CSO Offshore Energy & Infrastructure�Work Group Call

March 23, 2022

Agenda

​

Staff Update

NEPA/CZMA Letter Update

Fisheries Guidance Update

Transmission Discussion

Request: Data Access Feedback

Member Updates

Legislative Update

�Staff Update�Legislative Update

NOAA highlights include:

o CZM Grants - $79M (+$0.5M from FY21)

o CZM&S - $49M (+$2.3M)

o NERRS - $29.7M (+$1.2M)

o Sea Grant - $76M (+$1M)

o IOOS - $41M (+$0.5M)

o Regional Data Portals - $2.5M (+$0M)

o NCRF - $34M (+$0M)

o Coral Reef Program - $33M (+$0M)

o Habitat Conservation and Restoration - $55M (-$2.625M)

o Climate Research - $200M (+$18M)

o Mission Support - $59M (+$16M)

o Office of Marine and Aviation Operations - $164.5M (+$44.5M)

o NOAA has been authorized again to waive CZM and NERRS match requirements

�Staff Update�Legislative Update

USACE highlights include:

o Engineering with Nature - $16.25M (+$16.25M from FY21)

o Great Lakes Coastal Resiliency Study - $0.5M (+$0.5M)

o Environmental Infrastructure - $13M (+$13M)

o BUDM (CAP 204) - $10M (+$0M)

o BUDM Pilot Program - $2.044M (-$9.776M)

o Shore Protection (CAP 103) - $1M (-$3M)

o Shore Protection Investigations - $0M (-$5M)

o Shore Protection Construction - $19.833M (-$30.367M)

o National Shoreline Management Study - $1.5M (-$0.32M)

o Planning Assistance to States - $9M (-$1M)

Legislative Update

�Staff Update�CSO Annual Meeting

Legal Council Meeting: May 16

CSO Member Meeting: May 17 & 18

OCM Program Managers Meeting: May 19

OEI Work Group Call: May 25

​

Legal Council:

• Aquaculture session?
• Other agenda requests?

�NEPA/CZMA Process Update

CSO letter to BOEM, NOAA – Mar. 7, 2022

​

Process

• Timeline identification
• Joint calls
• Pre-call preparation
• Stakeholder outreach

�NEPA/CZMA Process Update

Issues for consensus building

• BOEM submission of consistency certification package – timing and content
• Proponent submission of certification to BOEM with COP – impact on proponent
• Determination of states receiving consistency certifications – voluntary submission
• Changes to COP / certification between NOI and NOA
• Scoping / determination of alternatives
• Constructive notice for UARs
• Consultation requirements (stakeholder boards etc)
• Impact on pending reviews
• Fast 21 Dashboard

BOEM Draft

Fisheries Mitigation Guidance

�Member Discussion�Transmission Infrastructure / Cable Siting

What is your program’s experience working with developers and agencies to coordinate new ROWs / utilize existing corridors (in wind and O&G)?

​

1. What projects / programs have had this discussion?
2. What are developers’ considerations when identifying preferred routes?
3. What are barriers – regulatory, data gaps, conflicting priorities?
4. What are state perceptions about responsibility/coordination between BOEM/USACE?

�Member Discussion�Transmission Infrastructure / Cable Siting

Work Group needs/priorities

​

• Federal (OCSLA, R&H, NEPA), state authorities to coordinate across projects
• Improving coordination with agencies
• Planning for decommissioning
• Identification of existing corridors
• Considerations about potential future expansion
• Utilization of new or unusual technology
• Profit sharing

Member Request – Data Access Feedback

NOAA works with BOEM and science agencies to provide data from across the federal government for ocean planning / project review (fisheries, ocean observation, NWS radar)

​

• What are legal / regulatory barriers to accessing federal data?
• What are practical barriers to using federal data?
• How effectively is NOAA partnering with states to utilize state-gathered data?
• How effectively is NOAA working with regional data portals?
• How effectively is NOAA using partners like RODA?

�CSO Position

“Support the development of regional frameworks, led by the states, to coordinate mitigation and compensation of demonstrated negative impacts to marine resources, fisheries, and cultural resources.”

CSO Policy on Coastal and Offshore Renewable Energy Planning and Project Review (October 7, 2021)

​

“[W]e urge the federal government to provide leadership on regional natural resource impact assessment and mitigation frameworks for demonstrated negative impacts on marine resources, fisheries, and local cultures.”

Jt Gov’rs Letter (June 4, 2021)

�DEIS as Necessary Data and Information

“Federal consistency review is initiated when BOEM forwards the consistency certification to states, which BOEM does at the time it issues a Notice of Intent (NOI) to prepare an Environmental Impact Statement.” (November 2020)

​

“… BOEM will forward one copy of your COP, consistency certification, and associated data and information under the CZMA to the applicable State … after all information requirements for the COP are met.” 30 CFR 585.628(c)

​

CSO’s Position: Federal consistency review should be initiated at the time that BOEM issues the DEIS by BOEM forwarding the consistency certification to the states.

�DEIS as Necessary Data and Information�Strategic Approach – Preferred Outcome

​

1. States may list the DEIS as NDI for Construction and Operation Plans
• BOEM forwards CC to state at issuance of DEIS

​

• NOAA (and/or BOEM) defines the DEIS as NDI in CZMA regulations

�DEIS as Necessary Data and Information�Argument Outline

1. Overview of COP Review Process
2. Legal Argument
1. NOAA Regulations Allow States to List the DEIS as NDI unless a Federal Statute Requires an Agency to Initiate CZMA Review Prior to Completion of NEPA Compliance
2. No Federal Statutory Requirement Applies (Controlling Provisions)
3. Controlling BOEM Regulations Set a COP Review Timeline, but Do Not Address Federal Consistency

3. Policy Argument
1. History of COP reviews
2. Advantages of DEIS vs NOI
1. Sufficient impacts / effects data developed through DEIS drafting process
2. Design alternatives identified
3. Disadvantages of the current practice
• Stay agreements; uncertainty
• Possibility of project alternatives identified after review
4. Proposed Policy

�DEIS as Necessary Data and Information�Legal Standard

15 CFR § 930.58(a)(2)

​

“Information specifically identified in the management program as required necessary data and information for an applicant's consistency certification…. NEPA documents shall not be considered necessary data and information when a Federal statute requires a Federal agency to initiate the CZMA federal consistency review prior to its completion of NEPA compliance. States shall not require that the consistency certification and/or the necessary data and information be included in NEPA documents.”

�DEIS as Necessary Data and Information�Legal Standard

Controlling statute: OCSLA (as amended by EPAct) – 43 U.S.C. 1337(p)

​

Example of “Federal statute requires a Federal agency to initiate the CZMA federal consistency review prior to its completion of NEPA compliance”

• Exploration Plan: “The Secretary shall approve such plan, as submitted or modified, within thirty days of its submission” 43 U.S.C. 1340(c)(1)
• Contrast the Development and Production Plan, 43 U.S.C. 1351(h)

�DEIS as Necessary Data and Information�Input Request

1. History of COP reviews – stay agreements; examples of uncertainty
2. Examples of impact information developed through the DEIS drafting process
3. Examples of design alternatives / design changes / routing changes
4. Correspondence regarding authorities / rationale

�DEIS as Necessary Data and Information�Next Steps

1. Develop a CSO letter / white paper laying out the CSO position.
2. Use the work group as a vehicle to coordinate with BOEM and NOAA.
3. Seek confirmation from BOEM interpreting current statutes and regulations to allow federal consistency review to begin at the release of the DEIS.
4. Seek a change in BOEM review practice for upcoming proposals. Seek support from BOEM and NOAA to implement coastal program NDI lists listing the DEIS.
5. Support states pursuing program changes to list the DEIS as NDI.
6. If appropriate, continue to seek rulemaking to establish the DEIS as NDI by definition.

�DEIS as Necessary Data and Information

15 CFR § 930.76(a)

​

“Any person submitting any OCS plan … shall submit …:

(1) A copy of the OCS plan;

(2) The consistency certification;

(3) The necessary data and information required pursuant to § 930.58; and

(4) The information submitted pursuant to the Department of the Interior's OCS operating regulations (see 30 CFR 250.203 and 250.204) and OCS information program regulations (see 30 CFR part 252).”

�DEIS as Necessary Data and Information

Example: OCSLA Exploration Plan

​

“[P]rior to commencing exploration pursuant to any oil and gas lease issued or maintained under this subchapter, the holder thereof shall submit an exploration plan to the Secretary for approval. … The Secretary shall approve such plan, as submitted or modified, within thirty days of its submission….”

​

43 U.S.C. § 1340(c)(1)

�DEIS as Necessary Data and Information

Example: OCSLA Exploration Plan

​

“A requirement that NEPA documents (draft or final) be completed prior to the start of the six-month review period is incompatible with statutory requirements in the OCSLA. 43 U.S.C. 1340(c)(1) and 1351(h). MMS must make its decision whether to approve an EP within 30 days of receipt of the EP. Within that 30-day period, MMS completes its Environmental Assessment (EA). … Since the State receives the EA within a very short period (20–30 days) after the start of the six-month review period, the CZMA process is not delayed unnecessarily.”

​

CZMA Federal Consistency Regulations, 71 Fed. Reg. 788, 797 (Jan. 5, 2006).

�DEIS as Necessary Data and Information

Compare: OCSLA Development and Production Plan

​

“For DPP’s, States can amend their programs, pursuant to 15 CFR 930.58(a)(2), to include draft NEPA documents as data and information necessary to start the six-month review, because there is additional time in the OCSLA process. See 43 U.S.C. 1351(h) and 30 CFR 250.204(1).”

​

CZMA Federal Consistency Regulations, 71 Fed. Reg. 788, 797 (Jan. 5, 2006).

�DEIS as Necessary Data and Information

• Do the same OCSLA provisions apply to OSW projects?
• Would the change affect the review timeline?

​

• Disadvantages of the status quo:
• Project designs evolve in the development of the DEIS.
• Data and information about impacts are developed via the DEIS drafting process.
• Stay agreements are voluntary.
• Stay agreements create a collateral attack vulnerability.

�Compensatory Mitigation under CZMA

BOEM: “The Lessee must establish the compensation/mitigation funds listed in Section 6.3.1 in accordance with consistency certifications issued for the Project under the Coastal Zone Management Act.” – Vineyard Wind ROD (May 10, 2021)

​

OCM: [Compensatory mitigation] “cannot be part of an enforceable policy, a condition of concurrence, or a basis for an objection. A state could still object because mitigation is not adequate to meet the application of an enforceable policy, but could not object because the federal agency or applicant did not pay funds.” (November 2020)

�Compensatory Mitigation under CZMA

• CZMA does not authorize the requirement to pay
• Federal agency activities (Subpart C) – Antideficiency Act
• May be negotiated and identified in concurrence, but CZMA would not compel the federal agency to enforce

Non-CZMA Authorities

​

• NEPA review – BOEM’s separate authority to require mitigation
• Contractual agreement – state law

Member Updates

Next Call

May 25, 2022