Polish law on MSP

Journal of Law

Abstract: 

The law determines not only the responsible authorities, aims and objectives of maritime spatial plans and the issues it/they should regulate but also describes key procedures of preparation of the plan and its consultation with focus on public participation. Detailed provisions concern also adoption of the plan and its periodical evaluation.

Sea Basin(s): 
Country: 
Year: 
2015
Application in MSP: 
Applied in an MSP process
Sectors: 
Not sector specific
Type of Issue: 
Cross-border cooperation
Data
Economic aspects
Environment aspects
Safety aspects
Social aspects
Stakeholders
Type of practice: 
Other
Stage of MSP cycle: 
Vision and aims
Stocktake
Analyse spatial aspects
Develop and implement plan
Cross-border / trans-national aspect: 
No
Coherence with other processes: 
Habitats and Birds Directive
Integrated Coastal Zone Management
Marine Strategy Framework Directive
Renewable Energy Directive
Strategic Environmental Assessment
Trans-European Transport Network

Questions this practice may help answer

  • What do Member States have to do to implement the Directive?

Implementation Context

There is no uniform approach to the legal foundations of MSP. The MSP Directive establishing a framework for maritime spatial planning does not require specific pieces of new law on MSP to be adopted by the Member States. To the contrary, the Directive suggests that MSP can be implemented on a variety of legal bases, i.e. Member States „may include or build on existing national policies, regulations or mechanisms that have been or are being established before the entry into force of this Directive, provided they are in conformity with the requirements of this Directive” (DIRECTIVE 2014/89/EU). The approach of European countries varies with regard to the type of law backing MSP. For instance in Norway maritime plans were prepared without a legal basis. In Norway MSP is anchored in government reports to the parliament and in government declarations. In this country each sector (in particular shipping, fisheries and aquaculture, petroleum and energy) is managed separately through specific legislations and dedicated ministries. However, joint will of co-operating ministries and other involved stakeholders was sufficient to prepare the plans, and such plans (formally non-binding) resulted in moving Traffic Separation Schemes off the coast of  Norway which solution was accepted by the International Maritime Organisation. In Germany or in Lithuania MSP was based on existing pieces of law related to terrestrial spatial planning which were slightly amended. In Germany the national legal base is given by the general Spatial Planning Act („Raumordnungsgesetz“ / ROG), which was made applicable to the EEZ in 2004. MSP in Lithuania is included into the national legislation regulating spatial planning – the Law on Territorial Planning and its secondary legal acts. The revised Law on Territorial Planning was adopted on 27 June 2013. A different situation is in the neighbouring Latvia, which developed special MSP legislation. Regulation of the Cabinet of the Ministers No. 740 on Development, Implementation and Monitoring of Maritime Spatial Plan has been approved by the Latvian Government in 2012. The Regulation defines the content, elaboration procedure as well as implementation and monitoring procedures of MSP. Similar approach was taken by UK.

 

In Poland MSP is a part of maritime affairs. It is regulated by a legislative act on maritime activities i.e. the “Act on Sea Areas of Poland and Maritime Administration” of March 21st 1991. A new chapter on MSP containing two articles was added to this Act in 2003. In the legislation related to spatial planning there is only a delegation telling that sea space is planned under the aforesaid law on sea areas and maritime administration. With such approach there is a need to pay special attention to coordination between maritime and terrestrial spatial plans, since such coordination does not come per se, i.e. automatically. But this aspect is well covered in the Polish MSP law. Though Polish legislation on MSP was in place in 2003 but, due to its very general character it did not provide a sufficient basis for the development of maritime spatial plans of a legally binding nature. The work on preparation of such plans was started only in 2013. The law on MSP was consecutively amended. In the next section the original piece of law of 2003 is compared with the current one. Changes are commented and links to MSP Directive are underlined

Objectives

 In the MSP amendments introduced in 2003 into the “Act on Sea Areas of Poland and Maritime Administration” of March 21st 1991 the objectives of MSP  were not mentioned. This was heavily criticized. In effect arbitration between diverse ways of using the sea space had no axiological basis, since the state had not developed clearly defined priorities for sea space use. There was also no operational definition of the concept of spatial order at sea. The lack of priorities made it very difficult for the Polish authorities to define their interests and concerns, and decisions were made on a somewhat ad hoc, case by case, basis.  In the current text of the Act (after amendments of 2015) there are now clear indications about the key goals MSP should contribute to and ecosystem approach is mentioned as a key element of MSP. The ecosystem approach, is explained as follows: it /.../ “means that the management of human activities should satisfy the following conditions:

  • ·      the impact on the ecosystem of the planned human activity will be maintained at a level compatible with the achievement and maintenance of good environmental status;
  • ·      the ability for proper functioning of the ecosystem  and resilience to  environmental changes caused by human activity will be maintained;
  • at the same time long-term/durable and sustainable use of resources and ecosystem services by present and future generations will be enabled.”

A comparison of the MSP objectives and priorities in the amendments of the Act in 2003 and 2015 is provided in Table 1

Table 1. MSP priorities and objectives

In the Act of 2003                     

In the Act of 2015

Not specified

Three priorities have been highlighted:

1)achieving sustainable development of the sea area covered by the plan and neighbouring areas in  economic, social and environmental dimensions, including improvement of the environment and  resilience to climate change;2) ensuring national defence and security;
3) coordination between relevant actors and uses of the sea;

4) Proper consideration of land-sea interactions.

Source: Portal of Polish Legal Acts, http://isap.sejm.gov.pl/DetailsServlet?id=WDU19910320131

The adding of the axiological part to the Polish MSP law and explaining the essence of the ecosystem approach was partly based on experience gained through MSP pilot plans (link here), but mainly it should be directly attributed to the EU Directive requirements. In the Directive basic principles and goals of MSP are underlined and therefore a relevant cross-reference in national law is helpful.

MSP role

The role of maritime spatial plans was described in the earliest MSP articles of 2003. This has not been changed too much afterwards. Some new areas to be covered by MSP have been only added such as fishery, aquaculture, offshore renewable energy and exploration and extraction of minerals. Comparison of the stipulations regulating the role of MSP in the Acts of 2003 and 2015 is provided in Table 2. This part of the law was always considered important, necessary and sufficiently detailed. Additions should be seen rather as a result of MSP pilot plans executed in Poland  than a direct influence of the MSP Directive.

Table 2. Role of MSP

In the Act of 2003 In the Act of 2015

The Plan decides upon:

  1. the designation of internal sea waters, territorial sea and the EEZ;
  2. bans or limitations on the use of the above sea areas, taking account of the needs of nature conservation;
  3. the distribution of investments of public interest;
  4. directions of development of transport and technical infrastructure;
  5. areas and conditions for protection of environment and cultural heritage.

Point 1) was changed to; “the designation, including main functions of internal sea waters, territorial sea and EEZ”

 

In 5) fishery, aquaculture, renewable energy and exploration and extraction of minerals were added

Source: Portal of Polish Legal Acts, http://isap.sejm.gov.pl/DetailsServlet?id=WDU19910320131

Responsible authorities

Also authorities responsible for MSP were named in the earliest MSP law of 2003. The law of 2003 laid down that:

  • the organ adopting the plan(s) of spatial development of sea areas, be these internal sea waters, territorial sea or the EEZ is the Minister responsible for matters of construction, spatial management and housing, acting in agreement with Ministers responsible for maritime economy, fisheries, environment, internal affairs and national defence;
  • the way in which the plan is to be adopted – by means of a Regulation of the Minister responsible for matters of construction, spatial management and housing;
  • the organ responsible for developing the draft plan (the Director of the Maritime Office);

In the current law all these were kept intact with one important change. Polish sea areas are managed by the Minister responsible for matters of maritime economy, who, in the name of the State, acts as the owner of all Polish sea areas. Thus the minister responsible for terrestrial spatial planning has only a supportive role in MSP. Consequently,  maritime spatial plan(s) are adopted by ministerial order of the minister responsible for maritime economy who should act in co-operation with the minister responsible for regional development, and in consultation with the ministers in charge of agriculture, culture and national heritage, the environment, fisheries, internal affairs, transport, water management, and the Minister of National Defence. All these changes were introduced due to Polish specific reasons and are not related to the Directive. Perhaps only the addition of the minister responsible for cultural heritage as a co-operating partner in adopting maritime spatial plans can be attributed partially to the influence of the Directive.

Land sea relations

In the law of 2003 the influence of MSP plans on the terrestrial ones and vice versa was elaborated only in brief. The law stipulated that maritime spatial plans should be adopted after being agreed with coastal communities. Also the terrestrial plans (local, and regional) should be agreed with the Maritime Administration in their part covering the so called coastal belt (such belt is delimited by the Maritime Administration through a procedure defined by law, and is divided into the technical belt and adjacent protective belt). In practice that meant need for achieving consensus in both types of plans. However, it was not clear whether preparation of the maritime spatial plan would have any legal consequences for the existing terrestrial plans. This was changed latter on. In the new law a stipulation was added telling that the maritime spatial plan may include binding provisions for coastal  regional and local governments. Such provisions should be related to:

  1. public purpose investments of national importance defined in national strategies of development and programmes;
  2. protected areas;
  3. ways of use of sea areas, including restrictions and admissions.

Moreover the catalogue of terrestrial entities (besides the ministerial level) that should agree the draft maritime spatial plan was extended. The main weakness of the law of 2003 was removed by providing regional coastal governments with legal opportunity of agreeing the maritime spatial plans. The amended law requires that the draft plan should be agreed with:

  • Regional Directors of Environment Protection with respect to the influence of solutions of the plan on all aspects of nature conservation,
  • the authorities of relevant coastal municipalities with respect to the influence of plan solutions on the development and management of the technical belt, protective strip, ports and havens and the spatial development of the municipalities,
  • the Minister of Defence and ministers responsible for matters of national economy, fishery, environment, water management, internal affairs, tourism, communication, transport, culture and national heritage with respect to areas of their competence;
  • the regional authorities with respect of the distribution of public purpose investments of regional importance presented in the spatial management plan of the voivodship (region);
  • Directors of the National parks with respect to influence of plan solutions on objectives of the park;
  • Port authorities of ports of basic importance to national economy with respect to plan solutions which may influence the development of the ports.

Also a list of bodies which should issue opinion on the draft maritime spatial plan was added in the amendment of 2015. Issuing the opinion is therefore compulsory for these entities.

Comparison of the stipulations regulating the role of MSP with regard to sea-land relations in the Act of 2003 and 2015 is provided in Table 3. This part of law was amended mainly in result of experience acquired by the Polish Maritime Administration in the course of pilot plans and co-management of the coastal strip, but inspiration was also  taken from the EU Directive which requires that MSP ”should take into account land-sea interactions”.

Table 3. Role of MSP

In the Act of 2003 In the Act of 2015

All plans and projects related to the spatial development of internal sea waters and  territorial sea are approved by the maritime authorities in agreement with the competent coastal municipalities

 
/.../ studies of conditions and directions of spatial development of municipalities, local spatial plans and spatial development plans of the region, covering  the technical belt, protective belt and sea ports and havens, require agreement of the territorially competent Director of Maritime Office

The provisions of the Law of 2003 were not changed, but new stipulations were added.

 

The draft maritime spatial plan should obtain agreement of the following bodies and authorities:

“a) mayors of municipalities directly neighbouring the area of the plan  – in terms of the impact of provisions of the plan on the development of the technical belt, protective belt and sea ports and havens and spatial development of the municipalities,
b) regional director of environment protection - in terms of the provisions of the draft plan, which may affect the conservation objectives of a nature reserve, nature conservation of a landscape park and area of protected landscape as well as in terms of provisions of the draft plan, having significant negative impact on Natura 2000 areas/.../,
c) the Minister of National Defence and the ministers responsible for matters of economy, fisheries, environment, water management, internal affairs, tourism, communication, transport, culture and national heritage within  their areas of competence,
d) the Marshalls of voivodships (Head of regional government) - in terms of areas of  public investments of regional significance, established in the regional spatial plan,
e) the director of the national park in terms of the provisions of the draft plan, which may influence nature conservation in the national park /.../,
f) entities managing sea ports of basic importance to the national economy - in terms of the provisions of the draft plan which may influence the development of the ports.”

The following bodies and authorities should be asked for opinion on draft maritime spatial plan:

“a) the Regional Conservator of historical heritage - competent for areas covered by historical heritage protection and areas proposed to be covered by such protection.
b) The Director of the Regional Water Management Board, in terms of:
- impact of the plan on areas of significant flood hazard with the exception of the technical belt,
- adaptation of draft plan solutions to the conditions of use of waters of water region and catchment area,
- compliance with water management plans of river basin,
c) the minister responsible for health - in terms of protection zones of spas and spa protection areas,
d) the competent mining supervision authority – with respect to  mining areas and their management,
e) the authorities competent in the field of strategic environmental assessment /.../,
f) the President of the National Water Management Board - in terms of compliance with the national program for the protection of marine waters and the environmental objectives established for marine waters, /.../;”

Source: Portal of Polish Legal Acts, http://isap.sejm.gov.pl/DetailsServlet?id=WDU19910320131

Figure 1 presents the management regime of the land-sea interface in Poland.

Preparation of the maritime spatial plans

In its 2003 version, the Act of March 21st 1991 on Sea Areas of the Republic of Poland and the Maritime Administration laid down:

the requirement to carry out Strategic Environmental Assessment (SEA) as an integral part of the planning process;
the entities bearing the cost of plan drafting (either the central budget or the developer of a given development at sea);
the need for the Minister responsible for matters of construction, spatial management and housing to issue a Regulation setting out the required scope of the textual and graphic parts of the maritime spatial plans for internal sea waters, territorial sea and EEZ, with particular attention given to requirements as regarding planning materials, types of cartographic materials, applied designations, terminology, standards and ways of documenting the planning works.

These provisions were kept in the new amendment of 2015 with some changes. The Regulation setting out the required scope for the textual and graphic parts of the maritime spatial development plans, etc... should, under the changed law, be issued by the Minister responsible for matters of maritime economy and should respect appropriate BSR and EU guidelines. For inducing  these changes the impact of the Directive was important.

However the law of 2003 did not described the process of elaboration of the maritime spatial plans The procedures for the preparation, monitoring, assessment and updating the plans were left to the discretionary power of the Maritime Administration. This was perhaps one of the main reasons for the delay of actual preparation of formal maritime spatial plans in Poland.  Therefore, in the amended law these questions were comprehensively addressed. This also served to fulfil the requirements of the EU Directive concerning public participation, involvement of stakeholders and trans-boundary cooperation. Comparison of the stipulations regulating the procedural aspect of preparation of maritime spatial plans in the Act of 2003 and 2015 is provided in Table 4.

In the Act of 2003 In the Act of 2015
Lack of detailed regulations on elaboration of maritime spatial plans

Starting preparation of the draft plan, the territorially competent Director of Maritime Office:
1) shall make public an  information on:
a) the starting of the process of the drafting of the plan,
b) the possibility to submit comments and proposals to the draft plan,  indicating in the information the form, place and deadline for submission of the comments and proposals, not shorter than 60 days from the date when the information was made public;

Making information public should include inter alia, the following communication means: notice in the national press, posting on the information board and the inclusion in the Public Information Bulletin on the website of the responsible maritime office
2) notifies in writing (at the start of the preparation of the draft plan) institutions and competent authorities that are legally obliged to  agree or issue opinions on the draft plan;
3) considers the comments and proposals, referred to in point 1 b, decides on the manner of their inclusion in the draft plan and draws up a list of comments and requests made to the draft plan, which shows the comments and proposals with their description /.../, as well as general justification on how those comments were taken into account in the draft plan;
4) makes the said above list to the public and displays it in the Public Information Bulletin on the website of the Maritime Office until the end of the public perusal of the draft maritime spatial plan, and provides information to the public indicating the place where the  documentation is accessible to the public;
5) requests competent authorities to agree on the scope and level of detail of information required in the SEA /.../;
6) draws up the draft plan, in particular taking into account an alternative distribution of selected investments and explaining the reasons for the proposed distribution, the SEA for the draft plan;
7) requests opinions on the draft plan from the relevant authorities and organizations  (i.e. as prescribed in the  Polish MSP law)
8) obtains agreement of the draft plan from relevant authorities and organizations  (i.e. as prescribed in the  Polish MSP law)
9) informs the public, in the same way as described in p.1, at least 14 days earlier about the date and place of laying the draft plan and SEA for public perusal and about the possibility and deadline for submitting comments and proposals to the draft plan and its SEA, and collects these comments and proposals;
10) makes the draft plan and its SEA available for the public (displays it) for at least six weeks, and also makes them accessible in the Public Information Bulletin on the website of the maritime office and organizes in the third week  a public hearing on the solutions of the draft plan;
11) considers  comments and proposals received during public hearing, /../, and opinions received from authorities and bodies named under point 7, makes changes in the draft plan resulting from the SEA and from received opinions and agreements mentioned in p. 7 and 8;
12) repeats agreements as in point 8, to the extent necessary and develops a list of rejected comments and proposals, including the reasons for their rejection;
13) submits the draft plan to the minister responsible for regional development in order to obtain from him a statement of compliance of the plan with the objectives and guidelines laid down in the long-term development strategy of the country, the findings of the mid-term national development strategy and other development strategies, national spatial development concept and programs  defining the tasks the government /.../;
14) informs the General Director for Environmental Protection, if there is a possibility of significant transboundary impacts on the environment in result of realization of the plan /.../ and provide him  with the draft plan together with the SEA;
15) participates in proceedings on cross-border environmental impact, /.../;
16) may reapply for opinions and agreements referred to in points 7, 8 and 13, if this is necessary due to changes to the draft plan resulting from the cross-border proceedings;
17) submits the draft plan, together with the list referred to in point 12, and draft project summary  related to the SEA procedure/.../to the minister responsible for matters of maritime economy for its adoption /.../.

Lack of detailed regulations on cross-border co-operation

The minister responsible for matters of maritime economy is responsible for organizing cross-border cooperation in the field of spatial planning and development of Polish internal sea waters, territorial sea and EEZ.

 

The Council of Ministers may define, by regulation, the required scope and manner of cross-border consultations on maritime spatial plan, taking into account especially the recommendations concerning MSP adopted by the Helsinki Commission for the Protection of the Marine Environment of the Baltic Sea (HELCOM) and the relevant European Union entities/bodies/organs.

The minister responsible for matters of construction, spatial management and housing determines, by regulation, the required scope of maritime spatial plans of internal sea waters, territorial sea and EEZ in their textual and graphic parts, specifying in particular the requirements for planning materials, types of cartographic elaborations, designations, terminology and ways of documenting the planning work

The minister responsible for matters of maritime economy and the minister responsible for regional development in consultation with the minister responsible for fisheries and the minister responsible for the environment shall determine, by regulation, the required scope of the maritime spatial plans, in their  textual and graphic parts to be drawn up also in the form of databases, specifying in particular the requirements for planning materials, the type of cartographic elaborations, scale of cartographic elaborations, used designations, terminology, standards and ways of documenting the planning work, with a view to clarity and transparency of plans and respecting guidelines adopted by the Commission for the Protection of the Marine Environment of the Baltic Sea and the bodies of the European Union in  the field of maritime spatial planning.

The cost of preparing maritime spatial plan of internal sea waters, territorial sea and EEZ and the SEA should be financed from the budget of the state or by the investor who realizes investment, if the provisions of the plan are a direct consequence of this investment

The same provision is in the new law

An SEA should be carried out for the draft maritime spatial plan of internal sea waters, territorial sea and EEZ

The same provision is in the new law

 Source: Portal of Polish Legal Acts, http://isap.sejm.gov.pl/DetailsServlet?id=WDU19910320131

In its practical work Maritime Administration in Poland goes beyond the minimum legal requirements and for instance starts transboundary consultations at a  very early stage of draft plan preparation inviting representatives of authorities responsible for planning and management of sea areas from Baltic Sea coastal states to a first information and discussion meeting soon after the start of the Polish MSP process.

Monitoring and assessing maritime spatial plans

The law of 2003 did not describe the process of monitoring and assessing maritime spatial plans. The provisions regulating this issue were added in 2015. Now the Polish law on MSP stipulates that maritime spatial plans should be periodically evaluated at least every 10 years. Moreover the law gives detailed instruction who should do such an evaluation, in what format the results should be presented and in which case they should lead to the revision of the plan. This was added to fulfil the requirements of the Directive. Comparison of the stipulations regulating the assessment of maritime spatial plans in the Act of 2003 and 2015 is provided in Table 5.

Table 5. Assessment of maritime spatial plans

In the Act of 2003 In the Act of 2015
Not specified

1. The plan is periodically evaluated at least once every 10 years.

2. In order to assess the validity of the plan the territorially appropriate Director of Maritime Office asks the authorities,
stipulated in MSP law for information on the changes in the spatial development of the area covered by the plan and analyzes the changes in the area, including issued licenses, /.../

3. On that basis the Director of Maritime Office draws up a report on the state of spatial development of the sea area. The results of this assessment and the report are submitted to the ministers responsible for matters of maritime economy, water management, regional development, construction, local planning
and housing.

4. On the basis of the report referred to in paragraph. 3, the minister responsible for matters of maritime economy, shall decide on amending the plan and on the scope of the necessary changes.

5. If as a result of changes in the law it is necessary to change the plan, activities described above in the procedural sections should be performed accordingly to the extent necessary to make these changes. The procedure to change the plan should begin no later than 6 months from the date of entry into force of the amended
piece of law.

6. The change of the plan is carried out in the manner in which the plan was prepared and adopted

Source: Portal of Polish Legal Acts, http://isap.sejm.gov.pl/DetailsServlet?id=WDU19910320131

Results

Polish case of development of MSP laws show some features worth to be highlighted.

Gradual development allowed to make the changes and addition on the basis of growing and accumulated experience acquired in the framework of pilot plans. Thus Polish law is simple, handy and not overregulated, and  is in line with the MSP Directive.
MSP law reflects well Polish planning culture. For instance MSP law stipulates possibility of extra MSP documents and cooperation fora if they are deemed necessary by the Maritime Administration to prepare a draft maritime spatial plan. E.g. Maritime Administration may carry out analyses and studies and develop concepts and programs in order to develop maritime spatial  plans. This was proved a very important and valid stage in Polish MSP i.e. the preparation of a stock-taking report. Maritime Administration can also work with local governments and costal municipalities in order to ensure consistency of the maritime spatial plans with studies of conditions and directions of spatial development of municipalities, local land use plans and spatial plans of regions    
Polish MSP law pays also attention to land-sea linkages and seeks for balance between environmental and economic concerns.

However, there are still some weakness.

They concern first of all practical relations between maritime spatial plans (whether changes in one type of plan should result in immediate changes in other plans or they should be considered only during its regular revision or amendments). The same concerns some other types of plans affecting the sea space like Natura 2000 management plans. 2)
Another problem is the still insufficient stakeholder integration into MSP According to Polish law on MSP each stakeholder has a right to express an opinion in writing and the bodies preparing the plan should explain how they handle that opinion. However the problems are related to limited stakeholder capacity and balance of powers between stakeholders. Since, this issue can benefit from legal solutions only to limited extent the  networking and capacity building actions seem more promising.
There are also some problems with data sharing. Polish law on MSP stipulates that the minister responsible for matters of maritime economy is responsible for organizing the exchange of cross-border spatial data needed in the maritime spatial planning. Also at national level when preparing a stocktaking report the minister organised a process of collecting all MSP relevant data, data sharing and data adjustment to the needs of MSP. However it was a onetime process. More systematic approach to that is still welcome. New regulation concerning information sharing are required at large.  
Finally Polish law on MSP did not ask directly to plan sea space sparingly. Therefore it does not provide a direct incentive for multiple use. However, this can be done even without a legal obligation as good planning practice.

Naming all these problems and shortcomings one should admit that the existing legal base seems anyway more than sufficient for elaboration of maritime spatial plans.

Transferability

This practice is applicable in any country in which MSP should be conducted.

Contact Person

Andrzej Cieślak 
E-mail: pparso.ac@wp.pl

Katarzyna Krzywda
E-mail: katarzyna.krzywda@mgm.gov.pl

 

Jacek Zaucha
E-mail: jzaucha@im.gda.pl

Responsible Entity

Maritime Administration in Poland
 

Costs / Funding Source

National

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