New Technologies: New Technologies: Fish & Wildlife Permitting IssuesFish & Wildlife Permitting Issues

Cherise M. OramSTOEL RIVES LLPNWHA Annual Conference – February 20, 2008

Fish & Wildlife: Fish & Wildlife: Regulatory FrameworkRegulatory 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)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 22Catch 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 NeedsInformation 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?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, StudiesMonitoring, 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 ManagementAdaptive 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)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.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 forwardLooking 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!