The Southern Shrimp Alliance (SSA) has submitted extensive comments to the Bureau of Ocean Energy Management (BOEM) in specific response to the federal agency’s Request for Information concerning their document entitled: “Guidance for Mitigating Impacts to Commercial and Recreational Fisheries from Offshore Wind Energy Development” (‘Guidance document’).
See SSA’s Comments here: https://www.shrimpalliance.com/wp-content/uploads/2022/01/SSA-comments-BOEM-Fisheries-Mitigation-Guidance-1-7-22.pdf BOEM’s fisheries mitigation guidance document can be found here: https://downloads.regulations.gov/BOEM-2021-0083-0001/content.pdf
“In some very important ways, BOEM’s Fishery Mitigation Guidance document raises more questions for us than it answers.”, said SSA Executive Director John Williams.
One of many reasons for concern raised by SSA is that the current regulatory definitions of what “mitigation” actually means – and what “effect and impacts” can be considered – are in a major state of flux. In July of 2020, the Council on Environmental Quality (CEQ) under the Trump Administration made what are generally seen as substantial changes to weaken some of the core regulations implementing the National Environmental Policy Act (NEPA) that govern all federal agency actions affecting the environment – including BOEM’s mitigation of the impacts of offshore wind energy development on the Gulf shrimp industry.
Among these changes are those that explicitly removed the “cumulative impacts” of multiple wind energy projects in the Gulf from those that must be considered by BOEM. Furthermore, those regulatory changes indicate that there is now no NEPA mandate at all for BOEM to require the offshore wind energy industry to mitigate any impacts – whether direct, indirect, site-specific or cumulative. Consequently, the applicable Guidance to be developed by BOEM will be just that – purely discretionary actions that may or may not be taken by offshore wind energy companies to mitigate the impacts of their activities on U.S. fisheries.
Compounding the situation is that the CEQ under the Biden Administration has proposed new regulations that effectively restore the key NEPA regulatory definition of “effects and impacts” to the more expansive Pre-Trump CEQ definition, and it has indicated that it intends to pursue a series of rulemakings to address other changes made in 2020. Those proposed regulations are not final, and those future changes may include those to address the confusing definition of “mitigation” now in place, and whether such mitigation will even be required of offshore wind energy companies.
Thus, SSA was faced with trying to predict what regulations the offshore wind energy industry will be required to meet. “BOEM needs to step back and make sure things are in order before asking us questions we can’t possibly answer. They’re just moving too fast. Some of these impacts may be irreversible and so they need to get this right”, Williams added.
As BOEM’s fisheries mitigation Guidance document confirms, the stepwise approach to “mitigation” is first to “avoid the impact altogether”, then to “minimize impacts” that cannot be avoided, and then to provide financial compensation to fishermen for the economic impacts they sustain from those unavoidable impacts. But, in its Guidance document, BOEM confirms that it simply does not have the authority to require such financial compensation – it can only enforce voluntary compensation agreements entered into by wind energy companies. As stated in SSA’s comments “That such a requirement does not already exist is disturbing and placing the burden on the U.S. fishing industry including the Gulf shrimp industry to privately ‘negotiate’ financial compensation with offshore wind energy companies on a project-by-project basis is completely untenable and will certainly result in unfair and insufficient compensation.”.
With that in mind, SSA’s comments make a case for Congress to establish “a national policy for mitigating the impacts of offshore wind energy development to include a national policy and process for requiring the offshore wind energy industry to financially compensate fisheries for impacts that could not be avoided or minimized for the life of any project.”. That policy could take advantage of the statutory precedent of the “Fishermen’s Contingency Fund” established many years ago in the Outer Continental Shelf Lands Act (OCSLA) whereby NOAA administers fees collected from oil and gas companies for compensating fishermen for certain financial losses caused by offshore oil and gas development.
Wrapping up SSA’s comments is their far-reaching response to BOEM’s request for input on what types of impacts on the Gulf shrimp industry might be expected from offshore wind energy development in the Gulf.
According to SSA, “These include but are not limited to the following.
• Financial losses measured in terms of the value of total shrimp catch as well as loss of catch efficiency (Catch Per Unit Effort (CPUE)) caused by any displacement, temporary or permanent, from traditional fishing grounds resulting from any pre-construction, construction, operation and servicing and repair of any offshore energy production facility, including inter-turbine array electric cables, as well as any such permanent or temporary displacement resulting from dredging and installation of energy transmission lines to shoreside facilities. It is noted that any reductions in CPUE will result in net vessel revenue loss.
• Financial losses measured in terms of the value of total shrimp catch, the loss of catch efficiency (CPUE) and associated net revenue loss, or the loss or damage to shrimp fishing gear, equipment or vessels resulting from any debris on the seafloor generated by any offshore wind energy activities including debris from the damage or destruction of any offshore wind energy facility, cable, transmission line or any other associated equipment caused by severe weather or maritime accident. As noted in previous SSA comments, it does not appear that current wind turbine engineering and technology is sufficient to withstand the wind speeds or wave heights generated by Category 5 hurricanes which frequent the Gulf including the Call Area.
• Financial losses measured in terms of the value of total shrimp catch and/or the loss of catch efficiency (CPUE) and associated net revenue loss, associated with any costs of gear modification, gear design, or any other changes in fishing practices necessary to adapt to a more restricted fishing environment caused by, for example, the location, size, and configuration of offshore wind energy facilities.
• Financial losses resulting from the shrimp fishery being displaced and compressed into increasingly smaller areas in competition with each other which will, by definition, result in reductions in CPUE and, thus, net vessel revenues.
• Financial losses of upstream and downstream shoreside businesses resulting from the losses in the total value and volume of shrimp catch and/or reductions in shrimp fishing CPUE.
• Financial losses of shrimp fishing vessels as well as upstream and downstream shoreside businesses resulting from the displacement from and loss of access to waterfront space and facilities caused by competition from the offshore wind energy development industry.
In addition to these impacts, there may be impacts on the shrimp industry that result from the adverse impacts offshore wind energy development may have on sensitive species and ecological habitats the health of which the shrimp industry is otherwise held accountable for through various regulatory restrictions imposed on its operations pursuant to the ESA and MSA. Any sensitive species population that is depleted and any sensitive ecological habitat that is damaged by offshore wind energy development – either on a site-specific (direct) or cumulative basis – may lead to the imposition of additional costly regulatory restrictions on the shrimp fishery. The offshore wind energy industry must be held accountable for those costs to the shrimp industry as well.
Further, there are other potential impacts on the shrimp industry that that are less understood in the Gulf at this stage of the process, but which have emerged from the experiences of other U.S. fisheries with offshore wind energy development in other regions of the U.S. As just one example, depending on the size, location, and configuration (e.g., spacing, layout, transit corridors) of any given wind turbine array, fishermen may be forced to navigate longer distances to fishing grounds and back to port and thereby incur higher fuel costs and perhaps greater threats to their safety. The offshore wind energy industry must also be held accountable for these additional costs to the shrimp industry.
Finally, compensation for all such impacts that cannot be avoided or minimized must be provided throughout the life of the project.”