging; 3) making decisions on applications and issuing licences; and 4) consulting with government advisory bodies and affected stakeholders (Crown, 2008). The granting of licences is also dependant on compliance under the Conservation (Natural Habitats, &c.) Regulations of 1994 (Crown, 1994); which is the UK version of the European Union Habitats Directive, as described later in this section Environmental impact assessment Additional new legislation in the UK which regulates the environmental impact assessment process for offshore aggregate mining/dredging is covered by three sets of regulations for each of England, Northern Ireland, Scotland, and Wales: The Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (England and Northern Ireland) Regulations of 2007 (Crown, 2007a), The Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (Scotland) Regulations of 2007 (Crown, 2007b), and The Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (Wales) Regulations of 2007 (Crown, 2007c). Even though the regulations are specific for each country, consultation bodies within these regulations include all of England, Northern Ireland, Scotland and Wales. This EIA legislation International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 4

12 UNITED KINGDOM is specific for the extraction of minerals by marine dredging; whereas the Marine and Coastal Access Act covers all commercial industries (e.g. oil and gas, fisheries), conservation, enforcement, coastal access, and scientific research in the exclusive economic zones for the whole of the UK (Crown, 2009). This EIA legislation builds upon an extensive amount of existing environmental impact assessment legislation for multiple applications and industries in the UK. Under The Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) Regulations, all applicable dredging proposals must include an Environmental Statement, which may have further Environmental Impact Statement requirements if the project is classified as a Habitats Project. Habitats Projects are projects which are likely to have a significant impact on an area of special conservation or protection, such as a European Site. Additional Environmental Impact Statement requirements also follow for projects which may affect an adjacent European Economic Area state (i.e. within the European Union) Marine minerals policy Policy and specific legislation guidance for the UK offshore aggregate industry is provided by the Marine Minerals Guidance 1 and 2 documents, which help industry to interpret the regulations (ODPM, 2002; DEFRA, 2007). The first guidance document covers government policies and procedures for the extraction of minerals by dredging from the seabed under the former UK Government View environmental assessment procedures (ODPM, 2002). The second document provides further description of the current Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) (England and Northern Ireland) Regulations and additional policy guidance for marine minerals dredging (DEFRA, 2007). These documents cover the specific requirements for dredging applications, which include: the screening of applications, Environmental Impact Assessment and Environmental Statement requirements, monitoring, remediation, and enforcement of conditions (ODPM, 2002; DEFRA, 2007). Similar guidance documents are currently being developed for use in respect of marine minerals dredging matters in Northern Ireland, Scotland, and Welsh waters (DEFRA, 2007) European Union requirements Primary legislation for the offshore aggregate industry in the UK is regulated by several overarching European Union (EU) Directives and the OSPAR Convention for the Protection of the Marine Environment of the North-East Atlantic. The Environmental Impact Assessment (EIA) Directive (Council Directive 85/337/EEC) requires that all new public and private project proposals which may have significant effects on the environment are required to undergo an assessment of their effects on the environment, an EIA (Council of European Communities, 1985). The Habitats Directive (Council Directive 92/43/EEC) requires the conservation of natural habitats and wild flora and fauna, establishes Special Areas of Conservation, and controls activities which may affect them (Council of European Communities, 1992). Also under the Habitats Directive, Special Protection Areas are created for certain bird species, and all classified areas of special conservation or protection are protected and classified as European Sites (Council of European Communities, 1992). Any plan or project which may have a significant effect on a European Site is subject to an appropriate assessment of its implications International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 5

13 for the site in terms of its conservation objectives (Council of European Communities, 1992). In addition, the OSPAR Convention provides legal guidance for international cooperation on the protection of the marine environment of the North-East Atlantic, which comprises fifteen member countries, including the UK (OSPAR Commission, 2009). The OSPAR Convention applies international environmental policy (i.e. ecosystem approach, precautionary principle, polluter pays principle, best available techniques and best environmental practice) to prevent and eliminate marine pollution and to achieve sustainable management of the maritime area (OSPAR Commission, 2009). Member countries must abide by procedural rules, monitoring programs and guidelines set by the OSPAR Commission. In 2006, the European Union (EU) initiated the first steps towards developing an integrated European Maritime Policy for the whole of the EU, through stakeholder consultation and the development of a Green Paper (Commission of the European Communities, 2006). This Green Paper looks at merging European policies into one policy statement for the sustainable development of the oceans around the EU. In 2007, the Integrated Maritime Policy for the European Union was released (Commission of the European Communities, 2007); however, EU discussion on this policy is on-going (see European Commission, 2009). 2.2 UK Regulatory Stakeholder Consultation Requirements Stakeholder consultation in the UK applicable to the offshore aggregate industry is comprised within the Marine and Coastal Access Act. Under this act, stakeholder consultation falls with the Marine Management Organisation; who are required to work closely with marine stakeholders in order to make marine management and development decisions according to the UK government s Marine Policy Statement (Crown, 2008). These marine stakeholders include various government advisory bodies (Natural England, Joint Nature Conservation Committee, Environment Agency, Infrastructure Planning Commission, Maritime and Coastguard Agency), local authorities and other coastal stakeholders. Marine planning developed under the Marine Policy Statement will require input from interested stakeholders, and the Marine Management Organisation is responsible for stakeholder consultation during each stage of planning and proposal development (Crown, 2008). For each plan, the Marine Management Organisation will publish a Statement of Public Participation, outlining how it will involve stakeholders at each stage (DEFRA, 2009). The Statement will be kept updated during the planning process to enable stakeholders to plan ahead for their involvement (DEFRA, 2009). The Marine Management Organisation is responsible for publishing and coordinating public responses and making any necessary amendments to the plan (DEFRA, 2009). The Marine Policy Statement also states that this stakeholder consultation needs to be tailored accordingly for each coastal region/community, and suggests the creation and involvement of community steering groups or coastal partnerships to support the planning body in developing plans (Crown, 2008). Stakeholder consultation required under the Environmental Impact Assessment and Natural Habitats (Extraction of Minerals by Marine Dredging) Regulations for the UK is extensive and involves input at most stages of the environmental impact assessment process. In the initial application for dredging, an Environmental Statement/Environmental Impact Assessment must be included. These documents are made available for public comment (i.e. advertisement in the local newspaper or on a website for 28 days). Following an application for dredging, the regulator must contact the owner of the property and the appropriate consultation bodies International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 6

14 UNITED KINGDOM (Natural England, Joint Nature Conservation Committee, Secretary of State, Department of the Environment, Scottish Ministers, National Assembly for Wales, etc). Prior to a decision on the application, the regulator can also obtain comments from any person they consider should be given the opportunity to comment (e.g. a non-governmental organisation promoting environmental protection in marine waters). If the project is classified as a habitats project (i.e. likely to have a significant impact on a European Site), then the regulator may take additional appropriate steps to obtain the opinion of the public for the purposes of their assessment. If a project may have a negative environmental impact on a European Site, but there is overriding public interest in the project (i.e. economic or social), the regulator can grant permission for the project notwithstanding a negative assessment of the implications for the site. In addition, if dredging activities may affect an adjacent European Economic Area state, similar consultation (as listed above) is also carried out in that area. 2.3 Additional Approaches to Stakeholder Engagement and Consultation in the UK In 2002, the UK government developed the Aggregate Levy Sustainability Fund (ALSF) and Marine Environmental Protection Fund (MEPF), which support research aimed at minimising the effects of offshore aggregate mining (ALSF-MEPF, 2009a). The Marine ALSF program receives partial funds from a newly imposed levy on all primary marine aggregate production in the UK, to reflect the environmental cost of mining these materials (ALSF-MEPF, 2009a). Part of the ALSF research involves stakeholder engagement, education and outreach activities. A 2005 report by the ALSF Science Review stated that,... it is not so much the knowledge-base but public perception that is limiting decision making in relation to marine aggregate dredging and this needs to be addressed as a higher priority than can be achieved through dissemination from individual projects (MALSF, 2007). To address this, the Marine ALSF funded several projects on stakeholder awareness (e.g. museum displays, public and school outreach programs) (MALSF, 2007). One project (Marine aggregates Science, industry, stewardship and people networks), focused on making information readily available to all marine aggregate stakeholders (public, government, industry). The project aims included: raise awareness of the marine environment and sustainable use of resources; use a range of resources and activities to reach wide audiences; raise awareness of the role of science in environmental decision making; build collaborative networks with other organisations; and evaluation of the project to continue best practice (MALSF, 2007). Another project (Marine aggregates and biodiversity: Stakeholder engagement in South East England), addressed stakeholder awareness issues associated with impacts from the offshore aggregates industry on biodiversity. This project engaged stakeholders and interest groups near the UK s principal area of marine aggregate extraction, off the Isle of Wight, and East and West Sussex (MALSF, 2007). Some of the outcomes of this project included: International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 7

15 establishing an exchange of information between stakeholders (NGO s, consultants, government agencies, academia and local authorities) through group seminars, field trips, information pamphlets and e-bulletins; engaging with environmental professionals and volunteers by releasing a regional document to promote local involvement in marine conservation, which included contact details to enable and promote collaboration; conducting education and awareness training events for regional educators to discuss how to best increase awareness of the local coastal and marine environment and share best practice; and education and joint scientific biodiversity research projects with various sea user groups (anglers, commercial fishermen, scuba divers, the general public and community groups) (MALSF, 2007). Following the completion of the first phase of stakeholder engagement work in 2007, the Marine ALSF program admitted that there was still a need for continuity and a long-term approach to this type of public awareness work (MALSF, 2007). In 2008, a Marine ALSF project focused on the sustainability of the marine aggregate industry in terms of the socialeconomic benefits and costs (ALSF-MEPF, 2009b). Most recently in 2009, the Marine ALSF program launched the Aggregates Strategic Research Programme (MIST, 2009). However, this research focuses mainly on aggregate resources and environmental impacts, and does not include any stakeholder engagement or public awareness projects. It should be noted that outside of government the British Marine Aggregate Producers Association (BMAPA), an industry trade association, actively engages with stakeholders to improve standards in the industry (BMAPA, 2009). The BMAPA also works with regional fisheries liaison groups to enable constructive dialogue and open discussion of issues (BMAPA, 2009). Specifically, the BMAPA also works with the Crown Estate to provide detailed charts of dredging operations to the fishing industry (BMAPA, 2009). International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 8

16 UNITED STATES OF AMERICA 3. UNITED STATES OF AMERICA The United States of America (US) has large offshore aggregate deposits along the continental shelves of the east coast, Gulf of Mexico, and west coast (Fig. 2), and in the offshore regions of Alaska and Hawaii (Drucker et al., 2004; usseabed & MARP, 2009). In the US, offshore aggregate deposits in state waters of the near shore coastal zone (< 3 nautical miles) have been dredged/mined for beach nourishment purposes since the 1920s (Finkl and Hobbs, 2009); with approximately 650 million cubic metres of sand extracted over the past 80 years (usseabed & MARP, 2009). Beach nourishment involves dredging sand from offshore areas (10-40 m depth) and pumping it ashore to widen and elevate beaches and dunes to mitigate erosion (usseabed & MARP, 2009). The US Army Corps of Engineers coordinates the majority of beach nourishment activities (ICES, 2007). Increasing population growth, coastal development, and threats from future sea level rise in the US has led to recent offshore sand, gravel and shell resource mapping initiatives within federal waters of the outer continental shelf (> 3-9 nautical miles), and the development of amended resource legislation for this region (Drucker et al., 2004; Finkl and Hobbs, 2009; usseabed & MARP, 2009). Between 1995 and 2002, over 14 million cubic metres of sand was extracted from the outer continental shelf and conveyed to State, local and Federal entities for the purposes of beach nourishment, wetlands restoration and shoreline protection (Drucker et al., 2004). Figure 2 Offshore aggregate resources in the continental US region (usseabed & MARP, 2009). The dredging of marine aggregates for non-beach nourishment or other environmental purposes (i.e. commercial competitive purposes - construction industry sand and gravel requirements) comprises a very small industry in the US, with three known operations: New York Harbour entrance channel, San Francisco Bay shipping lanes, and Lake Erie (ICES, 2007; Finkl and Hobbs, 2009; Giordano, 1993; Great Lakes Dredge and Dock Company, 2008). Currently, there International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 9

17 is no industry in the US outer continental shelf for the extraction of marine aggregate resources for commercial competitive purposes, even though there is legislation to support it. In 1996, the first industry attempt to apply for commercial offshore aggregate extraction was unsuccessful (State of New Jersey, 1996; Moniz, 2000; MMS, 2009a). However, the US government is actively investing in research in the UK on the environmental effects of their current commercial offshore aggregate industry (Drucker et al., 2004). 3.1 US Legislation, Regulations and Policy Legislation in the US, applicable to offshore aggregate resources, includes laws which govern both state and federal waters in terms of resource development and extraction, leasing, and environmental protection Boundaries and ownership The Submerged Lands Act of 1953 grants individual states rights to the natural resources of submerged lands from the coastline to no more than 3 nautical miles into the Atlantic, Pacific, and Arctic Oceans, and the Gulf of Mexico (MMS, 2009a). Exceptions include Texas and the west coast of Florida, where state jurisdiction extends to 9 nautical miles within the Gulf of Mexico (MMS, 2009a). This act also defines federal claim to submerged lands seaward of state jurisdiction on the outer continental shelf (Tsamenyi et al., 2007) Outer continental shelf federal requirements Federal legislation for the outer continental shelf (lands seaward of state jurisdiction and up to approximately 200 nautical miles) is regulated by the Outer Continental Shelf Lands Act of 1953, which was primarily developed for the offshore oil and gas industry. The Minerals Management Service (MMS) within the U.S. Department of the Interior manages all exploration and development activities within the Outer Continental Shelf Lands Act. The International Activities and Marine Minerals (INTERMAR) program within the MMS assists individual states in the search for offshore aggregates for the purposes of beach nourishment (MMS, 2002). Amendments to the Outer Continental Shelf Lands Act in 1978, 1985, 1994 and 1999 included new regulations on: stakeholder consultation for coastal states, environmental assessment requirements, economic considerations, leasing procedures and fees (Tsamenyi et al., 2007). Under the 1994 amendments, Public Law was created, which allows the federal government to grant competitive leases (i.e. for the purposes of a commercial construction project) for aggregate resource mining in federal waters of the outer continental shelf (NOAA, 2009a). Leases for offshore aggregate exploration and mining/recovery under the Outer Continental Shelf Lands Act currently fall under two categories: (1) non-competitive negotiated agreements for public works projects with government agency funding, and (2) competitive lease sale where any qualified person can submit a bid (MMS, 2009a). International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 10

18 UNITED STATES OF AMERICA Environmental requirements The granting of offshore aggregate mining/beach nourishment leases also depends on compliance under a series of federal environmental legislation: National Environmental Policy Act of 1969 (Environmental Assessments and Environmental Impact Statements), Clean Water Act of 1977 (Section 401 and 404), Coastal Zone Management Act of 1972, Essential Fish Habitat Assessment, Sustainable Fisheries Act of 1996, Endangered Species Act of 1973, National Historical Preservation Act of 1966, Marine Mammals Protection Act of 1972, and Rivers and Harbors Act of 1899 (Section 10) (MMS, 2008; Finkl and Hobbs, 2009). The National Environmental Policy Act of 1969 requires that government agencies take into account the environmental, social, economic, and technical factors of proposed actions, and integrate these into their decisions (Homeland Security, 2009a). Under this act, the applicant must prepare an Environmental Assessment (EA), and federal agencies must prepare an Environmental Impact Statement (EIS) for major actions that could significantly affect the environment. These EAs and EISs are part of the lease requirements under the Outer Continental Shelf Lands Act legislation. Overall, all offshore dredging in US state and federal waters must have approval from the US Army Corps of Engineers and the US Environmental Protection Agency. Under the Clean Water Act of 1977, Section 404 requires permits from the US Army Corps of Engineers for dredging, transport and disposal operations (NOAA, 2009b). The Coastal Zone Management Act of 1972 outlines federal policy for the sustainable management of coastal regions, and requires that coastal states develop State Ocean Resource Plans to manage the balance of resources and the environment in coastal areas and waters (Homeland Security, 2009b). These management plans must be upheld for any activities affecting the coastal zone, including beach nourishment projects. The remaining acts listed previously, contain provisions for the protection of essential fish habitats, endangered species, historical sites, marine mammals, rivers and harbours. In particular, the more recent Sustainable Fisheries Act of 1996 has defined areas of Essential Fish Habitat, which include most of the continental shelf region (Finkl and Hobbs, 1996). Any applications for projects which modify the seafloor, such as offshore aggregate mining, must demonstrate that these operations would not adversely affect fish populations (Finkl and Hobbs, 1996) Coastal state requirements Of the 23 coastal states in the US, most have regulations and statutes that are applicable or expressly written for offshore areas within their jurisdiction; however, mining laws differ considerably between the states (Giordano, 1993). In general, most offshore dredging/mining activities are controlled by an individual state government agency which may include the International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 11

19 Department of Natural Resources, Lands, Mining, or a similar combination. Much of the state offshore legislation is similar to the on-land exploration and mining requirements for the minerals or oil and gas industries (i.e. permits, leases, licences, division of parcels of land) (Giordano, 1993). For example, regulations in Alabama overlap extensively with those for the oil and gas industry (Giordano, 1993). However, the majority of offshore exploration and mining/dredging activities in the coastal states are strictly for beach nourishment purposes (Giordano, 1993). The states with the most extensive regulations and procedures applicable to offshore aggregate mining include: California, Alaska, and Florida (Giordano, 1993). Both California and Alaska have long histories of on-land exploration and mining activities, and therefore have readily developed offshore legislation. In contrast, Florida s economy is based upon its coastal and marine environment (e.g. tourism, recreation, fishing and boating), and has subsequently developed legislation to protect the coastal and marine environment (Finkl and Hobbs, 2009). This protection covers the management of offshore sand resources for beach nourishment purposes, and conflict resolution surrounding other offshore infrastructure such as fibre optic cables, petroleum pipelines and deepwater ports (Finkl and Hobbs, 2009). Between 1965 and 1993, 24 beach nourishment projects were completed along 137 km of Florida s coastline, which was funded by a Tourism Development Tax (Giordano, 1993). In Hawaii, all marine mining is prohibited in the near-shore environment (< 9 m depth, < 300 m from shore); although beach nourishment activities are exempt (Giordano, 1993). 3.2 US Regulatory Stakeholder Consultation Requirements Stakeholder consultation applicable to the offshore aggregate industry is outlined in the Outer Continental Shelf Lands Act. This stakeholder consultation varies within the acts leasing requirements. For non-competitive negotiated agreements, the Minerals Management Service or lead government agency informally consults with the U.S. Fish & Wildlife Service and National Marine Fisheries Service on issues related to threatened and endangered species and essential fish habitat (MMS, 2008). Following this assessment, a draft Environmental Assessment (EA) is submitted by the applicant, where this EA may or may not be published for public comment for a period of 30 days (MMS, 2008). However, if the project is deemed to have a significant environmental impact, the lease applicant must complete a formal Environmental Impact Statement (EIS) (MMS, 2008). During an EIS, public stakeholder consultation is carried out during the project scoping and commenting phase (MMS, 2008). In contrast, the consultation procedure is more extensive for a competitive lease sale. These lease applications are followed by public and multi-use stakeholder consultation (i.e. comments, information, and indications of interest from interested parties) which addresses the following issues: commercial, navigational, recreational, and multiple-use considerations; environmental concerns; information on biological and physical resources, archaeological resources, social and economic issues; potential conflicts with approved state and local coastal management plans, and steps to avoid or mitigate these conflicts; and International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 12

20 UNITED STATES OF AMERICA indications of interest from industry for the particular lease area (MMS, 2008). During the consultation process, public workshops may also be conducted to discuss the request for information requirements and the leasing process (MMS, 2008). After these consultations, the procedure is similar to that for the non-competitive negotiated agreements, as listed above. Following approval by the Minerals Management Service for a competitive negotiated agreement, a Draft Leasing Notice is published for public comment, and a Final Leasing Notice is published before the sale is held (MMS, 2008). In general, the public and multi-use stakeholder consultation is more frequent and extensive for a competitive lease sale, as opposed to a non-competitive negotiated agreement. Within the state legislation, stakeholder consultation is limited and based on lease conditions. In the state of Delaware, stakeholder consultation in the form of a public hearing is required for all proposed offshore mining activities (Giordano, 1993). However, most states do not explicitly outline consultation requirements. 3.3 Additional Approaches to Stakeholder Consultation and Engagement in the US Since 1973, under the Outer Continental Shelf Lands Act, the Minerals Management Service (MMS) has funded an Environmental Studies Program to collect and summarise environmental, social, and economic science information to support decision-making for the MMS marine minerals (offshore aggregate extraction) and oil and gas programs (Drucker et al., 2004). While this program is largely focussed on biological and aggregate resource studies, there is a small component looking at regional management strategies which include stakeholder consultation and engagement (Michel, 2004). In 2000, workshops were conducted in New Jersey and Texas by the MMS to collect stakeholder input on how best to manage the use of federal outer continental shelf aggregate resources for beach nourishment projects (Michel et al, 2001; Michel, 2004). These workshops included representative stakeholders from the local government, state and federal government agencies and departments (e.g. Marine Fisheries, Coastal Planning, Fish and Wildlife, Geological Survey, Historical Preservation), universities and the US Army Corps of Engineers (Michel et al, 2001). During these workshops, stakeholders identified issues with the current management and study of the offshore aggregate resources and environmental effects of dredging, and contributed specific ideas towards the development of a regional management strategy for each state (Michel et al, 2001). Part of these management strategies included the development of state Sand Management Task Forces which would include stakeholders from not only local government, state and federal government agencies, but representatives from the dredging industry and local fisheries (Michel et al, 2001). In 2009, the US government with the MMS initiated the development of a national framework for coastal and marine spatial planning (MMS, 2009b). In August 2009, stakeholders, interested parties and the public were asked to contribute comments on an Interim Report outlining national oceans policy and management (MMS, 2009b). These comments were obtained during regional public meetings and other public involvement activities (MMS, 2009b). In December, 2009, a coastal and marine spatial planning framework document was released for public review and comment (MMS, 2009b). Several coastal states (Massachusetts, New Jersey, Rhode Island) have already developed their own marine spatial planning efforts which are developed by International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 13

21 informed stakeholder commissions and councils of scientists, industry and government representatives (MMA, 2009b). International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 14

22 JAPAN 4. JAPAN Aggregate for the cement and construction industries in Japan was extensively mined from riverbed deposits throughout the country between 1875 and 1964 (Tsurusaki et al., 1988). After 1964, the construction of dams also used riverbed aggregate as a source for material (Tsurusaki et al., 1988). However, in 1966 due to the rapid depletion of the riverbed aggregate sources and the subsequent erosion of river embankments, the Ministry of International Trade and Industry recommended that the seabed be used as a secondary source of fine aggregate material (Tsurusaki et al., 1988). The current offshore aggregate (i.e. sand) mining industry in Japan is quite large and contributes 20-25% of all natural aggregate and up to 40% of all fine aggregate for concrete in Japan (Tsurusaki et al., 1988; Morimoto, 1985). Some of the small islands in Japan depend on marine sand as their sole source of aggregate (Chen, 2009). In 1988, offshore sand mining in Japan produced over 70 million tonnes (Tsurusaki et al., 1988). The majority of the offshore aggregate is mined from near-shore shallow waters (< 35 m depth). The continuing depletion of these near-shore resources and other factors (coastal erosion, destruction of the marine environment, and competition with fisheries) led the Geological Survey of Japan and the Ministry of International Trade and Industry to conduct aggregate resource studies in deeper waters of the continental shelf off Japan (Tsurusaki et al., 1988). To date, the majority of offshore aggregate mining is conducted off the north coast of Kyushu, within the Seto Inland Sea, and off the south coast of Shikoku (Fig. 3) (Tsurusaki et al., 1988). In addition there is limited offshore iron sand mining for the steel industry off the Kagoshima, Shimane, and Oita Prefectures (Okano, et al., 1987; Curlin, 1996). Figure 3 Offshore aggregate resources and resource mapping initiatives in Japan waters (Tsurusaki et al., 1988). International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 15

23 4.1 Japan Legislation, Regulations and Policy Boundaries and ownership Japan lays claim to waters of their Exclusive Economic Zone (approximately 200 nautical miles from the shore) under the U.N. Convention on the Law of the Sea (United Nations, 1996). This claim is described by the Law on the Exclusive Economic Zone and the Continental Shelf (Act No. 74 of 1996) (United Nations, 1996). This law allows for exploration and mining activities as well as the conservation and management of natural resources and the marine environment in Japan waters (United Nations, 1996). Japan also defines coastal waters within their territorial sea boundary (3-12 nautical miles from the shore) (Kawasaki-Urabe and Forbes, 1997). In November 2008, Japan put in a claim to the United Nations to extend the limits of their continental shelf boundary beyond 200 nautical miles (United Nations, 2009) Land-based requirements and regulations Overall, offshore aggregate mining in Japan is regulated by the local government, with federal laws in place for all on-land and offshore exploration and mining activities. Since there is no specific marine minerals statute in Japan, offshore aggregate mining is carried out under the land-based Mining Act (Act No. 289 of 1950; Amended 1994, No. 94), Quarrying Act (Act No. 291 of 1950) and Gravel Extraction Act (Act No. 47 of 1959) (Curlin, 1996; Japanese Law Translation, 2009a; e-gov, 2009a; 2009b). The Mining Act provides for all mining activities (including silica/sand mining) and the sustainable development of the resources; however it does not make any specific references to offshore minerals. The Quarrying Law regulates the on-land quarrying industry, but has application to offshore aggregate mining (METI, 2009; e- Gov, 2009a). The Gravel Extraction Act specifically covers aggregate mining activities (sand and gravel) both on-land and offshore (in rivers) (e-gov, 2009b). Under these three laws, exploration and mining permit applications go through the Governors of each local prefecture and/or the regional Director-General of the Ministry of Trade and Industry, depending on the expanse of the operations (Curlin, 1996). For these laws, the government regulation of the offshore mining industry takes into account several factors associated with the marine environment: Fishing rights, Location (minimum distance from shore and minimum water depth), Conflicting users (fisheries negotiation), Prohibited areas (seaweed aquaculture plantations, drag net areas, natural parks), Buffer zones (sometimes > 500 m between zones), Mining and discharge methods (sand pumps or grab bucket), Quantity of material, Duration of license, Uses of resource, International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 16

24 JAPAN Status of applicant and mining vessel, and Market area (Curlin, 1996; Tsurusaki et al., 1988). Under the Mining Act, when the mining of minerals is found to have either no economic value, be harmful to health, destroy facilities for public use or any facility equivalent to the above, disrupt the protection of cultural properties, parks or hot spring resources, or impair the interests of agriculture, forestry and other industries, or be extremely adverse to public welfare, the regional Director can refuse mining applications for these areas, decrease the size of the mining area, or take away the mining right for the area (Japanese Law Translation, 2009a). Under the Gravel Extraction Act, the local Governor or River Administrator can refuse an extraction application if it may damage facilities used by the public, or if it is contrary to public welfare (e- Gov, 2009b) Environmental impact assessment The Environmental Impact Assessment Act (Act No. 81 of 1997) provides an official procedure for conducting an Environmental Impact Assessment (EIA), which is required for all major projects which change the shape of the terrain (including dredging), or establish, modify, or expand a structure for specific purposes (Government of Japan, 1997; 2005). The specific provision for dredging in the legislation is assumed to form a requirement for the offshore aggregate industry, although no specific references are made to mining projects on-land or offshore. Projects are separated by class level, with Class 1 representing large-scale projects that are determined by the government as being likely to have a serious impact on the environment (i.e. roads, dams, railways, airports, power plants, waste disposal sites, residential or industrial development, port and harbour planning), and Class 2 representing smaller-scale equivalent projects to Class 1 as determined by the government (Government of Japan, 1997). An EIA is required for all Class 1 projects; whereas EIAs are not required for Class 2 projects, but may be applied under individual circumstances on a case-by-case basis (Government of Japan, 2005). When an EIA is not required for a Class 2 project, the local government is responsible for regulating the project (Government of Japan, 2005) Environmental requirements Other applicable environmental regulations for the offshore aggregate industry include the: Fishery Act (Act No. 267 of 1949), The Act on the Protection of Fishery Resources (Act No. 313 of 1951), Act on the Conservation of Endangered Species of Wild Fauna and Flora (Act No. 57 of 1993), Law Relating to the Prevention of Marine Pollution and Maritime Disaster (Act No. 136 of 1970), and Law concerning Special Measures for Conservation of the Environment of the Seto Inland Sea (Act No. 110 of 1973) (Japanese Law Translation, 2009b; 2009c; e-gov, 2009c; e-law, 2008; FAOLEX, 2009). International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 17

25 4.1.5 Management and policy Currently, the Japan Oil, Gas and Metals National Corporation Act (Act No. 94 of 2002) regulates most exploration and mining activity in the country, both on-land and offshore (JOGMEC, 2009; Tsamenyi et al., 2007). Under this law, the semi-governmental organisation Japan Oil, Gas and Metals National Corporation (JOGMEC), formerly the Metals Mining Agency of Japan and Japan National Oil Corporation, is in charge of ensuring a stable supply of oil and natural gas and nonferrous metal and mineral resources, implementing mine pollution control measures, and carrying out government policy relating to the mining industry (JOGMEC, 2009; Tsamenyi et al., 2007). This policy covers the following activities: Mineral resource exploration within and outside of Japan; Technical cooperation for mineral resources in developing countries; Mining-related environmental protection; Technological research and development; and Rare metals stockpiling (Tsamenyi et al., 2007). In addition, JOGMEC also provides financial assistance for exploration and mining companies in order to keep the industry stable, and for controlling environmental damages from mining operations (JOGMEC, 2009). 4.2 Japan Regulatory Stakeholder Consultation Requirements Under the Mining Act, if a mining operation is found to interfere with the utilisation of the land (i.e. farming) the regional Director must notify the land owner and give them an opportunity to participate in a public hearing where they can voice their opinions and the opportunity to submit a written opinion to the Environmental Dispute Coordination Commission within a reasonable period of time (Japanese Law Translation, 2009a). This consultation also applies to fishing rights (as described under the Fishery Act: Japanese Law Translation, 2009b) for offshore mining applications, in the form of fisheries negotiations (Tsamenyi et al., 2007). Where there is conflicting uses for a particular area, test mining permits are first applied for and submitted to the Coordinating Committee of Fisheries and the local prefecture government (Tsamenyi et al., 2007). The test mining is monitored by the local fishery association; if full mining is approved, the mining company must provide monetary compensation to the fisheries association in proportion to the sand volume mined (Tsamenyi et al., 2007). This compensation is required under the Mining Act, and may include monetary compensation or restoration of the affected area (Japanese Law Translation, 2009a). In addition, if a dispute arises concerning compensation for mining pollution, mediation is undertaken by the Director of Regional Bureau of Economy, Trade and Industry and a selected panel of up to fifteen mediators with experience in the relevant industries (i.e. offshore aggregate mining, fisheries) to represent public interest (Japanese Law Translation, 2009a). Under the Environmental Impact Assessment Act, Class 1 and selected Class 2 projects must undergo an EIA (Government of Japan, 1997). During the initial stages of an EIA, a project International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 18

26 JAPAN scoping document is sent to the local municipal mayors and prefectural governments which will be affected, and is publically announced; where members of the general public may voluntarily submit opinions within 90 days of the announcement (Government of Japan, 2005). The submitted public opinions are then sent to the local government representatives, and their opinions are requested (Government of Japan, 2005). Following local government assessment of opinions and evaluation of environmental impacts, a Draft Environmental Impact Statement (EIS) is prepared, sent to the local government representatives, and announced publically (Government of Japan, 2005). During this time period, open meetings are held to explain the contents of the Draft EIS and comments can be submitted by the local governments and the public, with additional opinions received from the applicable government Ministry and/or the Environment Minister (Government of Japan, 2005). Following approval, the finalised EIS is submitted to the Ministry of Environment for the last decision in the process (Government of Japan, 2005). If approved, the EIS is made available for public viewing for one month (Government of Japan, 2005). If a Class 2 project is not required to undergo an EIA, local governments apply their own Environmental Impact Assessment Ordinance procedure which involves holding public hearing to ask citizens comments (Government of Japan, 2005). 4.3 Additional Approaches to Stakeholder Consultation and Engagement in Japan The Japan Oil, Gas and Metals National Corporation (JOGMEC) gathers and provides information on the exploration and mining industries in the country, which includes the sustainable development of mining operations (JOGMEC, 2009). JOGMEC have conducted stakeholder surveys to assist the Japanese mining industry in adopting sustainable practices (JOGMEC, 2009). These surveys looked at the activities of mining-related non-government organisations (NGOs) and stakeholder trends, including those of local communities (JOGMEC, 2009). Following the surveys, several roundtable discussions on environmental Corporate Social Responsibility (CSR) were held with Japanese mining industry representatives to discuss NGO and public stakeholder opinions, and sustainable development (JOGMEC, 2009) The Japan Chapter of the International Association for Impact Assessment (IAIA Japan) conducts research to look at the problem of sustainability and impact assessment with regards to all industries (Harashina, 1998). In particular, IAIA Japan conducts research on techniques of citizen participation in impact assessment, and encourages processes which foster communication (Harashina, 1998). International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 19

27 5. CONCLUSIONS AND MODELS FOR GOOD PRACTICE IN AUSTRALIA 5.1 Industry Overview Within the UK, US and Japan, the offshore aggregate industries are at varying levels of development. The UK has a very mature and large offshore industry which supplies 20% of aggregate material used in the construction industries in England and Wales. In the UK, there is also an emerging requirement for offshore aggregate for beach nourishment and coastal erosion projects. The US does not currently have a commercial offshore aggregate industry, but has been dredging offshore for beach nourishment projects since the 1920s. Recent offshore resource studies have been undertaken in the US in preparation for the development of a commercial offshore aggregate industry. Japan has a large offshore aggregate industry which supplies the construction industries; however in recent years the industry has seen a shift to areas further offshore as river aggregates and near-shore resources have been depleted. 5.2 Legislation Overview Offshore industries are regulated in the UK, US and Japan by the limits of their offshore boundaries, which include coastal waters (up to 12 nautical miles from the shoreline) and federal waters (up to approximately 200 nautical miles from the shoreline). Legislation surrounding the offshore aggregate industries in the three countries is similar with respect to their requirements for exploration and mining leases and environmental impact assessments. However, the government acts, regulations and policy differ depending on the level of development of the industry. In the UK, overarching legislation is provided by the whole of the European Union in terms of environmental assessment and protection; but in the last three years, extensive new legislation has been developed to manage the marine environment and its industries, with additional specific legislation for environmental impact assessments for dredging by the offshore aggregate industry. In contract, the US has limited legislation for the commercial extraction of offshore aggregates, which is based on that used by the offshore oil and gas industry. However, much of this legislation is yet to be tested, with the vast majority of offshore dredging/mining activities focused on government-funded and -supported beach nourishment activities. In Japan, there is no specific legislation developed for the offshore aggregate industry, where the on-land mining laws have been expanded to include the offshore industry. However, there is a link between some of the legislation, which provides for local government control of industry, and dispute resolution between industries which use the same area (i.e. fisheries and offshore mining). 5.3 Stakeholder Consultation and Engagement Overview On the whole, regulatory stakeholder consultation requirements for the UK, US and Japan fall into the areas of exploration and mining lease applications and required environmental impact International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 20

28 CONCLUSIONS AND MODELS FOR GOOD PRACTICE IN AUSTRALIA assessments (EIAs). In particular, EIA procedures are quite similar between the three countries, where the public is allowed to submit comments and opinions following the advertisement of the EIA document. The following paragraphs describe emerging trends in government-initiated stakeholder consultation and engagement at various levels for each of the UK, US and Japan. The UK is generally focused on developing informed public stakeholders through active engagement and education about the offshore aggregate industry. These education programs are solely funded through government programs such as the Aggregate Levy Sustainability Fund, and do not include industry sponsors. Based on the regulatory requirements, there is a notable paucity of public and non-government organisation (NGO) involvement in actual stakeholder consultation surrounding the offshore aggregate industry; where the stakeholders consulted usually consist of informed, organisational stakeholders (e.g. government departments, fisheries, aquaculture, etc). The general public and NGOs are usually communicated the decisions of a particular application, but are not often involved in the decision-making process. New legislation and policy in the UK passed through the government in 2009, has recently led to much more extensive requirements for stakeholder consultation in the form of marine planning initiatives. The newly created Marine Management Organisation will be responsible for conducting public stakeholder consultation and the publishing of a Statement of Public Participation for each marine plan. Additional policy states that this stakeholder consultation needs to be tailored accordingly for each coastal region/community, and suggests the creation and involvement of community steering groups or coastal partnerships to support the planning body in developing marine plans (Crown, 2008). Outside of the government, the British Marine Aggregate Producers Association actively engages public, government, and other industry stakeholders to improve the standards of the offshore aggregate industry. In addition, this association works with regional fisheries liaison groups to openly discuss issues related to the industry. In the US, since there is no active commercial offshore aggregate mining industry outside of the beach nourishment projects, there is a strong government-funded environmental awareness program aimed at stakeholders about beach nourishment (i.e. dredging) activities in the offshore environment. Generally, government representatives and other informed stakeholders (e.g. government departments, fisheries, scientists, etc) are involved in coastal regional management planning. Similar to the UK, there is a lack of required public and NGO involvement in stakeholder consultation in the regulations; where the stakeholders consulted are usually of the informed stakeholder group. If a commercial offshore aggregate industry does begin to develop in the US, there are plans for increased stakeholder consultation in the form of state Sand Management Task Forces, which would include both informed and uninformed stakeholders from local government, state and federal government agencies, and representatives from the dredging industry and local fisheries (Michel et al, 2001). To date, these Sand Management Task Forces have not yet been initiated. However, in late 2009, the US government and the Minerals Management Service conducted regional public meetings and other public involvement activities to obtain comments on recently released national oceans policy, management, and coastal and marine spatial planning documents (MMS, 2009b). In Japan, government stakeholder studies are used to inform the exploration and mining industries to help them develop Corporate Social Responsibility (CSR) and initiate sustainable development practices. It is not apparent from the information obtained, that stakeholders are consulted in these studies; however, stakeholder activities are used to gauge stakeholder interest International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 21

29 and opinions of the industry. With regards to the offshore aggregate industry, Japan has extensive stakeholder consultation between the industry and the local/prefecture fisheries associations. The offshore aggregate industry is required to engage with local fisheries in project development, test mining studies, and compensation agreements. 5.4 Models for Good Practice in Australia The comparisons between the offshore aggregate industries, legislation, regulatory stakeholder consultation requirements, and trends in stakeholder consultation and engagement in the UK, US and Japan can provide models for good practice in Australia. The increasing need for aggregate resources in Australia is similar to the UK and Japan; in that, sources of aggregate material either: do not exist in sufficient quantity, have been mined out from locations proximal to urban centres, or the available resources are distant from urban centres. Increasing populations in coastal areas and coastal erosion in the US has led to a requirement for the remediation of coastlines and beach nourishment; these trends may be seen in Australia in the future with sea change population shifts and rising sea levels. Australia has a nascent offshore aggregate mining industry with variable stakeholder support. The development of this industry is driven by the need for: closer sources of aggregate material to major urban centres; coastal protection in a period of increasing coastal erosion due to sea level rise; and re-evaluation of the environmental management of terrestrial and marine resources. The industry s growth will also depend on the opinions and involvement of stakeholders at all levels. Based on our initial understanding of the regulatory frameworks underpinning the marine aggregate industry globally, some indicators of good practice are: 1. Consistent industry-specific legislation in state and federal waters The maturity of the UK offshore aggregate industry has resulted in industry-specific legislation, which provides clear and consistent guidelines for government regulators and industry representatives. In the US there is consistent outer continental shelf legislation, but the regulations vary from state to state in the coastal areas. Australia is currently developing a unified series of legislation which covers both state/territory and Commonwealth waters which include the Offshore Minerals Act of 1994 (Commonwealth), 1998 (Queensland), 1999 (New South Wales), 2000 (South Australia), and 2003 (Western Australia) (Office of Legislative Drafting and Publishing, 1994; Office of the Queensland Parliamentary Counsel, 1998; New South Wales Parliamentary Counsel s Office, 1999; South Australia Office of Parliamentary Counsel, 2000; Western Australia State Law Publisher, 2003). The Northern Territory and the states of Victoria and Tasmania have yet to pass equivalent legislation (Johns, 2008). 2. Environmental studies and local/regional management plans An understanding of the environmental impact of seafloor activity is critical to the sustainable development of an offshore aggregate industry. The US is taking a proactive approach by conducting extensive scientific studies on the environmental impacts of beach nourishment and International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 22

30 CONCLUSIONS AND MODELS FOR GOOD PRACTICE IN AUSTRALIA the management of marine resources, prior to permitting the first commercial operation to begin mining. In Japan, the industry must conduct test mining environmental trials before approval from local fisheries. In the UK, the Marine Aggregate Levy Sustainability Fund program funds research to promote environmentally friendly aggregate extraction in the marine environment in England (ALSF-MEPF, 2009a). In the US and Japan, the governments are also involved with local and regional management of marine resources: with planned state Sand Management Task Forces in the US, and local government regulation of the industry in Japan. Recently in the US, there are extensive plans for coastal and marine spatial planning in states such as Massachusetts, New Jersey and Rhode Island (MMS, 2009b). In the UK, the Marine Management Organisation is in charge of developing a series of marine plans for the future management of the marine environment (Crown, 2008). 3. Stakeholder consultation associated with the environmental impact assessment (EIA) process All three countries have opportunities for stakeholders (in particular public and NGOs) to submit their opinions and take part in the required EIA process. However, Japan has the most extensive opportunities (three throughout the approvals process) for stakeholders to comment on EIA documents. In all three countries, provisions are only made for stakeholders to voluntarily submit comments on the EIA documents, and are not actively engaged for their opinions by the government or industry. In the UK, recent legislation for marine policy and the development of marine plans will enable the public to have more extensive input towards how a particular marine area is managed, and the types of industry that will be permitted. This forward planning provides stakeholders with the opportunity to comment on potential projects before the EIA stage. 4. Active public stakeholder consultation surrounding the offshore aggregate industry through government and industry programs Despite providing opportunities for stakeholder input into the EIA process, there is still limited public consultation regarding the offshore aggregate industry as a whole. In the UK, active efforts are made by the government to educate the public about the industry and environmental studies about its effects; and the development of marine plans will provide the public with an opportunity to voice their opinions on the management of the marine environment. In the US, stakeholders from the local government, state and federal government agencies and departments, universities, and the US Army Corps of Engineers are involved with contributing to the management and study of the offshore aggregate industry in terms of beach nourishment. In Japan, surveys of activities of mining-related NGOs and stakeholder trends, including those of local communities, are used to inform the industry on environmental corporate social responsibility and sustainable development. However, it is noted that government bodies in these countries do not actively engage local public or NGO stakeholders for their opinions on the offshore aggregate industry as a whole; where informed government, university and industry stakeholders are the commonly the only ones to participate in the process. In the UK, the British Marine Aggregate Producers Association is at the forefront of stakeholder consultation outside of the government. This industry trade association actively engages with stakeholders to improve standards in the industry and works with regional fisheries liaison groups to discuss International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 23

31 issues associated with the offshore aggregate industry. In the US and Japan, there is limited interaction between the commercial offshore aggregate industry and the public. 5.5 Directions for Future Research The nature of any offshore aggregate industry in Australia, its sustainability, the regulatory regime in which it works, and the stakeholder consultation practices that are used, can be significantly improved through a good understanding of international practice. The CSIRO Wealth from Oceans Flagship is currently conducting a parallel study to this desktop study report. This project involves investigation of stakeholder experiences associated with the engagement activities in the international offshore aggregate industry. This work will involve stakeholder interviews to gain first-hand accounts of their experiences for the purpose of identifying potential lessons for meaningful stakeholder engagement in Australia. International Regulatory Regimes and Stakeholder Consultation for the Offshore Aggregate Industry: 24

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40