September 5, 2008 ![](media/image1.png){width="1.0013888888888889in"
height="1.0013888888888889in"}

US Department of Interior Mineral Management Services

Attention: Regulations and Standards Branch

381 Eldon Street, MS 4042

Herndon, Virginia 20170-4817

To Whom It May Concern:

SUBJECT: COMMENTS ON PROPOSED RULES: ALTERNATIVE ENERGY AND ALTERNATIVE
USES OF EXISTING FACILITIES ON THE OUTER CONTINENTAL SHELF.

The Washington Department of Fish and Wildlife (WDFW) offers the
following comments on the proposed rules for 'Alternative Energy and
Alternate Uses of Existing Facilities on the Outer Continental Shelf'.

Washington Department of Fish and Wildlife (WDFW) believes the
development of offshore energy generating structures could potentially
be detrimental to the fish and wildlife resources of Washington State.
While these projects will be constructed outside of Washington State
waters, many species move across state lines as part of their normal
daily and seasonal migration, or simply following the schools of forage
fish, and thus these facilities can impact the fish and wildlife
resources of Washington State without being located in state waters. We
have detailed information that salmon, some bottom fish, numerous
species of marine birds and marine mammals routinely migrate between
state waters and the MMS lands beyond three miles.

Washington State places a high value on its fish and wildlife resources.
Our agency has the mandate to preserve, protect, perpetuate, and manage
the fish and wildlife resources of Washington State, and this includes
the habitat essential to these resources. The goal of WDFW's mitigation
policy is to achieve no loss of habitat functions or values, and we seek
to avoid impacts, or, when necessary, mitigate for losses from man-made
impacts. To achieve this goal, we need research and monitoring to
determine if and when impacts are occurring and a mitigation procedure
for determining losses and the best course of action to achieve
mitigation.

These structures may also interfere with the economic and traditional
uses of offshore waters, particularly by commercial and recreational
fishermen based in Washington State. Many of these fisheries have been
operating in the offshore areas adjacent to Washington State for 50
years or longer, and represent a significant primary industry for
coastal Washington, as well as a traditional way of life for many
coastal residents. The extent of interference may vary by the type of
fishing gear, and the extent of offshore development. Since there has
been no prior development of the Outer Continental Shelf off Washington
State, and no comparable development in the region, the State has no
means of estimating the economic cost of offshore structures on the
fishing industry. Fisheries that rely on open and unfettered waters may
have modify their equipment or operation, or simply avoid areas with
these power facilities. Fishing gears with long ropes or cables, such as
trawlers, long-liners, and crab boats are the most likely to be
impacted. Although some accounts suggest that rockfish and other fish
attracted to solid substrates could benefit from these offshore
structures, this remains unproven for the location and type of structure
proposed, and furthermore, it is unclear whether fishermen can get close
enough to these offshore structures to reach the fish species that are
attracted to these structures.

Comments on the proposed rules:

**Lack of guidance and funding for research and monitoring.**

In general, WDFW is concerned about that lack of emphasis on research
and monitoring, and controls on the pace of development until the
effects (both impacts and benefits) of offshore energy structures are
better understood. The current climate in the energy industry is one of
abundant capitol chasing limited opportunities. These proposed rules
have no control on the size of projects, and no directed funding to
accomplish the research and monitoring necessary to resolve questions
concerning the effects on fish and wildlife resources. If large-scale
projects (e.g., hundreds or thousands of windmills, which is the scale
of development currently occurring offshore in Northern Europe) are
placed without research and monitoring, we take a risk of creating major
impacts and dealing with the decline of one or more species, or, worse
case, a major change in the ecosystem, [after]{.underline} a massive
infrastructure build-up has occurred.

Research and monitoring are essential components of an environmentally
sound development plan. This is different from presuming that the
environment will be impacted, in that it requires a preliminary
small-scale development to conduct research and monitoring. From
information we learn from research and monitoring at a small-scale, we
can make initial estimates about environmental effects, modify
structural designs to minimize impacts, and then make decisions about
further development. As some potential impacts may be an issue at larger
scale of development (e.g., whale migration), it is appropriate to
evaluate additional research questions at each stage of development.

The costs of research and monitoring will fall inequitably on the
initial developers. The current proposed rules offers no relief from
this burden. The proposed rules rely heavily on the NEPA process to
address environmental concerns. The NEPA process is most useful when the
scientific research is available to assess the environmental impacts. In
the case of offshore windmills and similar off-shore developments, we
have very little information. WDFW is concerned that excessive resources
will be expended creating thick NEPA documents that are mostly
speculative, because the core scientific research has not been
conducted.

**Lack of a Process for Mitigating Fish and Wildlife Resource Loses.**

The proposed rules provides no discussion of how mitigation for lost
fish and wildlife resources is to be accomplished. While the rules
occasionally mention 'mitigation' (e.g., 285.615 \[2\] p. 39485,
285.652\[2\] p. 39492), the tools needed to determine when and if damage
to state fish and wildlife resources have occurred remains undeveloped,
nor are the mechanisms for determining mitigation of loses (what type
and how much) remains undetermined. The rule-making package does not
have a mitigation resolution procedure. In general, the concept of
environmental impact appears to be a yes or no decision based on the
preponderance of societal benefits and costs, rather than the specific
impacts to fish and wildlife resources (e.g., 'designed not to cause
[undue]{.underline} harm or damage to natural resources...'
285.617\[e\]\[1\] p. 39485.).

The goal of WDFW's mitigation policy is to achieve no net loss of
habitat functions and values. The type of mitigation required should be
considered in the following sequence of preferences:

-   Avoid the impact altogether by not taking a certain action of parts
    of an action.

-   Minimize the impact by limiting the degree or magnitude of the
    action and its implementation.

-   Rectify the impact by repairing, rehabilitating or restoring the
    affected environment.

-   Reduce or eliminate the impact over time by preservation and
    maintenance operations during the life of the project.

-   Compensate for the impact by replacing or providing substitute
    resources or environments.

WDFW recommends that a more detailed development of mitigation
procedures be encoded into these proposed rules.

**Commercial and Recreational Fisheries in Offshore waters.**

These proposed rules give a brief acknowledgement to other offshore
users, e.g., 'The COP \[Construction and Operation Plan\] ... does not
unreasonably interfere with other uses of the OCS, including those
involved with national security or defense." Construction and operation
of large numbers of off-shore structures will impact some off-shore
fisheries, and either displacing fishing boats as a result of safety
concerns or as a result of snagging risks between fish gear and power
structures. Off the coast of Washington, we have significant fisheries,
and it is likely that one or more of these fisheries will make a claim
of economic damage. These proposed rules do not spell out any means of
making an initial determination of economic impact, nor any
post-construction re-assessment of economic impact. If it is determined
that some sort of economic compensation is appropriate, these proposed
rules do not identify the liable party, nor a procedural mechanism for
determining appropriate compensation (i.e., fleet reduction via vessel
buy-backs, license buyout, stipends to vessel owners, resource
enhancement, gear replacement, purchase of alternate equipment).

Fishermen, faced with no assurances of economic justice, may strenuously
oppose offshore energy development. A good rule proposal should
anticipate potential future litigation, and provide pro-active
mechanisms for resolving these disputes. On this specific issue, the
proposed rules are deficient.

**State and Local Consultation.**

The rules limit coordination and consultation with state and local
entities to one representative from the governor's office and one
[executive]{.underline} representative from local government. Clearly,
the objective here is to get consultation with a broad regional or
community perspective and consultation that has current political
backing, rather than inputs based on the narrower objectives of
individual agencies and Non-Government Organizations (NGOs). Although
this may seem advantageous to expediting decision-making, it can create
suspicion and distrust in the parties that are not at the table.

In addition, there is a risk of not utilizing the technical experts
available in state agencies, local agencies and local NGOs. These
individuals can help the executive decision-makers understand what the
resources are and what the potential risks are.

WDFW recommends that the rules include a mechanism for technical input
from state and local authorities. Such a forum would have to be
science-based, and be willing and able to respond to questions and
queries from the executive workgroups within specified deadlines. It
would not be a forum where untested or untestable hypotheses gain
credibility based on the weigh of public opinion, or the opinion of
individual interest groups.

**Other Comments.**

The proposed rules run over one hundred thirty pages and utilizes
roughly 50 different acronyms. A summary of acronyms with brief
definitions would reduce confusion considerably.

Section 285.831 p. 39432. Among other reporting requirements, collisions
between power-generating structures and whales should be reported, and
collisions between whales and vessels involved in construction and
maintenance of energy-generating structures should be reported.

Section 285.612 p. 39484. Terms and conditions on an SAP can include
pre-construction resource monitoring to resolve resource issues of
uncertainty.

Section 285.620(b) p. 39485. Alternate deconstruction plans should not
be part of the 'conceptual decommissioning plans' in a SAP. WDFW's
concern is that MMS will give the perception of consent to an Alternate
Deconstruction Plan 30 years prior to the event. Decommissioning plans
other than complete removal of the structure should be considered only
in light of the scientific information and public values immediately
prior to deconstruction.

**Conclusion.**

WDFW strongly recommends better clarification for how research on fish
and wildlife issues will be funded and how research findings be
considered in decision-making. A process is needed to estimate fish and
wildlife loses, and, when necessary, facilitates mitigation settlements
and implementation of these settlements. A process for determining
economic impacts to existing fisheries, and a process for determining
economic compensation, if necessary, are also essential parts of
rule-making. WDFW believes that any collaboration between state and
federal agencies must include a scientific forum with participation by
state and local experts on fish and wildlife resources.

Sincerely,

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Mark A. Hunter

Environmental Planner 5

Washington Department of Fish and Wildlife.