The Bahamas Country Profile
Legislative and institutional framework governing the protection of coral reefs

Contents:
(1) Overview of legislation and institutions
  –  Enforcement of environmental legislation
(2) Designation of marine protected areas (MPAs)
(3) Laws providing explicit protections for coral and other marine life
  –  Table of restricted and prohibited activities
  –  Provisions for research and nongovernmental restoration projects
  –  Enforcement of explicit provisions protecting coral reefs
(4) Coastal zone development and environmental impact assessment (EIA)
  –  Enforcement of coastal zone development and EIA requirements
(5) Other legislation: land-based and marine pollution
(6) Multilateral Environmental Agreements

1. Overview of legislative framework for environmental protection
On the 17th of January 2020, The Bahamas adopted its first comprehensive environmental law: the Environment Planning and Protection Act (No. 40 of 2019). The Act ("EPPA") establishes a general duty to protect the environment and consolidates most functions relating to natural resource conservation, pollution control, and environmental development planning (including the environmental impact assessment) under a single governance framework. In addition, the EPPA created a new administrative body—the Department of Environmental Planning and Protection (DEPP) an agency under the Ministry of Environment and Housing.¹ DEPP will replace the Bahamas Environment, Science and Technology (BEST) Commission, a body that previously served as an advisory division of the Ministry of the Environment and Housing.²

The functions that Department of Environmental Planning and Protection will assume are outlined in Section 6(1)-(2)(a)-(v) of the EPPA. In collaboration with other relevant agencies and stakeholders, DEPP's initial tasks include, inter alia, developing high-level policies, programs, strategies, and action plans for environmental conservation; formulating a management plan for closed and environmentally sensitive areas; and establishing a protocol for public consultation and disseminating environmental information to the public.³

Mandate for a new National Environmental Policy Framework
With respect to policy development, § 15 of the EPPA calls for the Director of DEPP to collaborate with other relevant authorities in preparing—as soon as practicable—a National Environmental Policy Framework.⁴ The EPPA mandates that the elements of the Framework must include a National Beach and Coastal Area Protection and Management Plan, as well as a National Coral Reef Conservation Plan.⁵ Indirect measures to protect reefs through the regulation of fisheries, coastal development, and the control of land- and marine-based pollutants are implemented through the environmental impact assessment process and mandated through the Environmental Health Services Act (Cap. 232) and a number of other laws (see Sections 4 and 5 below).

Many environmental oversight and stewardship functions are carried out by the Bahamas National Trust (the "Trust"), a unique government body that is administered by a 29-member council made up of appointed representatives from highly-recognized conservation and scientific organizations from around the world and from the Bahamian government.⁶ Established under the Bahamas National Trust Act (BNTA), the Trust has a mandate to maintain and manage lands, buildings, and "submarine areas as marine life sanctuaries" in order to implement the Trust's mission of preserving these assets for the benefit and enjoyment of the Bahamas.⁷ Among other functions, the Trust manages the country's National Parks, issues marine park use permits and collects fees, and establishes by-laws for their protection, advises the government on conservation matters, conducts conservation research, and performs educational outreach.

Enforcement of environmental legislation

Enforcement of the EPPA
The EPPA designates Environmental Officers as the authorities that perform enforcement functions with respect to assuring compliance with any of the Act's provisions.⁸ Section 43 establishes a general power of entry and inspection, authorizing environmental officers to enter premises "at all reasonable times" for the purpose of the following:⁹

1. Ascertaining whether any violation of the EPPA or its regulations have occurred, by searching the premises and removing evidence;
2. Ascertaining whether circumstances exist that would authorize or require the EPPA Director to take action (to impose sanctions or otherwise prosecute the violation);
3. Taking or performing any other actions or functions authorized by the EPPA or its Director;
4. Generally examining and inspecting the premises.¹⁰

No reasonable suspicion or warrant requirement is required under the EPPA prior to searches, but Environmental Officers must produce the documents substantiating their authority before entering and searching premises.¹¹ In addition to the powers of entry and search in the list above, environmental officers may call upon "any police officer to lend such assistance" when needed and police officers must provide the requested assistance.¹² In addition to the foregoing powers, environmental officers are also authorized to enter any "land or premises" (includes marine areas covered by water) to monitor the effects of any activity upon the environment.¹³

Enforcement of the EPPA and Bahamas National Trust by-laws
The Trust may only enforce rules protecting marine life contained in its by-laws and in areas under its jurisdiction. In order to provide for enforcement of Bahamas National Trust by-laws, the BNTA authorizes the Trust to appoint officers or wardens for the protection of the Trust property.¹⁴ A Trust officer or warden may be a paid employee or volunteer and is empowered with the same authority as a constable.¹⁵

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2. Designation of marine protected areas (MPAs)

Background
Like many other Caribbean countries, legislative and institutional systems that specifically address the protection of coral reefs are heavily focused on reefs lying within marine protected areas (MPAs). The Bahamas National Protected Area System (BNPAS) currently protects over 10% of the country's coastal and marine environment.¹⁶ In The Bahamas, existing MPAs consist of National Parks that contain marine areas and the gradual expansion of a network of other MPAs that have been established by ministerial order.

Designation of protected areas prior to the EPPA
Under Section 12 of the Fisheries Resources Act, the Minister (currently the of Minister of Agriculture and Marine Resources) was previously designated as the authority to declare any area (water and adjacent land) within The Bahamas' exclusive fishery zone as a marine protected area.¹⁷ Each MPA has received its status through the issuance of a Declaration of Protected Area, which prescribes the site-specific restrictions applicable to that MPA.¹⁸

In 2008, The Bahamas made a formal commitment to the Caribbean Challenge Initiative (CCI) to preserve at least 20% of the country's near-shore marine resources by 2020.¹⁹ Two categories of MPA were proposed under The Bahama's plan for fulfilling its commitments under the Caribbean Challenge Initiative: Multiple-use Marine Managed Areas (Environmentally Sensitive Areas) and Highly Protected Areas (Closed Areas).²⁰ Under the proposal, MPAs could be subdivided into zones in which separate uses and restrictions apply, such as fishing, recreation, and no-take zones. The two MPA categories have now been formally established through the EPPA and serve the purposes described in (a) and (b) below.

Designation of protected areas (and species) under the EPPA
Section 23 of the EPPA establishes new procedures by which the Minister (of Environment and Housing) may assign protected status to environmentally sensitive areas and species through ministerial orders in order to "achieve the objects" of the new law. The Minister may designate any area of land within The Bahamas, with land being defined as "surface land, the seabed and other land covered by water and all subsoils found therein, or any combination or part thereof."²¹

Each ministerial order must include a comprehensive description of the area or species to be designated, the justifications for the designation, and the specific limitations that apply to the use of the area or activities conducted within it.²² Each designation of an environmentally sensitive area (or species) may allow the prudent use of such area or species as well as appropriate mitigation measures, however it may not allow any type of use that was not previously permitted under earlier laws and regulations and must not impose restrictions beyond limiting specific uses or activities.²³

a. Designation of Multiple-use MPAs (Environmentally Sensitive Areas)
Multiple-use MPAs allow a range of uses while protecting areas that are environmentally sensitive, using separately defined zones to accomplish a variety of conservation or recreation purposes. These purposes include, inter alia, areas open to fishing, fishery replenishment areas, and recreational zones. In addition, restrictions in each zone may vary according to the types of fishing gear permitted and the timing of seasonal closures.

b. Designation of Highly Protected Areas (Closed Areas)
The EPPA authorizes the Minister to designate some areas within or outside of environmentally sensitive areas to be completely closed to any use or entry by humans "if he considers it necessary for the survival of any biological resource, genetic material, ecosystem or endangered species located in such area."²⁴ Similar to orders designating multi-use environmentally sensitive areas, these orders must include (a) a comprehensive description of the area to be designated, (b) the justification for the designation, and (c) the specific limitations that apply to activities in the closed area or the biological resource, genetic material, ecosystem or endangered species which are needed.²⁵

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3. Laws providing explicit protections for coral and other marine life
The EPPA establishes some of the most explicit legislative provisions among Caribbean countries regarding liability for human actions that harm coral reefs. Section 20 of the EPPA states that any person who "directly or indirectly, cuts, carves, injures, mutilates, removes, displaces or breaks any underwater coral or plant growth or formation in the waters of The Bahamas commits an offence."²⁶ In addition, it prescribes mandatory procedures for boat owners who ground their vessels, strike, or otherwise damage a coral reef, stating that they must:

1. as soon as is reasonably practicable, notify the Director of such occurrence;
2. within such time as the Director shall direct, remove or cause the removal of a grounded or anchored vessel; and
3. cooperate with the Director to undertake damage assessment and restoration of the coral reef.²⁷

If a boat that has run aground on or has damaged coral remains on the site of the accident (grounded or anchored) and the Director of DEPP has issues instructions to the boat owner for its removal, the owner of the vessel must remove or have the vessel or anchor removed in a manner that does not cause further damage to the coral reef.²⁸

Within The Bahamas' marine protected areas, it is illegal for any person to catch, take, or harvest any "fishery resource" without a permit or other official authorization.²⁹ As defined in Section 2(1) of the BNTA, the term fishery resource includes not only fish, but also corals and many other forms of marine life ("living organisms belonging to sedentary species, that is to say, organisms which ... either are immobile or under the seabed or are unable to move except in constant physical contact with the seabed."). In addition, the Minister of Agriculture and Marine Resources has authority to declare "any species of living organism" to be a fisheries resource.³⁰

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Abbreviations used above: EPPA = Environmental Planning and Protection Act; BNTA = Bahamas National Trust Act; FRA = Fisheries Resources (Jurisdiction and Conservation) Act (CH. 244); FRR = Fisheries Resources (Jurisdiction and Conservation) Regulations; ESL = Endangered Species (Trade And Transport) Law, 2004 (2017 Revision).

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Legal requirements for research and nongovernmental restoration projects
The Any party wishing to conduct scientific or academic research on coral reefs in the Bahamas must apply to the Department of Environmental Planning & Protection (DEPP).³¹ DEPP evaluates research permit applications for scientific investigations involving or affecting natural resources within The Bahamas. In addition, the Fisheries Resources Act and its regulation impose a research authorization requirement, providing that that operators of foreign vessels may not undertake research or scientific projects in Bahamian waters except with the express authorization of the Minister and in accordance with the terms and conditions of the permit granted to the person operating the vessel. ³²

Enforcement of explicit provisions protecting coral reefs
In addition to the generalized enforcement powers provided under the EPPA for environmental violations, the Fisheries Resources Act ("FRA") establishes similar powers for Fisheries Inspectors. Under the FRA, a fisheries inspector may stop and board vessels, arrest any person, and seize any items found on board (including the vessels themselves) without a warrant if s/he has "reasonable grounds" to believe that a violation of the Act has been committed.³³ This enforcement power applies both in connection with vessels within protected areas and those anywhere else in the territorial waters of the Bahamas. The provisions of the Fisheries Act also establish a rebuttable presumption that any fish found on board were taken by illegal means, that the captain and each crew member were involved, and—if the vessel is within a protected area—that any prohibited fishery resource was collected in that area.³⁴

Sanctions for damaging coral reefs
Under the EPPA, a variety of sanctions and other remedies may be imposed by DEPP in the case its provisions are violated and/or persons cause environmental harm. With respect to coral reefs, any person who is summarily convicted of directly or indirectly cutting, injuring, removing, breaking off, or otherwise harming a live or dead coral formation is liable for a fine of up to 10,000 Bahamian Dollars and/or up to three years imprisonment.³⁵ Upon conviction by information (indictment), these penalties are increased to 50,000 Dollars and/or up to five years imprisonment.³⁶

In addition to being liable for criminal penalties, persons who harm coral reefs are liable for the government costs of responding to reef damage events and for the costs of restoring or mitigating the damage caused.³⁷ The EPPA Director has discretion to recover compensation from the vessel owner, including compensation for:³⁸

1. the cost of replacing, restoring, or acquiring the equivalent of the coral reef damaged, or where the coral reef cannot be replaced or restored, the value of the coral reef; and
2. the value of the loss of use and services of the coral reef;
3. the costs of damage assessments;
4. the costs of activities undertaken to minimize or prevent further damage to the coral reef;
5. the reasonable cost of monitoring the damaged, restored or replaced coral reef for at least 10 years.

In calculating the compensation for damage to a coral reef, DEPP may use habitat equivalency analysis, a methodology used to determine compensation for injuries to natural resources.³⁹

A variety of mandatory and discretionary sanctions are also established under the Fisheries Resources Act, which are applicable according to the seriousness of the violation. Any boat seized due to the prohibited removal of marine life or other offenses may be subject to forfeiture or a lien in favor of the government, pending the payment of a fine.⁴⁰ Any person who is convicted of illegally removing marine life from a protected area is liable for a fine of $750 Bahamian Dollars and/or imprisonment of six months.⁴¹ A person convicted of most repeat violations is liable for double fines and/or prison sentence.⁴² Under the more recent (2008) Fisheries Regulations, a person committing a violation is liable for a default fine of $3,000 Bahamian dollars and/or a one-year prison sentence, except where penalties are defined elsewhere in the Regulations for specific offense.⁴³

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4. Coastal zone development and environmental impact assessment (EIA)
In The Bahamas, the control and prevention of pollution (including erosion) resulting from coastal zone development activities is largely accomplished through the environmental impact assessment process, but is supplemented by other mechanisms, such as building codes, zoning ordinances, and beach alteration permits. Until the enactment of the EPPA, the administration of the EIA process for large industrial, commercial, and infrastructure projects was performed by the BEST Commission (now replaced by the Department of Environmental Planning and Protection (DEPP)). DEPP is responsible for determining whether an EIA is required for a proposed project or activity that poses a significant risk of adverse environmental impacts.

The newly-enacted EPPA provides that "no person shall commence work on any project" unless that person or project (a) has been issued a a certificate of environmental clearance or "CEC" (environmental license to undertake an activity) or (b) the project has been exempted from the CEC requirement.⁴⁴ It is not known if DEPP has adopted a standard set of screening guidelines for determining whether a proposed project or type of activity will be subject to a mandatory EIA process, but DEPP provides an Application for Preliminary review of proposed projects for developers submitting proposals.⁴⁵ Going forward, DEPP will be responsible for reviewing EIA studies and environmental management plans (EMPs) for coastal development projects as well as managing the implementation of multilateral environmental agreements (MEAs). In addition, DEPP now evaluates the environmental aspects of government infrastructure projects and serves in an advisory capacity regarding the environment and environmental planning and protection. DEPP will also be responsible for developing and proposing environmental and natural resource management policies for the government of the Bahamas.⁴⁶

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Enforcement of coastal zone development and EIA requirements
The power of entry and inspection described in "Enforcement of the EPPA" in Section 1 of this report also applies to DEPP-appointed inspectors who monitor compliance with CEC requirements. In addition, the EPPA directs the Director of DEPP to monitor "the operation of any industry, project or activity with a view of determining its immediate and long-term effects on the environment."⁴⁷

In cases where DEPP determines that any person—including the holder of a CEC—has committed a violation, the Director (through his staff) must have a written notice of violation served on that person.⁴⁸ The notice specifies that actions that the noncompliant party must take to remedy the problem and also invites the recipient to provide a response to DEPP concerning the matters detailed in the notice.⁴⁹

If the party that has been served with a notice of violation does not respond to DEPP or fails to take the specified remedial actions within the time period allowed, DEPP's Director may issue an administrative order which must specify the details of any violation of the EPPA or its regulations and may direct the recipient to:⁵⁰

1. Immediately cease and desist from the violation or specify a date for coming into compliance;
2. Immediately remedy any environmental conditions or damages resulting from the violation or specify a date for the completion of remedial action;
3. Undertake an investigation regarding any environmental circumstances within that person's responsibility or control, including any release of a pollutant or hazardous substance into the environment;
4. Perform monitoring or record-keeping activities;
5. Comply with any other requirement under the EPPA or its regulations.

The administrative order may also include a proposed administrative civil assessment made by the Director. Similar to the remedies provided in cases of coral reef damage, the EPPA provides procedures for DEPP to recover the costs of responding to other environmental violations. Section 49 (Administrative Civil Assessments) provides that the Director may make an administrative civil assessment of:⁵¹

1. Compensation for DEPP's actual costs of responding to environmental conditions arising from the violation;
2. Compensation for DEPP's actual costs of responding to a spill or accidental release of a pollutant;
3. Compensation that a person served with an environmental restoration order must pay to another person whose environment, property or livelihood has been adversely affected by the offender's actions;
4. Compensation for costs incurred by DEPP, another government entity, or private person if the recipient of an environmental restoration fails to comply with its terms and conditions;
5. Damages for losses suffered by a third party.

Finally, Section 50 of the EPPA authorizes the Director of DEPP to pursue court remedies if he or she reasonably believes a person is committing a violation that is likely to cause continuing or future environmental damage. Remedies may include seeking a restraining order or other injunctive or equitable relief, seeking an order for the closure of any facility, prohibiting a process or the use of certain equipment, or any other legal remedies which may be provided by law. Private parties also have a right to seek remedies in court if they have a "specific interest in the claimed violation of the Act or ... who can satisfy the court that the proceedings are justifiable in the public interest.⁵²

Sanctions in the context of coastal zone development activities
The EPPA also prescribes penalties for developers and project proponents who violate the environmental terms and conditions to which they commit as a basis for obtaining approval for a certificate of environmental clearance. As defined in Section 2, these refer to "the set of requirements, consisting of environmental mitigation and management measures, including monitoring requirements, which the Department establishes as part of the terms of the CEC." In addition, Section 11(2) states that anyone who commences a project without first obtaining a CEC (if one is required) is liable for a fine of up to $5,000 dollars and/or up to one year imprisonment (upon summary conviction) or up to $10,000 and/or three years imprisonment if convicted on information (following an indictment and formal trial).

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5. Other legislation: land-based and marine pollution
A number of other pieces of legislation address important sources of pollutants from activities not described above. These include the following:

• Environmental Health Services Act (Cap. 232) and Environmental Health Services (Collection and Disposal of Waste) Regulations, 2004 (Cap. 232, as amended in 2013).
• The Bahamas Maritime Authority Act, 1995 (Cap. 283).²⁸
• Merchant Shipping (Oil Pollution) Act, 1976 (Cap. 275) and Merchant Shipping (Oil Pollution) (Amendment) Act, 2001 (No. 11 of 2001).
• Petroleum (Offshore Environmental Protection and Pollution Control) Regulations, 2016 (S.I. No. 39 of 2016).
• Water and Sewerage Corporation Act (Cap. 196)(1973).
• Out Islands Utilities Act (Cap. 28) (1965; amended in 1987).

6. Multilateral Environmental Agreements (MEAs) to which The Bahamas is a signatory

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Endnotes

1. Government of the Bahamas (July 27, 2020), Press release: Establishment of the Department of Environmental Planning and Protection, Available at https://www.bahamas.gov.bs/.

2. The BEST Commission was formed by a directive from the Chief of State in 1994.

3. Environmental Planning and Protection Act of 2019 (EPPA), § 6(2)(a)–(c) and (i).

4. EPPA, § 15(1).

5. EPPA, § 15(3)(f) and (h).

6. The Bahamas National Trust (BNT) was established in 1959 through the enactment of the Bahamas National Trust Act (BNTA) (amended in 2010). Section 10 of the BNTA calls for representatives from, (em>inter alia, the Rosenthal School of Marine and Atmospheric Science, the Wildlife Conservation Society, the Audubon Society, the Smithsonian Institute , and the University of Florida.

7. Sections 4(1) and (2) of the BNTA states the purpose of the BNT is to promote the permanent preservation of "lands and tenements (including buildings) and submarine areas of beauty or natural or historic interest...for the preservation (so far as practicable) of their natural aspect, features, and animal, plant and marine life." [Emphasis added]; The BNT may own land and solicit donations from the public to carry out its mandate.

8. EPPA, §§ 9 and 43.

9. The word "premises" is not defined in the EPPA, but is presumed in this report to include boats, vehicles, and other means of transport in addition to dwellings and other terrestrial properties.

10. EPPA, § 43(1)(a)–(e).

11. EPPA, § 43(2).

12. EPPA, § 43(4).

13. EPPA, § 45(2).

14. Bahamas National Trust Act, § 12(3).

15. Bahamas National Trust Act (BNTA) (as amended in 2010), § 25.

16. Bahamas National Trust (September 2018), Marine Protection Plan for expanding The Bahamas Marine Protected Areas Network to meet The Bahamas 2020 declaration, 8 Available at https://marineplanning.org/wp-content/uploads/2019/07/Bahamas-Protected_-20-by-20-Marine-Protection-Plan_Full-Report_Sept2018.pdf; 11 million acres were added in 2015.

17. Fisheries Resources (Jurisdiction and Conservation) § 12, as amended (most recently in 2020).

18. Fisheries Resources (Jurisdiction and Conservation) Act, CH. 244, §§ 13 and 14.

19. The Bahamas National Trust (September 2018), Marine Protection Plan for expanding The Bahamas Marine Protected Areas Network to meet The Bahamas 2020 declaration, 6, http://bahamasprotected.com/wp-content/uploads/2018/02/Bahamas-Protected-Marine-Protection-Plan-Exec.-Summary.pdf.

20. The Bahamas National Trust (2018, Revised March 2019), Marine Protected Area Management Guidance Document: A Guide for Policy-Makers & Protected Area Managers, 10 https://marineplanning.org/wp-content/uploads/2019/07/Bahamas-Protected_MPA-Management-Guidance_Final-Report_rev.March2019.pdf.

21. EPPA, § 2 (Interpretation).

22. EPPA, § 23(2).

23. Id.

24. EPPA, § 24(1) and (3).

25. EPPA, § 24(2).

26. EPPA, § 20(1).

27. EPPA, § 20(2).

28. EPPA, § 20(3).

29. Fisheries Resources (Jurisdiction and Conservation) Act, CH. 244, § 20 (2001); Fisheries Resources (Jurisdiction and Conservation) Regulations, Part XV, § 69 (a) & (b) (2008).

30. Fisheries Resources (Jurisdiction and Conservation) Act, CH. 244 (2001), § 2(2).

31. EPPA, § 41.]

32. Fisheries Resources (Jurisdiction and Conservation) Act, § 7(c); FRR § 62.]

33. Fisheries Resources (Jurisdiction and Conservation) Act, § 14.

34. Fisheries Resources (Jurisdiction and Conservation) Act, §§ 20 and 22(2)(c); Fisheries Resources (Jurisdiction and Conservation) Regulations (2008), Part XV, § 69 (a)–(c).

35. EPPA, § 20(a).

36. EPPA, § 20(b).

37. EPPA, § 20(3)-(5)

38. EPPA, § 20(4)(a)–(e).

39. EPPA, § 20(5); "habitat equivalency analysis" is defined in § 2 (Interpretation).

40. Fisheries Resources (Jurisdiction and Conservation) Act, § 16(3).

41. Fisheries Resources (Jurisdiction and Conservation) Act, § 24(3).

42. Fisheries Resources (Jurisdiction and Conservation) Act, § 23.

43. Fisheries Resources (Jurisdiction and Conservation) Regulations (2008), Part XV, § 68(2).

44. EPPA, § 11. Part (a) of § 11 states that the certificate of environmental clearance must be issued "in accordance with prescribed regulations upon the approval of an Environmental Impact Statement or Environmental Impact Assessment." Section 2 of the EPPA (definitions) differentiates between these two types of documents, consistently with international practice, whereby "Environmental Impact Assessment" refers to a comprehensive study that not only identifies "the likely impacts of a proposed activity on the environment," but also evaluates alternatives to the activity and proposes steps to avoid, minimize, or mitigate them. Notably, the EPPA also specifies that climate related impacts must be considered. Alternatively, Section 2 defines Environmental Impact Statement as a document that merely outlines the effects for proposed activities on the environment—a less rigorous requirement for projects that do not pose significant environmental risks.

45. Department of Environmental Planning and Protection, Application for Preliminary review of proposed projects, https://www.depp.gov.bs/eia-emp/.

46. See generally, Department of Environmental Planning and Protection (website), https://www.depp.gov.bs/.

47. EPPA, § 45(b).

48. EPPA, § 47(1)(a).

49. EPPA, § 47(1)(b).

50. EPPA, § 48.

51. EPPA, § 49(1)(a)–(e).

52. EPPA, § 51(2)(1).

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