Editor’s note: Anne Hawkins is an associate with the law firm Kelley Drye & Warren, LLP (Kelley Drye). Kelley Drye is currently representing a coalition of Atlantic fishing communities, associations, and businesses in a lawsuit against the US Department of Interior to block the lease of the New York Wind Energy Area to Statoil Wind of Norway on the grounds that the US Bureau of Ocean Energy Management (BOEM) did not adequately consider the impact of wind power development in the area on the region's fishery resources. Ms. Hawkins' practice at Kelley Drye focuses on fisheries, natural resources, environmental, and administrative law. Prior to joining Kelley Drye, she served as deputy director of Large Marine Ecosystems Programs at NOAA and an analyst at the New England Fishery Management Council. She can be contacted at AHawkins@KelleyDrye.com. The two new US ocean plans, for the Northeast and the Mid-Atlantic, were finalized in December 2016.
MEAM: The US now has two fully-approved regional ocean plans – for the Northeast and the Mid-Atlantic. To what extent do you see federal agencies, states, marine industries, and other stakeholders utilizing these plans to evaluate and site potential ocean uses?
Hawkins: We have already seen several examples of agencies using the regional ocean data portals, although not necessarily in the manner envisioned in the ocean plans. The data portals were specifically designed to be a first stop for developers of new ocean use projects to begin to identify existing uses in specific areas, so that they may determine optimal locations for development and perform outreach to potentially affected parties. To that end, the Mid-Atlantic Ocean Action Plan (OAP) states that all Regional Planning Board member entities “should use the Data Portal as an important, but non-exclusive, source of information to help identify potential conflicts, impacts, and potentially affected stakeholders.… Accordingly, the Data Portal serves as a common data vocabulary or starting point for conversations between ocean resource managers and the applicants and stakeholders with whom they interact.”
It was therefore disheartening to see that, in the final draft of its Environmental Assessment for wind energy lease issuance in an area of the New York Bight that is heavily relied upon by several fisheries, the Bureau of Ocean Energy Management (BOEM) used the Data Portal to justify its already-completed analysis of fisheries uses in the area. Moreover, BOEM referred to the Data Portal as the “best available science.” The Data Portal is not a complete repository of all ocean use information. For example, it includes only one year of squid fishery data for the entire Mid-Atlantic and no maps of scallop rotational management areas. Its utility as an analytical tool is therefore limited. Specific to ocean energy, the OAP states that the portal is intended as a tool “to assist in identifying the relevant species or locations that may require further information.” It is incumbent upon each agency to gather and use such further information in its siting decisions for new uses.
As for the interagency agreements on early consultation, we have not yet seen any measurable change in approach since the adoption of the regional ocean plans.
MEAM: Can you describe some specific examples of the plans being used or ignored including potential/likely consequences of the plans being used/ignored?
Hawkins: BOEM’s unsolicited bid process, which has led to extreme conflict among existing and potential new ocean resource uses, is one glaring example of ignorance of the portions of the plans regarding enhanced coordination. Under that process, BOEM allows interested developers to submit an application for a wind energy lease in any offshore area of their choosing. The application is then fast-tracked, and conflicts with existing stakeholders that would result from wind energy facility construction in those areas are only considered years later – right before construction is due to occur. Despite BOEM’s stated commitment to the early consultation provisions of the regional ocean plans, it has also remained committed to allowing these unsolicited bids to persist since the plans’ adoption, including in new areas off of Long Island and Rhode Island. Such unilateral decision making on the part of one agency exacerbates conflict, increases distrust, and ultimately delays decision making.
MEAM: Do you have any suggestions for any of the relevant stakeholders for maximizing the likelihood of these new ocean plans being used for their intended purposes of minimizing ocean use conflicts, streamlining decision making, and promoting healthy ocean and coastal ecosystems?
Hawkins: By law, existing ocean users have rights to traditional activities that new developers should understand and endeavor to preserve. Project proponents must commit to engaging in open dialogues with all potentially affected parties (federal agencies, states, and the public) at the earliest possible stages of project design in order to grasp the nature and extent of these existing activities. The use of federal-state-public task forces to make siting decisions is one important component of avoiding and deescalating conflict. As we have seen with the successes of the regional fishery management councils, decisions that are science-based and developed in transparent, collaborative fora have the greatest potential to result in healthy oceans and marine economies.