If the Federal Energy Regulatory Commission’s new plan for faster wave energy permits was a play on Old Broadway, it would have been closed down by the critics on opening night. The critics in this case are the states of California, Oregon and Washington, several fellow federal agencies, including the National Oceanic and Atmospheric Administration (NOAA) and the Department of Interior,
Last week, they all filed public comments criticizing and asking for clarification about the Policy Statement on Conditioned Licenses for Hydrokinetic Projects. The unprecedented barrage of critical “reviews” called the new policy statement illegal and likely to slow down wave energy development by creating a Gordian legal tangle. The agencies have asked FERC to slow down and engage in rulemaking, a legal and public process that leaves an extensive paper trail.
The county of Mendocino, the city of San Francisco, the California Recreational Fishing Alliance and two Mendocino County women also filed public comments. The filings are the single biggest expression of official opinion about the issue on record.
“NOAA is particularly concerned with regard to how FERC will comply with requirements of the Endangered Species Act (ESA), Federal Power Act (FPA), National Marine Sanctuaries Act (NMSA), Magnuson-Stevens Fishery Conservation and Management Act (MSA), and the National Environmental Policy Act (NEPA). Issuing licenses in incremental stages is inconsistent with FERC’s obligations under these and other statutes, and could confuse and frustrate license applicants,” the NOAA filing states. FERC’s new licensing process would have allowed projects to go forward on paper while permits are acquired. NOAA points out that blurs the process in a way sure to confuse applicants as well as fellow agencies.
“As a federal agency it is inappropriate, and obviously biased, for FERC to consider state and federal environmental laws as something to circumvent to provide regulatory certainty to developers,” wrote Helen Woodfield of Elk in her personal filing.
Perhaps the most significant filing was by the California State Lands Commission, which until now has been silent on the issue. The state agency takes the occasion to remind FERC that it owns the lands off the coast for three miles and that placement of any wave energy device would require prior permission or lease from the lands commission. Prior to that happening, a finding under the California Environmental Quality Act must be obtained, the commission’s filing states.
The State Lands Commission asks FERC to notify the state prior to considering any wave energy plans in state waters and asks the federal agency to call if it has any questions about state jurisdiction or how the lease process works. The commission includes a lease application for FERC.
Elizabeth Mitchell, a retired NOAA attorney living in Fort Bragg, filed a Freedom of Information Act request to get information about how FERC came up with the policy but was rebuffed by the agency.
“I think the message for FERC is that other federal agencies, the states, and the tribes all want FERC to conduct an open, public process instead of operating in secret,” Mitchell said. “They want FERC to address the serious environmental issues, and conflicts with other ocean uses, raised by offshore licensing of untested wave energy technologies. They also want FERC to recognize that states, counties, and municipalities have serious interests at stake, and that other federal laws like the Coastal Zone Management Act and the Endangered Species Act must be taken into account before FERC starts issuing licenses.”
Mitchell made two filings of her own, one calling into question the legality of the comment period.
“The 14-day public comment period on the Policy Statement is simply insufficient time to do the research and drafting necessary to prepare informed comments,” Mitchell said. “It is also far shorter than the customary 30 to 60 days for public comments usually afforded by public agencies for significant new policies.”
The comment period was also criticized as much too short by many other filers.
“We repeat our earlier request for a rulemaking process and ask that the public comment time on this document be extended,” wrote Jim Martin of Fort Bragg, West Coast director of The Recreational Fishing Alliance.
“We know of many members of the public who would like to comment on this but the time constraint prevents them from doing so. Significant tribal interests have not been contacted regarding these projects and we believe such projects are required to undergo the same environmental review that applies to other power projects,” Martin said.
Mitchell portrays FERC as an agency that operates in the dark and by its own rules. FERC has its own lawyers and doesn’t use the Attorney General, for example. Statements in the filing show that this concern is not unique to Mitchell.
“NOAA recommends that FERC seek authorizing agency consensus regarding the implementation of this policy through interagency discussions,” the NOAA filing states.
“We remain concerned that the Commission’s recent policies seek to reduce regulatory barriers and streamline the licensing process for hydrokinetic projects without due regard for impacts to natural resources,” the Department of Interior filing states.
“We believe such action is premature given that little is known about the effects of these projects on the natural and human environment.”
Mendocino County’s filing is a petition asking the federal agency to engage in rulemaking, the methodology the federal Minerals Management Service is using for its wave energy permitting process. The MMS and FERC have been in a jurisdictional feud as to who controls the wave energy process.
“The Commission fails to explain to stakeholders how precisely it is going to implement the procedures and how stakeholders, such as Mendocino County, can participate actively in these projects which will inevitably impact the livelihood and environment of its residents in unknown dimensions,” Mendocino County’s filing states. “Therefore, the County respectfully requests that the Commission implement the appropriate rulemaking procedure that will provide a structure for all interested parties to obtain the information they need to participate meaningfully and evaluate the proposed changes in licensing.”
Washington and Oregon agencies also called the comment period too short and the policy confusing and insufficient to address environmental concerns.
“I also think it’s very significant that Oregon is starting to express reservations. They’ve always been FERC’s biggest cheerleader,” said Mitchell.
Mitchell doesn’t expect FERC to listen to the critics.
“It appears that they are operating under a political imperative to damn the torpedoes, full speed ahead.’ Because of the [Administrative Procedure Act] and [National Environmental Policy Act] their lawyers should have stopped them by now, but it was obvious from their behavior on the stage in Portland back in October that they are captive to the commissioners’ whims, and are falling all over themselves to please them.”
From a procedural standpoint, FERC states the new policy is already in effect, as of Nov. 30, Mitchell points out. That was when the comment period started, ending Dec. 14. So what will happen now?
“Your guess is as good as mine, but I think they will blow everybody off. Some legal moves may ensue, but that will be a future story,” Mitchell said.