Elizabeth R. Mitchell

17555 E Kirtlan Way

Fort Bragg CA 95437

707-962-0617

<Bethmi@mac.com>

May 20, 2008

> Re: Comments to Minerals Management Service (MMS), U.S. Department of
> the Interior, on MMS Docket ID MMS-2008-OMM-0020 (Lease Nominations
> for Alternative Energy Activities on the Outer Continental Shelf) and
> MMS Docket ID MMS-2007-OMM-0072 (New Leases of Submerged Lands for
> Alternative Energy Activities on the Outer Continental Shelf --
> Information Collection 1010-NEW)

Dear Minerals Management Service:

These comments are being submitted on behalf of Elizabeth R. Mitchell
(as an individual) and Fishermen Interested in Safe Hydrokinetics
(hereinafter "***FISH Committee***"). Contact information is c/o
Elizabeth R. Mitchell, 17555 E Kirtlan Way, Fort Bragg, California,
95437, 707-962-0617, <Bethmi@mac.com>. The ***FISH Committee*** is an
unincorporated association of fishing organizations based in Fort Bragg,
California, and is the stakeholder organization for the local fishing
community with respect to wave energy development. Members of the FISH
Committee fish off both Mendocino and Humboldt Counties in Northern
California and/or own fishing-related businesses.

We are particularly concerned with wave energy projects that are
currently being authorized in the Pacific Ocean off Mendocino and
Humboldt Counties in Northern California, including two projects by the
Pacific Gas and Electric Company (PG&E) known as the Mendocino and
Humboldt WaveConnect Projects. Three-year preliminary permits were
issued for the PG&E projects by the Federal Energy Regulatory Commission
(FERC) on March 13, 2008 in FERC Docket Nos. P-12781 and P-12779. On
April 14, 2008, the Department of the Interior filed Requests for
Rehearing in both FERC docket numbers, on the grounds that FERC has no
jurisdiction on the Outer Continental Shelf (OCS). MMS announced in a
Federal Register notice dated April 18, 2008 that it intends to issue
leases to PG&E for the portions of these projects that will be placed on
the OCS.

These comments are submitted in response to requests for public comment
contained in two MMS Federal Register notices: 1) MMS Docket ID
MMS-2008-OMM-0020 , 73 Fed. Reg. 21152-55, April 18, 2008 (correction
published at 73 Fed. Reg. 23490-91, April 30, 2008), "Announcement of
nominations and processing priorities, inquiry on competing nominations
for proposed limited alternative energy leases, and request for comments
from interested and affected parties," and 2) MMS Docket ID
MMS-2007-OMM-0072, 73 Fed. Reg. 21363-75, April 21, 2008, "Notice of a
new information collection (1010-NEW) and request for comments."

**COMMENT NO. 1:** We urge MMS to defer issuance of any leases for
alternative energy development, including limited leases for resource
assessment and technology testing, until such time as its final
regulations implementing Section 388 of the Energy Policy Act of 2005
\[43 USC 1337(p)\] are issued. To date, MMS has completed a Programmatic
Environmental Impact Statement and established an Alternative Energy and
Alternate Use Program to authorize and regulate OCS activities pursuant
to its new authority. MMS is in the process of developing proposed
regulations that should be finalized by the end of the year, and that
will supersede whatever actions MMS takes to issue limited leases
now.[^1]

This is the appropriate regulatory model for MMS to follow for all OCS
leases, including limited leases for resource assessment and technology
testing. Not only will it ensure that all legally-required regulatory
mandates have been met before leases are issued, it will make the
process more efficient by eliminating duplication of effort in gathering
information and performing environmental analyses for site-specific
conditions and effects of technology testing. It will also prevent
duplication of effort in obtaining the other governmental approvals that
are required by Section 9 of the draft standard lease form.

The only foreseeable benefit to issuing limited leases now is to obtain
data during favorable ocean weather conditions in the Summer and Fall of
2008. However, it is unlikely that limited leases will be issued in time
for lessees to gear up in 2008, or that the lessees, PG&E in particular,
have funding, research plans, contracts, or consultants in place to take
advantage of a limited lease during the Summer and Fall of 2008.
Therefore nothing is lost by postponing issuance of limited leases until
MMS's regulations are final, and issuing the leases in 2009. This would
also avoid the problem that occurred in Newport, Oregon, in the Fall of
2007, when a large test buoy sank, and impending bad weather was given
as a reason not to remove it from the seabed until Spring or Summer of
2008.

**COMMENT NO. 2:** We strongly object to the secrecy provision in the
draft standard lease form at 73 Fed Reg. 21368, April 21, 2008 (Section
11, "Confidentiality"). The draft section says that

> To the extent permitted by applicable law, in particular the Freedom
> of Information Act and implementing regulations, Lessor \[the MMS\]
> shall keep confidential all information, including but not limited to
> studies, surveys, or test reports, received from Lessee \[e.g., PG&E\]
> for the duration of the lease term and three years thereafter, unless
> disclosure is agreed to by the lessee(s) and all relevant third
> parties.

In its place, we urge that that the following language be used:

> Unless its release is prohibited by federal law, Lessor \[the MMS\]
> shall make public all information received from the Lessee, including
> but not limited to studies, surveys, and test reports.

MMS's draft language is objectionable for two reasons: 1) disclosure of
the information is required by the Open Government Act of 2007, and, 2)
secrecy in the context of alternative energy development on the OCS is
bad public policy.

**1) Nondisclosure is contrary to the Open Government Act of 2007:**
Pursuant to the "Open Government Act of 2007, " S. 2488 (110^th^ Cong.,
1^st^ Sess.), which was signed into law by President Bush on December
31, 2007, the official policy of the U.S. government is a strong
presumption in favor of disclosure. Sections 2(3) and (4) of the Open
Government Act of 2007 provide that "the Freedom of Information Act
establishes a 'strong presumption in favor of disclosure' as noted by
the United States Supreme Court in [United States Department of State v.
Ray]{.underline} (502 U.S. 164 (1991), a presumption that applies to all
agencies governed by that Act," and "'disclosure, not secrecy, is the
dominant objective of the Act,' as noted by the United States Supreme
Court in [Department of Air Force v. Rose]{.underline} (425 S.S. 352
(1976))."

**2) Secrecy is bad public policy:** The affected public is intensely
interested in wave energy projects. On January 19, 2008, the City of
Fort Bragg and the County of Mendocino organized a full-day "Wave Energy
Forum," which has since been described as "the most important ocean
energy meeting to date in California." Representatives from wave energy
proponents, federal, state, and local agencies, and community and
fishing groups, all made presentations. The MMS was represented by
Maurice Hill, Alternative Energy Coordinator, Office of Alternative
Energy Programs, MMS, Camarillo, California. Public participation in the
process and accommodation of stakeholder interests were key topics
addressed by all the presenters.

Since the Wave Energy Forum, the proposed wave energy projects have been
the topic of several public hearings held by the Mendocino County Board
of Supervisors and the Fort Bragg City Council. Stakeholder groups such
as the FISH Committee and the Ocean Protection Coalition have organized.
Both the Mendocino County Board of Supervisors and the Fort Bragg City
Council have formed ad hoc committees on wave energy. A public
demonstration and march calling for a moratorium on wave energy was held
in Fort Bragg on March 29, 2008.

A crucial issue identified by all affected parties is information, of
which there is precious little. With respect to wave energy, little to
nothing is known about the technology itself (including whether it will
work at all, much less whether its operation withstands cost/benefit
analysis), its environmental and economic impacts, its safety
implications, and last but not least, its displacement of existing uses
of the ocean such as fishing. At these initial stages of the process,
the only public benefit from MMS issuing leases for testing on the OCS
is to develop this information, which is of vital interest to the
affected public, and will only be meaningful if it is disclosed.

We also note that FERC's preliminary permits issued for the PG&E
projects on March 13, 2008, do not purport to keep information developed
under the permits confidential. FERC also makes the preliminary permit
applications themselves public on its Internet site. In contrast, we
have not even been able to obtain copies of PG&E's lease nominations to
MMS. PG&E refused the written request of the FISH Committee for copies;
MMS declined to make a copy available voluntarily, and a Freedom of
Information Act request to MMS is still pending.

This type of secrecy fosters an unnecessary atmosphere of suspicion and
distrust, and makes meaningful public involvement impossible. We believe
that the public is entitled to routine disclosure of not only the lease
nominations themselves, but also the "studies, surveys, and test
reports" that will be developed under the MMS leases. Access to
information is simply essential to stakeholder understanding and
participation in wave energy development.

In general, we strongly encourage MMS to establish Internet docket sites
for each of its OCS alternative energy leases so that the public will
have access to relevant information, and can provide comments at
appropriate times. Specifically, the "Project Plans" required by Section
8 of the draft lease terms, and the "Progress Reports" required by
Section 10 of the draft lease terms, should be publicly posted to the
Internet, along with all "studies, surveys, inspections or test reports"
referenced in Section 10. Raw data, analyses, and computational models
should be made available upon request.

**Comment No. 3:** Numerous fisheries take place in the geographical
areas of the PG&E leases. We hereby request that the areas of those
fisheries be mapped and that wave energy technology testing be excluded
from those areas. The FISH Committee will provide the information
necessary for mapping. General information that has been collected to
date is described below. This information focuses on fisheries that take
place in MMS jurisdiction seaward of three miles, and omits information
on ocean fisheries inside three miles, shoreside fisheries, recreational
abalone fisheries, and sea vegetable harvesting, which are also
important topics.

**1) Commercial Fisheries**

[Pink Shrimp]{.underline}: A pink shrimp fishery occurs in the Mendocino
WaveConnect project area from the three-mile line seaward to 75 fathoms,
from 39°30′ N. latitude to the north. Placing buoys in this area would
disrupt pink shrimp harvesting with the only gear that is used (trawl).
It could also disrupt pink shrimp spawning habits. In the Humboldt
WaveConnect area, pink shrimp trawling occurs in a portion of the area
from April 1 to October 31. Pink shrimp spawn in this area during the
rest of the year.

[Groundfish trawl gear]{.underline}: The area from the three-mile line
seaward to the western boundary of the Mendocino WaveConnect project
area is used by trawl fisheries to harvest petrale sole, English sole,
sanddabs, skates, and rockfish. The Humboldt WaveConnect area, from 40
fathoms to the seaward border of the site, is used mainly in the spring
and summer months by the trawl fisheries to harvest petrale sole,
English sole, sanddabs, Dover sole, skates, sablefish (black cod), and
lingcod.

[Dungeness crab]{.underline}: Starting at the northern end of the
Mendocino WaveConnect project area, the crab fleet fishes from three
fathoms out to 60 fathoms, from Kibesillah Rock down to Laguna Point,
and from Laguna Point south to 39°22′ (Casper), from 30 fathoms to 60
fathoms. In the Humboldt WaveConnect area, the whole site is used by the
crab fleet during the season from December 1 to July 15. Most of the
activity occurs from the inside boundary out to 50 fathoms.

[Slime eel (hagfish)]{.underline}: This fishery utilizes the outer area
of the Humboldt WaveConnect site.

[Salmon]{.underline}: The commercial fleet trolls in both permit areas
during their seasons.

[Nearshore fisheries]{.underline}: The nearshore fishery area off Fort
Bragg runs from Cleone to Beaver Point, from the shore out to 15
fathoms, in rocky areas throughout. Crabbing takes place off Pudding
Creek, Hare Creek, and Ten Mile Beach, from 5 fathoms out to 40 fathoms.

**2) Recreational Fisheries**

The general area for sport fishing in the Mendocino area extends from
the Point Cabrillo Lighthouse south of Fort Bragg to Ten Mile River to
the north. Fishing takes place in approximately 100-350 foot depths,
which are about 0.5 mile to 4.5 miles offshore. Some specific fisheries
of concern are:

[Recreational crab]{.underline}: Ten Mile Beach, Pudding Creek, Hare
Creek (same as commercial, only a little shallower water for sport
crabbing).

[Salmon]{.underline}: Recreational anglers out of Noyo Harbor range as
far south as Point Arena and as far north as Punta Gorda, and seaward
out to 15 miles offshore. Salmon can be caught from shore but are most
frequently caught at or near the 60 fathom line (360 feet). 

[Rockfish]{.underline}: Like salmon, recreational anglers out of Noyo
Harbor can range from Pt. Arena to Punta Gorda. Most of the boat angling
effort is concentrated between the Point Cabrillo Lighthouse, to the
south, to the MacKerricker State Park (Cleone reef) to the north. By
law, recreational rockfishing occurs only within depths shallower than
120 feet. However, the Recreational Fishing Alliance has an Exempted
Fishing Permit that allows fishing for midwater species in waters deeper
than 150 fathoms (900 feet), which is more than nine miles offshore.
This fishery may be available to all recreational anglers in years to
come.

[Albacore]{.underline}: Traditionally, anglers focus on the area around
the Noyo Canyon, about 15-25 miles from port.

[Halibut and other flatfish]{.underline}: Anglers target the areas off
Pudding Creek, Ten Mile Beach, the Caspar High Spot, and other sandy or
mud flat bottom areas for these species. 

[Humboldt squid]{.underline}: There is a charter boat fishery for
Humboldt squid that fishes year round throughout the coast.

In addition to the ocean fisheries, whale watching tours are also a
mainstay of the local tourist industry, and could be adversely affected
by wave energy technology testing on the OCS.

**Comment No. 4:** The Marine Mammal Protection Act generally prohibits
the take of marine mammals unless a statutory exception applies. 16 USC
1371(a). "Take" is defined broadly to include acts that have the
potential to injure a marine mammal in the wild, or have the potential
to disturb a marine mammal in the wild by causing disruption of its
behavioral patterns. 16 USC 1362(18). Incidental takes of marine mammals
without appropriate authorization are illegal. See, [Kokechik
Fisherman's Assoc. v. Sec'y of Commerce]{.underline}, 839 F.2d 795 (D.C.
Cir. 1988). Incidental takes of marine mammals in non-fishing activities
such as wave energy technology testing must be authorized by a Letter of
Authorization issued by the National Oceanic and Atmospheric
Administration, National Marine Fisheries Service (NOAA Fisheries). 16
USC 1371(a)(5)(a); 50 C.F.R. 216.104.

There is no question that various species of marine mammals, including
whales, sea lions, and seals, frequent the areas of the PG&E projects
off Northern California, and that incidental takes of marine mammals in
these areas is reasonably foreseeable. Therefore, MMS and the lease
applicants must apply for an MMPA Letter of Authorization (LOA) from
NOAA Fisheries before a lease can be issued. [See]{.underline}, e.g.,
FERC Docket No. P-12751-000, NOAA Comment on Filing filed Sept. 21,
2007. MMS should make certain that this requirement is enforced.

**Comment No. 5:** We believe that the draft lease terms are inadequate
to protect existing human uses of the ocean, particularly fisheries. For
example, Section 3, "Reservations to Lessor," provides that "Lessor
\[MMS\] reserves the right to authorize other uses on the leased area
that will not unreasonably interfere with activities authorized under
this lease." The phrase "unreasonably interfere" implies that the lessee
is granted the right to preempt existing uses, including fisheries, and
that MMS will aid and abet the lessee by preventing interference by
other users in the area. The language should be changed to say that MMS
will protect existing uses in the area, including fisheries, and will
prevent interference with them by the Lessee.

**Comment No. 6:** Section 4, "Effective Date and Lease Term," provides
for a 5-year lease term. As stated above, we believe that issuance of
any limited leases should await promulgation of MMS's final regulations.
If limited leases are issued before that, they should provide for a
lease term no longer than it takes MMS to promulgate final regulations.

**Comment No. 7:** Section 6, "Rentals," will require annual rental
payments of \$3/acre. It has been pointed out that total rental payments
under this provision will probably be less than the cost of a
one-bedroom apartment in Manhattan. This is far too little for use of
our valuable public water resources.

**Comment No. 8:** A provision should be added to the "Project Plan"
section stating that MMS will make the Project Plan public as soon as it
is received, and will accept public comment for 30 days after the
Project Plan has been posted on the Internet site established by MMS for
this purpose.

**Comment No. 9:** A provision should be added to the first paragraph of
Section 9, "Compliance," requiring the Lessee to file copies of all
necessary governmental approvals with the MMS before commencing
activities under the lease.

The second paragraph of Section 9, "Compliance," is vague and ambiguous,
and the standards set forth there may actually differ from applicable
laws. For example, how does "undue harm to marine life" relate to the
specific provisions of the Marine Mammal Protection Act and the
Endangered Species Act? This problem can be cured by adding an
introductory phrase that says "[In addition to the specific requirements
of applicable laws]{.underline}, Lessee further agrees that" etc.

**Comment No. 10:** Section 18, "Removal of Property and Restoration of
the Leased Area on Termination of Lease" gives the Lessee up to one year
after the lease ends to remove its property and restore the area. We
believe that this is far too long, and that the lessee should be
required to remove property and complete restoration immediately after
the lease ends in order to minimize physical impacts and other
environmental consequences of leaving derelict property on the seabed.

**Comment No. 11:** The issue of navigational safety is not addressed
anywhere by MMS, although "Exhibit 'B'" on "Technology Testing and
Demonstration Activities" attached to the draft lease authorizes
"constructing, installing, using, upgrading, maintaining, and removing
buoys, turbines, or other devices." Navigational safety is a critical
issue for fishermen and other vessel operators off the Mendocino and
Humboldt coasts. The weather in the area can change in an instant,
leaving vessels with no choice but to navigate through bad weather. In a
gale, if a fishing vessel had to change course to avoid a wave energy
device, disaster could ensue. MMS should specify in its regulations and
leases how the issue of navigational safety will be addressed, and
provide for public input.

Sincerely,

Elizabeth R. Mitchell

17555 E Kirtlan Way

Fort Bragg CA 95437

707-962-0617

Bethmi@mac.com

[^1]: We were so advised on May 6, 2008, by Maurice Hill, MMS, at a
    presentation to the Fort Bragg City Council's Ad Hoc Wave Energy
    Committee