California Coastal Commission Concurs With BOEM’s Consistency Determination for Morro Bay WEA : Clean Energy Law Report : Renewable Energy Lawyer and Environmental Law Attorney : Latham & Watkins Law Firm

Go to Source June 17, 2022

The action marks the clearance of another significant hurdle toward BOEM’s offshore wind lease sales in federal waters offshore California, anticipated to occur this fall.

By Nikki Buffa, Jennifer K. Roy, Janice M. Schneider, Brian McCall, and Julie Miles

In the first half of 2022, the Bureau of Ocean Energy Management (BOEM) has moved swiftly toward the first offshore wind lease sales in California, currently anticipated to occur in the fall. BOEM has identified a total of five proposed leases across two areas — the Humboldt Wind Energy Area (WEA) and the Morro Bay WEA. In April 2022, BOEM issued a Consistency Determination for the Morro Bay WEA — as required by the National Oceanic and Atmospheric Administration Federal Consistency Regulations — and, just last week, the California Coastal Commission (the Commission) conditionally concurred with this determination.

BOEM is authorized by federal law to issue leases, easements, and rights of way to allow for renewable energy development on the Outer Continental Shelf and, in doing so, is required to coordinate with relevant federal agencies and affected state and local governments to ensure that renewable energy development takes place in a safe and environmentally responsible manner. In its Consistency Determination, BOEM focused on the impacts of lease site characterization activities on coastal resources — not on the types of impacts that future construction and operation of offshore wind  projects could have — and concluded that the leasing activities planned for the Morro Bay WEA, such as geophysical, geotechnical, and biological surveys and site assessment activities, are “consistent to the maximum extent practicable” with the California Coastal Management Program.

At its June 2022 meeting on the Morro Bay WEA, the Commission considered whether to concur with BOEM’s Consistency Determination. The Commission Staff Report recommended that the Commission conditionally approve the Consistency Determination, subject to BOEM’s agreement to adopt seven conditions:

• Conditions 1, 2, and 3 aim to protect marine habitats and sensitive species.
  • Condition 1 requires BOEM to work with Commission staff to ensure that lessees’ survey plans and Site Assessment Plans (SAP) are coordinated, consistent, minimize impacts to coastal resources, and provide the data and information necessary for analysis of future consistency certifications. Condition 1 also requires lessees to comply with marine wildlife protection and monitoring measures, to prepare a site-specific spill prevention and response plan and a critical operations and curtailment plan, and to provide an anchoring plan.
  • Condition 2 requires avoidance of intentional contact with hard substrate, rock outcroppings, seamounts, or deep-sea coral/sponge habitat.
  • Condition 3 requires a vessel speed restriction of no more than 10 knots for survey and transit activities.
• Condition 4 requires BOEM to ensure safe navigation through the lease areas.
• Conditions 5 and 6 require engagement with environmental justice communities and federally recognized and non-federally recognized Native American tribes on all elements of the lessees’ project development processes, including a workforce plan, survey plan, SAP, and COPs. Condition 6 also requires lessees to develop communication protocols in the event of an unanticipated discovery of a potential tribal resource.
• Condition 7 requires lessees to have an independent fisheries liaison that will coordinate with affected commercial and recreational fishing communities and harbor districts to ensure that surveys and site assessment activities avoid conflicts with fisheries. Condition 7 also requires BOEM to work with state agencies, fishermen, and offshore wind developers to develop a statewide strategy for avoidance, minimization, and mitigation of impacts to fishing and fisheries.

At the meeting, BOEM presented an overview of the lease conditions with which lessees will be required to comply, including developing communication plans with tribes, state and federal agencies, and fisheries to ensure that key stakeholders remain informed and engaged during the project development process. Lessees will also be required to make every reasonable effort to enter into project labor agreements for the construction stage of any proposed offshore wind project for the leased area.[i]

On June 8, 2022, the Commission conditionally concurred with BOEM’s Consistency Determination. Notably, public comment during the Commission’s process, including comment from the environmental community, was largely in support of a concurrence or conditional concurrence by the Commission.

The decision regarding the Morro Bay WEA follows a similar decision made with regard to the Humboldt WEA earlier this year. Specifically, in January 2022, BOEM issued a Coastal Consistency Determination for the Humboldt WEA, and in April, the Commission conditionally concurred with this determination. Given the Commission’s power and authority over coastal development, these concurrence decisions mark significant hurdles cleared in the process to reach BOEM’s planned lease auction for the Morro Bay and Humboldt WEAs this fall.

[i] Latham’s Client Alert analyzing the BOEM Proposed Sale Notice, and updated potential lease provisions can be found here.