Fish and Wildlife:
Regulatory Framework and Challenges
Hydrovision 2008 Ocean/Tidal/Stream Power Track 7D
“Environmental Protection: Addressing the Regulatory Challenges”
Cherise M. Oram
STOEL RIVES LLP
Fish and Wildlife
Regulatory Framework
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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
Regulatory Framework
• Endangered Species Act (ESA), section 7
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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
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)
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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
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
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
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
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
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
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
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
Cherise M. Oram
STOEL RIVES LLP
Hydrovision 2008