1. New Technologies: Fish & Wildlife Permitting Issues Cherise M. Oram STOEL RIVES LLP NWHA Annual Conference – February 20, 2008

2. 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)

3. 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

4. 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?

5. 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.

6. 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

7. 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

8. 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

9. 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.

10. 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

11. 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

12. Thank you!