1. Fish and Wildlife : Regulatory Framework and Challenges Cherise M. Oram STOEL RIVES LLP Hydrovision 2008 Ocean/Tidal/Stream Power Track 7D “Environmental Protection: Addressing the Regulatory Challenges”

2. Fish and Wildlife Regulatory Framework Endangered Species Act Clean Water Act Federal Power Act National Environmental Policy Act Marine Mammal Protection Act Migratory Bird Treaty Act Magnuson-Stevens Fishery Conservation and Management Act Coastal Zone Management Act

3. Regulatory Framework Endangered Species Act (ESA), section 7 –U.S. Fish and Wildlife Service (FWS): terrestrial, freshwater –National Marine Fisheries Service (NMFS): marine species –No “jeopardy” to species –No “destruction or adverse modification” of critical habitat –Conditions to minimize and monitor incidental take Clean Water Act (CWA), Section 401 –State water quality certification agency –Condition project to meet water quality standards to protect “beneficial uses,” including aquatic species

4. Regulatory Framework (cont’d) Federal Power Act (FPA), section 10(j) –State and Federal fish and wildlife agencies –Recommend license conditions to protect fish and wildlife National Environmental Policy Act (NEPA) –Federal Energy Regulatory Commission (FERC) –Corps of Engineers, federal land management agencies –Analysis of environmental impacts, alternatives –Public review and comment –Solely procedural; does not mandate particular decision

5. Regulatory Framework: Marine Only Marine Mammal Protection Act (MMPA) –NMFS –Incidental Harassment Authorization (4 -6 month time line; 1 year authorization) –Letter of Authorization (issue regulations, 5 year authorization) –With one exception, permit is voluntary Migratory Bird Treaty Act (MBTA) –FWS –Come to agreement on methods for avoiding/minimizing take

6. Regulatory Framework: Marine Only (cont’d) Magnuson-Stevens Fishery Conservation and Management Act (Magnuson Act) –NMFS –Recommendations to protect “Essential Fish Habitat” (EFH) of commercially harvested fish Coastal Zone Management Act (CZMA) –State CZMA consistency certification agency –Consistency with state coastal zone management plan, including protections for living marine resources

7. Addressing Uncertainty What level of information do agencies need? –Doesn’t need to be perfect information Agencies should: –Use best available data –Data from project site or comparable areas –Use analogous information Sea lion haul out info from other sites Noise from similar sources Sea bed alteration from platforms Use best professional judgment, document information and thinking

8. Monitoring, Studies Obligation to monitor, study Fish and wildlife agencies will impose conditions to monitor FERC licensing process requires studies –Can be completed post-licensing if appropriate Minimize protracted litigation by building stakeholder consensus on initial measures, monitoring, studies –Particularly key for new technology, new locations

9. Adaptive Management Use to manage and interpret monitoring, studies Use to decide whether changes are needed to meet existing authorities Best available science must support initial application –monitor to confirm assumptions –allows for modifications to address unforeseen impacts

10. Adaptive Management (cont’d) Benefits of approach: –Gets projects in the water based on best available data –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, requires attempt to work together before moving to other options –Key: allows generation, development of more information to confirm impact level or modify project

11. Looking forward As we learn more about impacts (or lack thereof): –Can be more prescriptive –More monitoring, fewer studies –Insist on more certainty for developers regarding long-term fish and wildlife measures

12. Cherise M. Oram STOEL RIVES LLP Hydrovision 2008