Transcript Slide 1
New Technologies: Fish & Wildlife Permitting Issues Cherise M. Oram STOEL RIVES LLP NWHA Annual Conference – February 20, 2008 Fish & Wildlife: Regulatory Framework • State Fish and Wildlife Agency – FPA 10(j): recommendations for protecting fish and wildlife; crabbing & fishing? • State Water Quality Certification Agency – CWA 401 (if required): reasonable assurance project will meet water quality standards • State CZMA Consistency Certification Agency – CZMA 307 – certify consistent with state coastal zone management plan (includes protecting and conserving ecological and living marine resources) Regulatory Framework (cont’d) • NOAA Fisheries – ESA section 7 • no jeopardy • must minimize take – Essential Fish Habitat (Magnuson Act) • Recommendations to protect habitat of commercially harvested fish – Marine Mammal Protection Act • Incidental Harassment Authorization • Letter of Authorization • USFWS – ESA – Migratory Bird Treaty Act • Come to agreement on methods for avoiding/minimizing take • FERC – FPA equal consideration, public interest – NEPA – provide information on environmental impacts Catch 22 • Need data, but can’t get data! – Long term license – Pilot project – Off grid • Agencies (staff) struggling to figure out how to satisfy these authorities with little concrete information • What information do agencies and stakeholders want? Information Needs • Marine mammal impacts – Entanglement, migration, noise/vibration, haul out? • Sea birds – Collisions, nesting? • Installation – Alteration of sea bed? • • • • Effects to shoreline? EMF? Fishing, crabbing, recreation? Baseline studies for all of these and other elements. Solutions? • What level of information do agencies need? – Doesn’t need to be perfect • Agencies should: – – – – Use information available Information generated at site or elsewhere Rely on general biological principles Use analogous information • Sea lion haul out info from other sites • Noise from other sources • Sea bed alteration from platforms • Use best professional judgment, document information and thinking Monitoring, Studies • Obligation to monitor, study – Fish and wildlife authorities will impose conditions to monitor – FERC licensing process requires studies • Can be completed post-licensing if appropriate – As in traditional hydro, avoid protracted litigation by building stakeholder consensus on monitoring, studies • Particularly key for new technology Adaptive Management • Use to manage results of monitoring, studies • Use to decide on changes that may be necessary to meet existing regulatory authorities • Recommend consensus-based approach with dispute resolution – If no resolution, stakeholders use existing authorities, can petition FERC Adaptive Management (cont’d) • This approach – Does not provide same long-term certainty sought by licensees in traditional hydro settlements – Gets projects in the water – Neither developer or agencies are “giving up” anything • Agencies have no more or less authority • Developers are not guaranteeing they’ll agree to changes in the future (preserve right to challenge) – Fosters communication, attempt to work together before moving to other options – Key: gets projects in water, allows generation, development of more information. Memorializing Adpt. Mgt. • Can use settlement or MOA • Does not require signed agreement – Adopt through license application • Contract ensures applicant’s effort will result in support from agencies, stakeholders • Process of coming to agreement ensures expectations are understood Looking forward • As we learn more about impacts or lack thereof: – Can be more prescriptive – Rely less on adaptive management – Insist on more certainty for developers regarding long-term PM&Es Thank you!