In accordance with notice to members of the Rhode Island Coastal Resources Management Council’s Ocean Special Area Management Plan (SAMP) subcommittee, a meeting of the subcommittee was held on Tuesday, June 15, 2010 at 5 p.m. at the University of Rhode Island (URI) Bay Campus CACS Room 108 in Narragansett, R.I.

MEMBERS PRESENT
Michael M. Tikoian, Chairman
Paul Lemont
Don Gomez

STAFF PRESENT
Grover Fugate, CRMC Executive Director
Laura Ricketson-Dwyer, CRMC Public Educator and Information Coordinator
Brian Goldman, CRMC Legal Counsel

OTHERS PRESENT
Jen McCann, URI CRC RISG; Kate Manning Butler, URI CRC; Michelle Armsby, URI CRC; Wendy Waller

 

Call to order.  M. Tikoian called the meeting to order at 5:03 p.m.

Item 1. Approval of previous meeting minutes: M. Tikoian asked for a few minutes to review the minutes. The minutes were approved unanimously.

Item 2. Updates: G. Fugate gave the Subcommittee an update on the Ocean SAMP. There was no change with the avian studies. No change with essential fish habitat mapping, G. Fugate said, with maps currently being finalized. There was a public workshop on the fisheries chapter, and no substantive comments were received there, he said. Concerning Section 106, G. Fugate said the work plan has been approved and is awaiting DWW to engage a consultant. Most of it, G. Fugate said, is being done by the USACE. Concerning the MMS Atlantic Governors’ group, the MOU has been signed. The plans are being developed on the RI pilot project and there will be a meting within the next 4-5 weeks, he said. There were no changes with the EPA or EQC, G. Fugate said. The Governor’s office is reassessing the Massachusetts MOU, he said. There were no major comments at the public workshop held on the renewable energy chapter. The SAMP team is now working on the new policy chapter, trying to ensure that policies are consistent throughout and identifying gaps, G. Fugate said. The Introduction chapter, brought before Subcommittee already, needs to be updated and that’s in progress, he said. Changes are still being made to the renewable energy chapter, he said.

Item 3. Financial/Progress report: K. Manning Butler reported financial activity ending April 30, 2010 for approval. EDC activity for the period ending April 30 was $434,364 in total monthly expenditures. To-date, total invoices billed to the EDC were $4,388,694 and total paid by the EDC to URI is $4,274,515.15, she said. The DOE award was received and is in-progress and URI is no longer on a Dean’s pledge, she said. Total DOE activity for the month was $77,776 and cumulative activity was $217,818, she said. Total Ocean SAMP project activity was $5,339,204 for both DOE and EDC Ocean SAMP funds. K. Manning Butler said that, in addition, expenditures through May 31, 2010, for both the EDC Ocean SAMP funds and DOE funds were $4,643,159.79 and $279,823.04 respectively. This leaves fund balances of $731,073.39 for EDC funding and $232,425.67 for DOE funding, she said. The majority of the remaining funding will be expended by July 31, she said.

M. Tikoian asked how the final document will look, and J. McCann said that it would be thick and that hard copies would be made (maybe 50 or so). The team is also putting together a 20-30 page executive summary with a CD of the SAMP in it, will be distributed widely and will be on the CRMC web site, she said. The majority of the people will get the smaller version and it will be online and hyperlinked, J. McCann said, adding that the CRMC needs to finalize document before the CDs and hard copies are produced. M. Tikoian asked how online security will be established. J. McCann said that the public will get a PDF version and the CRMC will have a word document so changes can be made as needed. D. Gomez asked if changes were to be expected. G. Fugate said that it would most likely be within the first year or two, when gaps might be discovered and remedied. G. Fugate said the SAMP document will be on a private server. P. Lemont made a motion to approve the fiscal report. D. Gomez seconded it; the motion passed unanimously. J. McCann said that the team was a bit late in submitting the latest period progress report, which covers January through March. M. Tikoian asked if the fiscal report is included in the period progress report, and K. Manning Butler said it was separate. P. Lemont made a motion to approve both the progress report and the financial report. D. Gomez seconded it. P. Lemont asked why the report wasn’t submitted earlier and J. McCann said that it was going to be on the last meeting agenda, but wasn’t put on the agenda. The report wasn’t due until mid-May, so J. McCann said that it was only a little late. P. Lemont questioned whether it would cause a problem at EDC. J. McCann said that it would not. The motion to approve passed unanimously.

Item 4. Renewable Energy policies discussion : There was some confusion on the different versions of the chapter, and B. Goldman said that he was working from the June 1 edition, an older version of the chapter. B. Goldman said he wanted an opportunity to go through the version that was sent out and presented at the Subcommittee meeting. It’s the bulk of the enforceable policies for this SAMP, he said, and voiced his objection. G. Fugate said he had suggested one more meeting on this section of the chapter because of the changes that are ongoing. M. Tikoian said to J. McCann that because she wanted to go through the chapter paragraph by paragraph, maybe the timing was not right in light of the confusion. J. McCann said that M. Armsby’s presentation would go through the section in that way. M. Tikoian asked for B. Goldman to make the decision. J. McCann suggested that the presentation go forward; the ideas in it, she said, have not changed and J. McCann said it might be beneficial to the Subcommittee. G. Fugate said that in the more recent version of the chapter, the team noticed that the chapter was looking at the whole analysis of where to put wind farm, but that there was no map of the TDI data explaining the analysis, so it was added. The overall structure hasn’t changed, he said. B. Goldman said he understood the chapter, and that he thought he had the most recent version. B. Goldman suggested that G. Fugate or L. Ricketson-Dwyer needed to inform the members which version is the latest. M. Tikoian said he didn’t want multiple versions of one chapter. G. Fugate said that the reason behind all of the versions was to keep the Subcommittee abreast of the changes. M. Tikoian suggested the team only give the Subcommittee one finalized version. G. Fugate said that would be done, but added that if the Council approves the chapter the night of the public hearing, then the final version will go out. J. McCann said that June 26 was end of the public comment on this chapter and then the team would review the comments and, as with all other chapters, make edits. J. McCann said that the red-lined version along with an explanation of all the changes would be submitted to the Council the week before the public hearing. The team is sharing this version of it, knowing there will be other versions, she said. B. Goldman said that if the chapter the CRMC went out to notice with is being superseded by other versions, it calls into question whether the public has been properly noticed. B. Goldman questioned whether the chapter would have to be re-noticed if the team makes all of the changes. J. McCann said that all of the changes will be identified using the red line and the detailed memo. M. Tikoian said that on July 13 the Council would get a big stack of paper with red lines showing all of the changes. J. McCann said it would be given to the Council a week before the meeting. M. Tikoian said that it meant they’d get all of that a week before the meeting, and J. McCann said yes. M. Tikoian commented that the Subcommittee would be able to view it earlier than the rest of the Council, and asked if it could be delivered sooner than a week before. J. McCann said that the timeline gives the team less than 14 days to receive comments and suggested changes and to make them, and that they would do it as fast as possible, but that the team wouldn’t know what to expect in terms of comments or volume. M. Tikoian commented that this is the Council meeting scheduled for July 13 and 14, and said that given that schedule, that the delivery of the chapter the week before the meeting was fine. M. Tikoian asked the other members how they wanted to proceed, and D. Gomez said he wanted to hear the presentation.

M. Armsby – Chapter 8: Renewable Energy and Offshore Development policy presentation – M. Armsby reviewed the policy section of the chapter with the Subcommittee, section by section.

Regarding the Application and Review Process: M. Tikoian asked during the application and review process, at what point does a proposed project go before the Council. G. Fugate said during the review of the construction and operations plan. M. Tikoian said that because these applications are so massive, wouldn’t some of them go before something akin to a zoning board like a dual process? P. Lemont said that it would go to staff in that case. G. Fugate said that there are two Council approvals for each application that might come in – during the review of the construction and operation plan and then after the detailed design/CVA review process. A permit is issued after the first approval of the construction and operations plan. However, the Council has to approve both in order to approve construction, he said. It’s under detailed design, fabrication and installation reports. M. Tikoian questioned why any projects would be permitted before that point. G. Fugate said that the design and engineering costs are huge, and most companies wouldn’t want to spend the money to do that before obtaining a permit. M. Tikoian asked if the lease issue was the MMS lease, and G. Fugate said it was the state lease. M. Tikoian commented that it would come back before the Council again prior to the approval of the lease. B. Goldman commented that if everything was reviewed by the Council – each of the items – and the only thing that isn’t is the site assessment, what he wanted to bring to the Council’s attention was that if something happens in the site selection process, it is G. Fugate’s call alone, and B. Goldman didn’t think the Council could overrule him. B. Goldman said he could picture a scenario where G. Fugate makes a call where there is disagreement and there’s no recourse. G. Fugate said that otherwise, the Council would be engaged in very technical discussions related to pre-application site assessment plans such as whether avian studies were acceptable. If an applicant or other interested party was unhappy, they could appeal with the Council hearing issues that may challenge the merits of a permit the Council doesn’t have before it and the Council’s ruling. M. Tikoian said that the Council wouldn’t argue it; the Council would be listening to G. Fugate argue it. G. Fugate said that if the Council had to approve the site assessment plan it opens up the proposed project to objection by others before there is even an application. P. Lemont said that if G. Fugate has the authority on the site selection process, that there has to be an appeal. B. Goldman said that if the Subcommittee adopted this giving the executive director the decision-making authority, that decision goes to court. If the Subcommittee gives the Council the authority, the Council can make the determination, B. Goldman said. B. Goldman told the Subcommittee that by saying “executive director,” you take yourselves out of the process. P. Lemont said that if the Council involved itself in this, it could go on for days. P. Lemont said he would like someone non-political who can make the decision, and an interim step. M. Tikoian said that would be fine. B. Goldman said that the Council can say that the Council is the ultimate authority and the members can delegate to G. Fugate like it does on almost all things. M. Tikoian said that his concern is that it’s not transparent. G. Fugate said that the site assessment pan for the proposed eight wind turbines is almost completed. Therefore, one way to drag out the process is to drag out the site assessment, he said. M. Tikoian said he disagreed; that’s a scare tactic, he said. G. Fugate disagreed. M. Tikoian said that any unhappy party could do the same thing to G. Fugate and tie up the application in court. M. Tikoian said further discussion was needed because he didn’t want it as written.   Regarding the Joint Agency Working Group – federal, state agencies, tribal representatives that have regulatory responsibility related to the proposed project – P. Lemont said that assuming someone wanted to put up six wind turbines, that all of these groups would be involved. M. Armsby clarified that the groups would already be involved from working on the NEPA process. P. Lemont said that as a developer, all he’d see was potential roadblocks, and commented that while it was necessary, he wanted to see that the CRMC is helping people through the process, either to approve or reject, as quickly as possible. G. Fugate said that it’s the same level of involvement as with a residential dock. B. Goldman said that this was one of his big picture items: G. Fugate is correct that these agencies are already involved, but the way B. Goldman said he read “joint agency working group” was that if one of these agencies deem that a piece of information is necessary, they have a veto over the Council on the state permit. P. Lemont said that they would cede to lead agencies; that those other groups would recognize CRMC as the lead and would let the Council make the decision. P. Lemont voiced his concern over tying up the permitting process for months and months, where an applicant might just walk away frustrated and empty-handed. B. Goldman said that he was going to suggest that the policy section read that the Council will work with the entities to the extent practicable. M. Tikoian said he was looking at two different versions of the chapter where the power has been transferred from the Council to the executive director. M. Tikoian said it’s too much power for one person. P. Lemont said he disagreed. D. Gomez asked why it was written as Council originally and then changed to executive director. G. Fugate explained that originally it read executive director, and then in another version the team inserted Council, but that this is a pre-application process and the Council doesn’t traditionally get involved in that without an application before it. G. Fugate said that the team was trying to keep the Council insulated from people using the Council to slow the process down by appealing. D. Gomez said he understood, but that B. Goldman’s point was that the Council will designate, and what the Council does is designate the executive director to make the decision. G. Fugate said that the same thing happens with aquaculture. M. Tikoian added, however, that the Council gave the executive director that authority. B. Goldman said that he thought that if the Council disagreed with a decision G. Fugate makes, the Council can’t overturn it. J. McCann said that all of the track changes are shown so that the Subcommittee can see changes to the section. G. Fugate said that he, as the executive director, has been the one involved with the site selection process, so the policy section is following that. M. Tikoian commented that he assumed staff will be trained on the SAMP process. It’s going to have to go beyond a single person, he said.

Regarding the Site Assessment Plan (SAP) – G. Fugate said that if there were structural components like a met tower, installed in state waters, that those would have to go back before the Council under a separate review process. Regarding the Construction and Operations Plan (COP) – D. Gomez asked for clarification that an application would have to come before the Council according to the COP.  G. Fugate said that there are two approvals before the Council prior to construction. D. Gomez said that a Council designee would work best, and that it was similar to the process for all other things. P. Lemont asked what the oil spill response plan had to do with the SAMP process. M. Armsby said that the whole SAP and COP process had been adopted from the MMS regulations, so it has to do with containing a lubrication oil spill from the large transformers that would be out there.

Regarding the Certified Verification Agent (CVA) – M. Armsby said this was also from MMS regulations. This involves third-party reviewers that certify the design, fabrication and installation of the facility adhere to engineering practices, M. Armsby said. B. Goldman said that in the document, halfway through the CVA section the wording changes from exclusively CVA to CVA or project engineer. G. Fugate said that it was on purpose, and that the team didn’t want to give the applicant the option of opting out. M. Armsby clarified that the wording should just be CVA.

Regarding a flow chart of the COP process in detail – B. Goldman said he noticed a “shall.” He asked if these reports will be deemed necessary information for consistency review. G. Fugate said he was not sure they would be. M. Tikoian asked where the section discusses the COP having been submitted to the CRMC, does the CRMC have to wait for the USACE to approve it. G. Fugate said no; the applicant would submit it at same time to both agencies. B. Goldman said he noticed a number of occasions after COP approval where it states “the applicant” instead of “assent holder,” and at that point in process, they’d be an assent holder. D. Gomez asked what the CVA’s relationship with staff would be. G. Fugate said it isn’t specified because it would be outlined in the assent. M. Tikoian asked if the MMS defines the CVA and their qualifications. M. Armsby said yes, which was where the language was obtained. D. Gomez asked if a CRMC staff person should be tasked with handling the CVA process. G. Fugate said that it’s not something within the expertise of the CRMC staff to control. M. Tikoian commented that it would be prudent to hire someone to handle it. G. Fugate said that it would be an entire firm of 20 or 30 people looking at it, but that he didn’t have the names of any of them at present. G. Fugate said that it’s an added level of safety that the oil and gas industry doesn’t use. M. Tikoian commented that the language reads executive director. M. Armsby said that this COP section should be all “Council,” and that it would be corrected.

Regarding Preconstruction Standards – B. Goldman asked what kind of performance bonds would be used. G. Fugate said none have been seen yet, so it’s unclear, but that the cost for removal of the structure could be estimated. G. Fugate said that it was built in that the bond gets re-evaluated every three years.

Regarding Recommended Targets (aimed at reducing underwater noise and electromagnetic fields) – D. Gomez asked if this can this be used for any other technology. G. Fugate said that this would work for other applications, including LNG.
Regarding the joint agency working group, M. Tikoian asked if they approve and then it has to go back to the Council. M. Armsby said the group is not meant to approve. B. Goldman said that was his concern. M. Tikoian said that on one page it reads “approve.”  B. Goldman suggested “recommend.” M. Tikoian said he wanted to look at the section again before the Subcommittee voted on it, and said he especially didn’t want the executive director language. B. Goldman asked if there was a June 1 version. M. Armsby said the current version included those changes. B. Goldman said it might make sense to read it all over again. G. Fugate said the Subcommittee would receive the newer version.

M. Tikoian referenced page 2 of the June 10 version that the applicant will fund a mitigation fund. Section 860.1 #4 is vague, he said, and asked for some dollar figures or guidance. G. Fugate said that there aren’t any figures. We know there will be mitigation, but not sure how much, he said. B. Goldman suggested it read “case by case.” Page 5 – areas of preservation – “Council shall avoid any offshore…” M. Tikoian suggested using “prohibit” instead. G. Fugate clarified that “avoid” because if there are prohibitions in the section, there is no permit history and flexibility is needed. G. Fugate added that avoidance is the primary policy. M. Armsby said that in areas of particular concern it’s “avoid, minimize, mitigate.” In areas of preservation it is “prohibit,” she said. M. Tikoian commented on the lease terms, and suggested the period for a lease renewal be changed from 2 years before the end of the lease to five years (pg. 5,  #6 of June 10 version). M. Tikoian suggested adding criteria as to when the CVA was hired, so that the Council doesn’t get blamed for costing the developer more. G. Fugate explained that since this is a first, the goal was to be flexible, and that the Council could elect to hire another CVA to look at the initial CVA. M. Tikoian asked if the assents would be transferrable. G. Fugate said that the policies state that reassignment of the assent must be approved by the Council. M. Tikoian asked if an applicant could sell the lease. G. Fugate said that was up to the council. B. Goldman said it would be a condition of the assent. G. Fugate said that it was in the regulations, and that he’d find the reference. M. Tikoian referenced Section 860.3 on reporting requirements, and that the Council “shall facilitate the joint agency working group.” M. Tikoian asked if that was correct. P. Lemont asked why the Council wouldn’t we take the lead. G. Fugate said it does say that, and that the CRMC can take the lead from the state side. B. Goldman suggested adding “to the extent practicable.” M. Tikoian pointed out a numbering issue, and M. Armsby said she’d renumber it.

M. Tikoian said that the next meeting OSAMP Subcommittee meeting would be on July 1 at 5 p.m. M. Tikoian asked if there were any more chapters, and G. Fugate said only new policies and the introduction again. The Subcommittee decided to go over the renewable energy policy section again at the July 1 meeting, and the second Subcommittee meeting in July, the overall policy chapter. D. Gomez suggested adding flow diagrams to the chapter to assist in breaking down the process. Regarding the CVA, D. Gomez asked that the applicant would notify the CRMC, and G. Fugate said the Council places the onus on the applicant to hire an environmental compliance monitor.

The meeting adjourned at 6:50 p.m.

 

Respectfully Submitted,

Laura Ricketson-Dwyer

CALENDAR INDEX