Sep 26, 2010

Maine Offshore Wind: what Tilberg, USCG, EPA & two state reps asked at the 9/14/10 meeting

The following question and answer session took place 9/14/10  after a presentation by Algene Byrum, Environmental Protection Specialist  for the Renewable Energy Division of  BOEMRE, the Bureau of Ocean Energy Management, Regulation and Enforcement. Listen to this Q&A session HERE
 Byrum's presentation explained  how the agency proposes to combine preparation of Site Assessment Plans and Construction Operation Plans, when considering the environment off the Maine coast where ocean windmills could be sited. Questions are answered by Byrum and by Maureen Bornholdt, BOEMRE's Renewable Energy chief.

GEORGE LAPOINTE, DMR: How do you deal with bats or resident wildlife species that don't fit under migratory birds? Or the MMA  (Call them marine mammals when they're flying over the ocean.

BYRUM. Certainly that would be monitored and that effort would be  processed by  our avian biologist who would coordinate with our NEPA process. 

KARIN TILBERG, GOVERNOR'S REP  Is BOEMRE going to be in charge of the EIS?   Will you  do the scoping sessions and the hearings and publish the draft and then final?


TILBERG.  Let's say that there's an unsolicited bid that comes in, and you publish. and you determine no competitive interest  Then a SAP comes in, A Siite Assessment Plan,  and you determine that there should be an NEPA review of that, that would be fe comes under the definiteand there should be an EIS?


TILBERG  Would you take the data that the applicant has submitted and share it with all those federal and state agencies? How do you start?  What happens when that you get the data and then how do  you have all of those federal state agencies look at it to form the actual EIS?

BORNHOLDT   We have a lot of tools available to us. One under NEPA  that we can do and have done in our oil and gas program and sand and gravel programs that actually helped are  cooperating agency agreements.
Let's say the avian data.  Yes, we have an avian biologist on staff.  But we know it would be better that if we had a cooperating agency bureau like Fish and Wild life Service, to help us do the analytics associated with evaluating the impact of that particular project to that particular species at hand.

So we have cooperating agency groups. We can work with other agencies to have a formal working relationship and understanding that's something we can do. We do it with  Coast Guard and Corps of Engineers .

The other tool that  we have,  the one we haven't used yet, is the folks around the table. This task force in helping to share the information we have  or that we get from an applicant.

As your example offers, Karen, we were hoping that when we come in with our site assessment plans, we share that plan with the task force, so they can understand what will be evaluated, what the applicant is proposing, as well as any other data that they filed.  We do have that requirement in our Subpart F group plans - that they give us  any kind of information that they have, that we will share that.

Also too when hopefully before we get an unsolicited proposal, we have resources around the table, whether it is the fish and wildlife service at the federal level or your state DNR that has data with regard to ducks and other fowl and avians, fish and wildlife of interest, whether its recreational hunting use or protection issue.

We have the folks around the table who have that data. That can help inform the analysis with regard to the scenarios for the proposed actions.

 So we have all these tools: formal under NEPA - I know that Tim Timmerman can speak to this more eloquently than either Algene or I.

We have the cooperating agency groups, where  you have a formal agreement to have the other federal entity do some work with you on a particular timeframe, particularly  when they're the subject matter expert.  

The other tool that we have is what we have around the table, this collective of knowledge skill sets and data that we can bring in front of the system.

STATE REPRESENTATIVE BRUCE MACDONALD . What's confusing to a person like me is looking at all these agencies who are involved.  What standing do their findings have in the final analysis?  Would a Coast Guard finding that such and such a lease would be a hazard to navigation - would that be a show stopper? Or that birds are going to be affected?  What's a show stopper and what isn't?   And do you get to make that evaluation in consultation with us and all these agencies?  How does it work?

BORNHOLDT  That is the bazillion dollar question. That is really the crux of it. The slide  that Algene has that  shows the federal agencies, and the two slides that show the Act's requirements;  that's what makes any development in the ocean environment a challenge.

Because we are the lead for NEPA and our goal there is to hope that the investment that the federal government, that you all invest in us in doing the kind of an environmental analysis,  can then help inform Coast Guard when they have to make their decisions, Corp of Engineers when they have to make their decisions with regard to siting and permitting etc.

With regard to weighing the other resource agencies: it depends. If it's a statutory authority under the Endangered Species Act, Migratory Bird, Marine Mammal Protection Act, those acts call out what that resource agency's responsibilities are.

So in the context for that, let's say if it was a protected species under the endangered species act. We go through our environmental impact analysis to be able to inform us that BOEM using all the skills scattered around the table, using the cooperating agency agreement.

We develop what is called a biological assessment with regard to that particular critter that we want to  consult with state fish and wildlife  We give F&WS that biological assessment; they use that then to evaluate the responsibilities they have under the ESA for that particular critter and they advise us of what sort of requirements must be required of the lessee.

You saw Algene had that lease requirement?  Lease stipulation element;  we could get a biological opinion back that says "no jeopardy". But these are thing you MUST do,  these are the sort of activities we advise you to do, etc.

We don't tell them how to do their business. They inform us, in the context of the proposal, how the proposal could affect that particular species;  if it's okay to go forward with conditions, or if it is not. And so then we fold that into our decision making.  

That's why I said that it depends. We hope to make the NEPA documentation and help other agencies with their responsibilities There are offsets of that that we cull out; we call it a Biological Assessment, to be able to address a particular species that must be consulted on.

 For EFH - Essential Fish Habitat,  there's usually a section in our NEPA document that calls to that point and shows that analysis, if its embedded in the cost-analysis.   So we use the NEPA document as the mother document; that's why it's important to have cooperating agency agreements  and a good working relationship; make sure that's the best document it can be, so it's a multipurpose document.  

But in no way do I as BOEMRE tell the Fish and Wildlife Service how to come out with its Biological Opinion.  I will give them my Biological Assessment that we do on that particular animal with regard to its habitat etc,  and then they use that as a basis to inform their decision.

So its quite an art form.  So there's no simple answer, but in the end of the day, the decision to issue a lease resides in our agency, and we have to do some balancing the bal but we do not overtake their responsibilities under ESA.

RON BECK ,  1ST DISTRICT US COAST GUARD From a timing standpoint one of the points I wanted to make is that we try to work with harbor safety committees, port safety committees, before the draft EIS,  so we are up to speed about what the local concerns are and get our work in to BOEM before the draft Environmental Impact Statement

 This allows for a couple of things. When the public hearing occur, that on the table  Public op-comment period is available to you to come back  and say "well this rally should be seen in a different way".  So we're very conscious about trying to do our work as efficiently and as early as possible, so that the whole public process gets supported through both the hearings the public meetings, and the comments period.

TIM TIMMERMAN, US EPA. I want to go back to question about how you make an EIS  how you make that sausage  that's an EIS.  I have a question for you Maureen:  Since we haven't done one of these through this program, an applicant submits information that you guys use to create an EIS. You get input from the agencies about whether or not we want to see more things.   You gather information that we have based on our expertise.  

If there is identification of additional work that needs to be done for establishing baseline or  predicting impacts,  do you have a mechanism where, instead of going back to the applicant asking them to do a study, where you can ask them to write out a check  to fund a study that you or the federal agencies are in charge of?  Or is it always the mechanism that the information is provided through the applicant to you and then you have to vet it  and say," Is this done the way that was approved?"

BORNHOLDT  There are  several different mechanisms that we can employ. For example I am personally familiar with one that we used for Chevron in a case with Chevron in a case associated with leasing It was natural gas production. It was in the eastern Gulf of Mexico .
Kind of similar to what we're dealing with in Maine  in the sense it was frontier area and not a lot of data gathered.

And so there was certain specific information that we required that was identified through EPA water quality, that we told Chevron working with EPA there are the thing we need . You go out and get it " Because we felt that without that information their application wasn't complete.... We could frame the questions for the  analytics, but we couldn't do the analytics without it.  So in that case the company said "Okay I will do that."

There are other venues and avenues that we have.  For instance in Cape Wind,  when we wanted to do something with regard to I believe the long tailed duck. We got together with Fish  and Wildlife Service and Mass Audubon and BOEM put in money to be able to gather some data that we knew was needed to help us answer those question and  be able to do those things. 

So it depends on the type of information and the turn around time. As Algene talked to, this kind of long term study program that we can use to gather baseline information. and also off of that: if there are certain nuances or questions found or gaps or needs identified through that study, we can use that to help fund issues.

Does that necessarily help us when we're dealing with a particular  project?  No. But what it can help do is inform a question we agree around the table needs to go back to the developer, or one that we can all partner and arrive at the data or information. 

There's no set process.  It really depends on when you need the information and the extent.  If, let's say, they've filed their site assessment plan and we're taking a look at it  and there are some information gaps that have to do with the construction operation phase. We can also take a couple tacks with that.

We build into the regulatory framework some flexibility. To use the tools that we know work for instance saying conditioning the lease  or adding a lease stipulation that says, "before you construct, you must gather data on these sort of issues, using these protocols that we've developed around the table. So before you commit to the construction operation plan, we expect this data to be collected".  That's one way.

Another tool that's we've  folded into our regulatory framework is "monitoring". Let's say we discover that a particular type of seafloor is in this proposed area , and we really want to understand, given that  there's nothing there now, kind of follow its life through the life of the site assessment, construction operation etc.  And we set up monitoring for that area  ,because we're worried about burials or whatever.

We can make that a requirement right up front in the site assessment for the developer, either in collaboration with other agencies that are interested or on its own. Gather that data. give it back to us here and that can actually help inform the next phase of construction or just inform us generally speaking as a baseline. So we have a lot of different  opportunities available to us.

Writing a check and sending it to someone that could be an option. Sometimes that's not the best option  I think the best tool comes when we around the table develop the understanding as to the protocols, to be able to gather the data, to be able to use the data in our NEPA documents   and them develop together hopefully the monitoring for that  To me that's  proven benefit from working with sand and gravel, and we're hoping  to use it here.  We have various tools that we can use.

ARTHUR SPIESS,  STATE ARCHAEOLOGIST  Does the site assessment work include the powerline cables all the way to, for example, a substation connection? They have to come ashore somewhere.  Where does your responsibility stop and somebody else's  environmental review responsibility take over?  All the way out to the onshore substation?

BORNHOLDT Because our NEPA takes a look at not only just those areas that we have specific jurisdiction, but it takes a look  at the environmental footprint of the whole project, so even though were three miles out,  we take a look at everything.

KATHLEEN LEYDEN, ME COASTAL PROGRAM.  A two part question. One: states are trying to encourage the development of renewables and it's emerging as a national priority as well. Are there any incentives?   Mo,  you mentioned in the Cape Wind situation of actually helping to finance a bird study. Are there any other incentives there for the environmental work that  burden an emerging industry with a lot of requirements for that?

Second, do you use adaptive management types of approaches to have monitoring after the lease ?  Then is there an opportunity to affect the lease that's been granted or the operations  of the company?

BORNHOLDT  In fact we did build in that adaptive management philosophy into our regulatory framework. We knew that we would be taking a look at emerging technologies in areas that we didn't have a lot of reliable data.  So we have a provision that we can identify through our site assessment and construction operation plan review. Identify certain resources or activity that we would want to have monitored, and call that out. 

Let's say it was endangered species. Let's say,  F&WS  says " Okay fine, we can give 'No Jeopardy', but these are things you must include: develop a monitoring program following these monitoring protocols, and give us the data". 

Let's say we engage in that, and we find out that it isn't as  what we thought it was going to be. We could hope that the requirements in place  on the facility would result in a certainty factor that there are more birds being taken, say.  

What we can do under our rule with that lease is say: STOP. We've gathered this data  that shows that things have changed. We need to reinitiate consultation with Fish and Wildlife Service, and we need to retool the operations and take a look at it. So we can do that. So we've built that in.

We knew that we would be operating in basically new frontier areas with regard to environmental information coupled with brand new technology that was constantly evolving. So gave it an ability to do that. We call it an adaptive management philosophy.

It also can work the other way. Let's say we monitored for a particular effect on a particular resource.  And were getting really really good results. It's even better that we thought it would be. Then we can actually take that "lessons learned"  and apply it in the same area in analogous situations. We say "Hey we don't have to rachet down  and become more rigorous. We going to stay this course. This looks really good."

So they get that feedback.  It's not data that goes to a black hole. Its data that actually helps inform the operator as well as future operations in the area.

Jeff Arkin-Davis (?)  USFWS? Would you go back to slide 3?  For purposes of Section 7 consultation under the Endangered  Species  Act,  it would appear that your lease sale,  your SAP (Site Assessment Plan) and a COP, (Construction and Operation Plan), those are three things that you separately offer.  Are there three separate consultations for purposes of the Endangered Species Act?

BORNHOLDT  What we've done with other resource agencies, for example up in Alaska when we do oil and gas lease sales, we realized that this kind of framing and phased consultation can be burdensome.   

So what we have done is,  we have put together the lease sale EIS and the SAP (Site Assessment Plan) consultations.  Together, because we know that the site assessment activities are purely that - they are site assessment activities. They're doing the geophysical testing, the geotechnical testing, they're just gathering data. So that to us is a very reasonable way to couple it. We would work with  fish and wildlife service and NOAA Fisheries Office on that.

And then we know where the rubber meets the road will be the construction and operation plan, because that's where the specifics come.   So we do have this kind of two tier stage. But if a resource agency wanted to do all three, that would work with us. We can talk about how we want to stage this.

QUESTION. In working with FERC with some of the tidal federal energy projects there are often times   disagreements concerning much of the baseline information.  Its critical in order for a robust and proper roadmap, assessment, to understand what's present here today .

BORNHOLDT  We all have to take a look at what is being proposed.  Using the best available information.  I think one of the advantages of having kind of a phased approach where you have leasing and site assessment here, and construction/operation, is that some of the baseline data that you need can be collected through that site assessment period and really inform that construction operation plan.   

Even though as Algene has on the slide here, that the EIS has to take a look at  the activities that could be authorized by the lease. But you know that you have  a more refined evaluation scoping down to that construction operation plan at a later stage so it can allow for both.

I think the key thing, which is why we have this dialog around this table, is that we can talk about these issues as to what's the info we have out there now and what can that support and what it cannot support. If those are activities that it cannot support, is there a way we can use desktop analytics or some analogous situations?  Knowing that when it comes to the construction operation plan, that could be five years?  

Perhaps. Tim (Timmerman, EPA)  talked about the site assessment period, where you've gathering that data: Take advantage of that time.  Whether it's the developer specifically gathering the data, or us as a task force, or BOEMRE using its scientific environmental studies program to collect that data. Or just us    wanting to do something extra. We have that time period.

SAMANTHA HORN-OLSEN, LURC  You mentioned there were best management practices that were created. What is the source of those and are they standard for all leases? Or for individual leases?

A.  We couldn't find a copy of the best management practices . [Unintelligible...]

KARIN TILBERG.  I'll just throw an idea out that we can think about for our discussion later under agency action plans for the next meeting: 

It would seem like this move of agencies and state officials, tribal representatives that. We might try to get a sense from each sector what the key questions are they would be looking at under their respective statute?  

Should there be a SAP or COP coming forth -a  Site Assessment Plan  and Construction Operation Plan - I think it would certainly benefit the state agencies to have a better sense of the specific kinds of data that the federal agencies might be looking at and wanting to see.  And then the key questions and any specialty issues that really might put a halt on a project.  For us to have a discussion around that.

 So I  throw that out as something that we might talk about at our next meeting. Likewise the state agencies would be happy to try to share how we would be doing a consistency analysis that we would be looking to do for any project.  So I just throw that out now and welcome any thoughts on that later today .

We have agreed to take two questions from  the public.  Normally we only take questions at the end of the project because this is an  intergovernmental agency meeting . Going to agree to take two questions right now,. The remainder will be at 4 o'clock

RON HUBER,  PENOBSCOT BAY WATCH  I have a NEPA question for you.  It seems that projects will be coming online at different times and different configurations.  I see that different states are at  different paces  on this. Yet you have a lot of migratory species, whether its tuna or right whales or humpback whales or seabirds, that transit the whole coast.

And so my NEPA question is:  how can you coordinate these when, for example a project in the Gulf of Maine that will have a minimal impact on perhaps, tuna, with a project  off of South Carolina that  might have a minor but significant impact on tuna;  that impact caused the one up in the Gulf of Maine to be more significant that it would have been if it hadn't happened.

How do you keep readjusting the sort of NEPA review? Is it possible you'll do an entire coast wide environmental impact study, or is it going to be piecemeal, region by region, state by state?

BORNHOLDT That is an excellent question because that is one of the challenges of managing ocean energy development. It's the fact that the critters are not bounded by mountains or passes .  You do have this wonderful synergy. In the Gulf of Maine as your example  pointed out to perhaps activities that could occur off South Carolina; how that could affect fish stocks.

That is going to be a challenge. There's no one simple answer to that question.

NEPA does require that we do cumulative impact analysis; that we take a look at the project and if we have an understanding of how it affects the specific environment that it's in. But also the issue associated with footprints.  Algene has a list of resources that we take a look at.

So when we'd take a look at impacts to tuna we just don't take a 'look at them on the exact project site. In the cumulative analysis we'd take a look at what other plan or past activities are  projects or past activities are ongoing at the same time this project would be in its different phases and doing the analytics  and then say "and this is what the cumulative impact of adding this particular project  on to this... the cumulative impact of this particular project would be to the fish stocks to  the tuna stocks", so it would take that into considerations

It becomes very dynamic and its a challenge to  do this kind of analytics, because then the next project that would come to Maine, or even perhaps off of Virginia, and how it could affect. But NEPA does give us that ability to inform the decisionmakers that even though they're making a decision on a specific project, that because of the Cumulative imp assessment,  that they have an understanding of how this accumujaltes and adds on to already existing stressors associated with the marine human and coastan environment.

HUBER  I guess you have to  ask the different agencies that Are here. the EPA ergion one will ahve to coordinate with the regions in the south and so on  and the other agencies too.     Will the different task Forces have to interact with each other?

BORNHOLDT   Absolutely and that is kind of the beauty of having our task force system Because we can reach out quickly tap  Tim Timmerman of EPA or his counterpart in the South Atlantic, let's say Florida, as well as the beauty of having the folks sitting around the table  because it's  not one agency doing it  alone We've have to really be able to  mine the data sets and the experience from the other  federal agencies,  state agencies  local elected officials, tribal governments because there's traditional knowledge there that can also help inform impact to resources.

I don't know if I can exercise government or not.  My name is Stacey Fitts. I'm a state representative and also was on the Ocean Energy Task Force. But I'm here as uh...a citizen. And that's complicated ,  and I don't think I'll get into that. (chuckles.)

My question is, in trying to understand the first set of flow charts that described one NEPA document, and then comparing that to the last side by side of the competitive and no-competitive and limited, I see potentially in the competitive vein, three NEPA documents, and am trying to get a handle on how that is managed by a potential developer in the risk assessment.

Because a lot of effort and money and time is put into creating that NEPA document, with no guarantee that later on they could be determined to be in a competitive environment, and lose the opportunity after spending a considerable effort.    

So, from the development world, it's kind of a convoluted view of the decision making process. Is there opportunity for compressing that? I've heard it can be compressed. Under what mechanisms is it compressed and how is that done?

BORNHOLDT.  I would hope that after we have this dialogue it won't be so convoluted because sometimes it's even confusing to me and this is the challenge of this energy sector. You're talking about some great ideas in addressing some key energy issues. Yes we don't have the data we have a host of environmental laws we must comply  with.

WITH  regard to your "no guarantee" issue: EPAC does require us to issue lease on a competitive basis, as Tim said. Unless the Secretary  determines after public notice that there is no competitive interest.

Remember that and let me give you an example.  So you have an unsolicited proposal request come in to develop. We engage the task force and we begin that process.

Once we engage that unsolicited proposal, and we go out to determine if there is competitive interest and then it is found? There is no risk that someone's going to come in again and try to challenge that.

Tim pointed that out in his presentation: that once we engage on a noncompetitive process, it IS that process. So at least there's that guarantee that no one can come in after you and try to steal that away.

But you're correct. There are these opportunities for all these NEPA documentations Tim also mentioned, I think Algene did as well in her presentation, that the number of NEPA compliance places is really going be determined dependent on the information that is brought to the table.

So for example, for a  competitive lease sale. That is something that our agency owns. There's no one benefactor for that. It is multiple entities are interested in leasing this particular area. We will do that NEPA documentation.  So fortunately in that case, a developer is not putting up the money nor the time nor the effort for that particular competition EIS. So then we issue the lease.

Then they have a choice. There is time that elapse during the EIS process.  You've heard Algene talk about the requirement for scoping public scoping and for the draft hearings; those take time.

So the issue then is, a developer can come to the table after the lease is issued, and the more robust information it has, to address those requirements we have published back in April of 09 to file a Construction Operation Plan.  They can short circuit one of those stops and say,  "I want to file with you BOEMRE, a combined Construction Operation Plan with a Site Assessment Plan.  Here my information ."

We still  have to vet it a s a major federal action. There's no waiver, people. We all have to go through those analytics, and we all want to do that because again, this is a new energy sector generally speaking, in an environment that we don't have a lot of information So then you only have to NEPA.

For a non-competitive process, we've learned from the sand and gravel program... There's no competitive leasing for sand and gravel, it just doesn't happen that way  -  so we thought instead of doing a separate lease issuance that not competitive,  and then evaluating their plan to actually extract the sand, what we've decided to do was hold off on issuing the lease, yet we will not allow another company to come in, after we determine "non-competitive". So we'll do the NEPA work on the lease and the site assessment phases.

 Again  the same thing could hold that I as a developer, I've gathered  enough information to actually complete a filing for Construction Operation Plan, so even under the non-competitive scenario, there might just be one environmental assessment done, if I have robust enough information to meet the regulatory needs that we've outlined in Subpart F for Construction Operation Plan. So I think there are ways to be more efficient, but I think that the  bottom line is  we have - and Algene's presentation really brought it home - all those federal agencies that have all these jurisdictions associated with ocean activities, that we must somehow be able to be on the correct side of the law and comply with.

And NEPA is one of the tools that we can be most efficient on hopefully to do the right kind of analytics  to help those other federal agencies with their decision making so we don't duplicate . So there are ways that we can be more efficient and yet meet the laws that we need to."

End of Question and Answer period 2 (Following  presentation on environmental process by Algene Byrum, BOEMRE Environmental Coordinator at the 9/14/10 meeting in Belfast, Maine)

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