3.5 Regulatory Permits

1. MCA Field Guide
2. MCA Field Guide Checklist
3. Phase 3: Agreement Design Checklist
4. 3.1 Conservation commitments are established
5. 3.2 Recipient benefits are determined
6. 3.3 Compliance mechanisms are developed
7. 3.4 Sanctions are agreed upon
8. 3.5 Regulatory permits issued or applied for
9. 3.6 Final actions are completed

Implementation actions planned under Marine Conservation Agreements (MCAs) may trigger one or more regulatory criteria, making authorization by government agencies necessary. Such actions include, but are not limited to:

• Installation of signs and structures for enforcement and recreation purposes (see 4.5 Enforcement and 4.6 Public Uses)
• Community and livelihood development (see 4.7 Livelihoods)
• Habitat improvement and species propagation (see 4.8 Habitat Management)
• Maintenance activities including general cleanup and signage (see 4.9 Maintenance)

At this point in the process, all regulatory permits should be identified and applied for that are required as part of the project and required to be obtained prior to signing the MCA (i.e., closing the sale or issuance of a lease or contract) . Numerous local, state, and federal regulatory agencies and permits may be involved. Permitting requirements are site and project-specific and must be determined on a case-by-case basis. The receipt or ability to receive needed regulatory permits should be made a contingency for signing the formal MCA document.

Ocean and Coastal Issues: Regulatory permitting requirements for activities undertaken in ocean and coastal waters can be complicated, confusing, and controversial. Early and frequent contact with regulatory agencies should facilitate permitting. Conservation organizations should expect delays and numerous, iterative discussions and permit applications. The Country Analyses and U.S. State Analyses provide information on possible permitting requirements as well as agency contact information for some areas.

Lease Issues: Leasing agencies may require that conservation organizations have all regulatory permits in-hand prior to issuance of leases. However, regulatory agencies may not be able to issue permits in the timeframe required of the transaction or conservation organizations may not be prepared (for a number of reasons) to apply for the permits. If this is the case, conservation organizations may have to seek an exception to the permitting requirements based on the expectation that regulatory permits will likely be received at a later time. A contingency clause in the lease or letters from regulatory agencies may allow for this later receipt of permits.

Generally speaking, public agencies may be reluctant to move to final execution (i.e., issuance) of a lease before the regulatory permits have been issued. However, this does not mean that a lease application cannot be submitted and negotiated, pending the issuance of the regulatory permits. This is the difference between an application being “filed” and one being “perfected.” Also, in some cases where the process of lease issuance may be protracted, a public agency may be willing to issue a lesser use authorization (e.g., right of entry) for the purposes of expediting on-site inspections and preparatory work in anticipation of lease negotiations.

Moreover, conservation organizations can find themselves in a Catch-22 if they do not approach both the leasing agency and the regulatory agencies in a coordinated fashion. Regulators may ask for design elements that are not acceptable to the leasing entity or vice versa. Constant project re-designs can greatly reduce the cost-effectiveness of a project. Pre-permitting conferences and discussions with agency staff can help avoid such situations.

Next Sub-step

After all necessary regulatory permits have been issued (or, at a minimum, applied for), final actions must be taken to consummate the MCA.

Proceed to 3.6 Final Actions

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