New Technologies: Fish & Wildlife Permitting Issues Cherise M. OramSTOEL RIVES LLPNWHA 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.