Minutes

Semi-Monthly Meeting — Full Council — Tuesday, May 25, 2021; 6:00 p.m.
Zoom Meeting

 

In accordance with notice to member of the Rhode Island Coastal Resources Management Council, a virtual meeting was held on Tuesday, May 25, 2021 at 6:00 p.m. utilizing Zoom Meeting, and Council members participating remotely.

Members Present
Jennifer Cervenka, Chair
Raymond Coia, Vice Chair
Donald Gomez
Ronald Gagnon, RIDEM
Jerry Sahagian
Trish Reynolds
Lindsay McGovern

Staff Present
Jeffrey Willis, Executive Director
James Boyd, Deputy Director
Anthony DeSisto, Chief Legal Counsel
Ryan Moore, Moderator
Lisa Turner, Recording Secretary
Cindy Tangney, Court Reporter

1. CALL TO ORDER

Chair Cervenka called the meeting to order at 6:08 p.m. and identified the participants of the meeting, Council Members, Staff members, and applicants. The Chair stated that the meeting would be recorded. Chair Cervenka introduced new Council member Lindsay McGovern.

2. Ryan Moore, Meeting Moderator, briefed participants on the meeting housekeeping items.

3. APPROVAL OF THE MINUTES OF THE PREVIOUS MEETING

Chair Cervenka called for a motion regarding the minutes for the Tuesday, May 11, 2021 Semi-monthly Meeting.

Motion to approve the minutes of Tuesday, May 11, 2021.

Motion: Vice Chair Coia
Second: Ms. Reynolds

Roll Call Vote: Mr. Sahagian and Ms. McGovern were not in attendance:
Vice Chair Coia Aye
Mr. Gagnon Aye
Ms. Reynolds Aye
Mr. Gomez Aye
Mr. Sahagian Abstain
Ms. McGovern Abstain
Chair Cervenka Aye

Motion carried to approved minutes from 05-11-2021 meeting.

4. SUBCOMMITTEE REPORTS:

No subcommittee reports this evening.

5. STAFF REPORTS:

No staff reports this evening.

6. Discussion and action on federal consistency decision for South Fork Wind, LLC Coastal Zone Management Act consistency certification; CRMC File 2018-10-082; offshore wind energy facility in federal waters.

Chair Cervenka explained the order of the meeting:

• Introduction of process Mr. Willis and Mr. DeSisto
• CRMC Staff Report by Mr. Boyd
• Robin Main, Counsel for Developer for presentation
• Marissa DeSautel, Counsel for Fishermen’s Advisory Board for presentation
• Public Comment

Jeffrey M. Willis, spoke to the Ocean Special Area Management Plan (OSAMP) and the subsequent review process since submission of application for Federal Consistency

• Application for Federal Consistency review came before CRMC in 2018 when the Bureau of Ocean and Energy Management (BOEM) released its Notice of Intent (NOI) to issue the Construction and Operation Plan (COP) for the South Fork Wind project which triggered a review of the state coastal program has the ability to review projects in federal waters to determine certification as supplied by developers is consistent within coastal waters.
• 180 day deadline association with Federal Consistency review and if not completed within that timeframe the determination is presumed Consistent. By mutual agreement with the developer, to reserve the review timeframe, CRMC has entered into seven stay agreements and will likely receive and 8th stay agreement this evening obligating CRMC to make a decision by June 22nd.
• Ocean SAMP was developed for the review of potential offshore wind energy projects and to do it in a balanced review process encompassing the review of proposed project with the protection of the State’s natural resources and users of those resources. One avenue is through the creation of a Fishermen’s Advisory Board (FAB) which consists of representatives from RI commercial fishing fleets, RI charter boat fleets, recreational fisherman and seafood processing representatives. The FAB directly addresses potential development issues
• Well over 30 meetings have been held between CRMC, developer and the FAB.
• Mr. Willis addressed a Providence Journal article that spoke to a backroom deal between CRMC and the developer. Mr. Willis stated that information came to light that the developer was contractually obligated to use 11 MGW turbines. CRMC did not have that information prior to receipt of verification of the contractual obligation document which was received Monday, 24th. CRMC Conditional Concurrence determination did not change.

Anthony DeSisto – Federal Consistency Process requirements of the Council

• Three outcomes of a Federal Consistency Determination Process by the Council
  • Determination of a concurrence
  • Determination of a non-concurrence (objection) due to inconsistencies with the RI Coastal
    Program
  • Determination of a conditional concurrence if certain conditions are met.
• This application will be going up to BOEM for final regulatory approval CRMC is but one step in the review process
• The Council will hear from others regarding the implications of the enforceable polices of the RI Coastal Resources Management program on whether or not the application is consistent with the enforceable policies of the program
• If there CRMC renders an objection to the Federal Consistency Application, an Appeal can be filed by the Developer with the Secretary of Commerce.
• If the developer objects to a determination of Conditional Concurrence, it is treated as an objection, and an appeal can be filed by the Developer with the Secretary of Commerce.

James Boyd – CRMC summarized staff report

Acronym explanation:

• APC – Areas of Particular concern
• BOEM -- Bureau of Ocean Energy Management
• COP – Construction and Operation Plan
• DEIS – Draft Environmental Impact Statement
• FAB -- CRMC Fishermen’s Advisory Board
  • Uncertainty – used frequently because there is uncertainty as to the magnitude of projected impacts from this project; and to the likely economic impacts from the project both positive and negative
    • Basing CRMC conclusions on best available information CRMC has been provided with not
      only from COP and DEIS but as provided by the developer along with the FAB

Presentation included 10 slides

Slide 1: South Fork Wind Farm Proposed Project Area (orange rectangle)

• Consists of up to 15 turbine positions using 6MW or up to 12 MW wind turbine generators (WTG) Maximum design envelope
• Export Cable will make landfall on Long Island, New York as the developer is contractually obligated to Long Island Power Authority – none of the energy will benefit the state of Rhode Island goes into NY state independent system operator which is separate and distinct from the New England ISO
• Federal Consistency Project in which every element of this project is in federal waters. CRMC is not issuing any state permits in this matter.

Slide 2: South Fork Wind Farm Spacing Options

• Two configurations for potential windfarm one option shows spacing as .7-.8 nautical miles between turbines not allowing for the recommended 1 nautical mile spacing
• Second option provides the preferred 1 nautical mile on an east-west lanes

Slide 3: 1 x 1 Nautical Mile Uniform Grid for Offshore Wind Farms with NW-SE corridors
Affirmed by United States Coast Guard MA/RI Ports Access Route Study 5/14/2020 – Wind Energy project in this area must put forward one nautical mile with east-west orientation of turbines

• Advocacy from CRMC and Fishermen Advisory Board after CRMC and Vineyard Wind review process in which a successful mitigation agreement was achieved between the FAB and Vineyard Wind Developer who did not provide for an East West orientation as well as less than 1 nautical mile between turbines.
• FAB advocated for wider transit lanes as well

Slide 4: South Fork Wind February 2020 COP

• Adjusted turbine layout to be consistent with USCG affirmed positions and offshore substation

Slide 5: Table D-1. Maximum-Case Scenario List of Parameters Specifications

• COP and DEIS provided maximum design parameters associated with this project which were dependent on the WTG selected which ranged from 6mw to 12mw with 11 to 15 turbine positions
• Prompted the project minimization alternative developed by staff.

Slide 6: Layout of Proposed Wind Farm overlain on habitat in the Lease Area

• Views of glacial moraine, potential fish habitat and boulders
• Complex bottom that serves to provide essential fish habitat because of the complexity of the bottom
• Turbine positions located within glacial moraine, seen in DEIS

Slide 7: South Fork Wind Project Impacts -- Coastal Effects Analysis

• Document part of Council’s package posted on Council’s Web for public review
• How this project has reasonably foreseeable effects on coastal users, fishermen are coastal users based on adverse impacts such as alterations to glacial moraine, noise impacts and presence of turbines.

Slide 8: Ocean Special Area Management Plan Primary Goal

• Not only to achieve offshore wind energy within state and offshore waters with coexistence between new uses with historic existing uses;
• Want to see avoidance of impacts or minimization/mitigation of impacts if unavoidable impacts by developer;
• Developer put forth minimization efforts by modification of project over the course of CRMC 2.5 year review with an outcome of the uniform 1 nautical mile grid;
  Micro-siting of turbine foundations within a 500 foot radius of identified position in an effort to minimize impact of fish habitat;
• Mitigation provided because of unavoidable impacts in the form of compensatory mitigation of $12 million dollars for fisheries/community funds; Navigation Enhancement and Training Program to include $1 million input spread out for all three projects South Fork, Revolution and Sunrise projects;
• Pile driving noise attenuation using noise mitigating bubble curtains with an expectation of achieving 10 decibel noise attenuation; still will be significant noise impacts to fish environment;
• Committed to avoiding overlap between geophysical and fisheries monitoring surveys due to lessened fisheries when geophysical equipment used in area as well as loss of fishermen’s valuable fishing gear
• Committed to doing a post-construction radar analysis causing vessel radar interference issue when going into a wind farm – fairly well demonstrated in this area and in Europe – still uncertainty as to how to avoid this interference

Slide 9: Ocean SAMP Enforceable Policy Issues (found at 650-RICR-20-05-11)

• §11.10.1(C) Project has to be modified to avoid impacts and if not avoidable, impacts need to be mitigated – staff concluded there are impacts which have not been avoided and require mitigation measures.
• §11.10.1(F) prohibition of activities causing long term effects – activities that effect more than one or two seasons – such as spring season and fall season – example: piling driving noise impacts
• §11.10.1(G) adverse impacts must be mitigated
• §11.10.1(H) mitigation to make whole adversely affected user groups; More than 30 meetings but did not come to agreeable mitigation proposal – FAB does not agree with current proposal; Mr. Boyd says sorry staff was not able to reach an agreeable solution as we did with Vineyard Wind case.
• §11.10.1(I) project modification required for impacts to glacial moraine
• §11.10.1(J) protection of sensitive habitat areas
• Both I and J Factored heavily into staff recommended project minimization alternative as part of recommendation
• §11.10.2(B) demonstrate all feasible efforts to avoid damage to APC values and resources – glacial moraine – required to demonstrate that all feasible efforts have been made to avoid damage

Summary

• Despite modifications up until just recently the project will have adverse impacts and so mitigation is required based on the enforceable policies
• Staff concluded after review that the developer did not demonstrate that all feasible efforts were made to avoid glacial moraine pursuant to OSAMP enforceable policy §11.10.2(B)
• Staff recommended a project minimization alternative based on design envelope based and on DEIS – if developer used maximum 12 megawatt turbines the developer would only need 12 positions to deliver their contractual obligations to Long Island NY Power authority.
• We did not find out this weekend that the developer had entered into a contractual agreement with manufacturer for an 11 megawatt machine, the use of that machine would require 12 foundation positions rather than 15 and then using an 11 megawatt generator.
• Staff concluded that the project minimization alternative combined with all mitigation measures in total including the $12M compensatory mitigation offered by the developer would meet enforceable policies of the OSAMP. Accordingly a conditional concurrence that requires the project minimization alternative, could be issued by the CRMC

Slide 10: Recommended Conditional Concurrence

• Issued staff recommendation on Friday, May 21, 2021, which was posted on the CRMC website available to all
• Provided addendum given the information just learned this weekend of the contractual obligation that the developer has with wind turbine generator manufacturer for an 11 megawatt generator rather than 12MW generator
• The use of the 11 MG gen staff the project mini alter consisting of 11 mg and no more than 12 turbine foundation would demonstrate that all feasible efforts had been made to avoid glacial moraine (apc) as required by OSAMP enforceable policy §11.10.2(B)
• Staff recommended conditional concurrence to include the mitigation package as revised proposed minimization with a maximum of 12 turbine foundations and including the compensatory mitigation package.

Chair opened meeting for Questions for James Boyd

Mr. Gomez asked if the particulars of the $12M compensatory package would be discussed. Mr. Boyd confirmed that particulars would be discussed which would include information provided by developers and CRMC analysis when looking at economic impact associated with this project; also hearing from developer and fishermen. Mr. Boyd stated that CRMC analysis looking at range of economic impact for this project, using information from developer and FAB, over 30 year life of project looking at 30M to 50M in value and looking at potential exposure losses, potential of 50-80% losses developed based on experience of fishermen.

Chair Cervenka asked if the total exposure approximate $30-50 million included all the pieces of economic impact was generally agreed upon. Mr. Boyd stated that there has been no agreement in terms of the value, annual exposure value of commercial lands, charter fishing and recreational fishing and that in the beginning private recreational impacts was not recognized by developer.

Mr. Boyd explained that CRMC will, in the future, bring all parties together to gain an agreement on the value of all of the fisheries involved.
Chair Cervenka and Mr. Boyd discussed the discrepancy of the monetary range of 30-50M between the developer and the fishermen as well as the percentage of compensation for the value throughout the entirety of the project.

Mr. Gagnon asked if there were three foundation locations that were not going to be used with the decrease to 12 foundations from the proposed 15 and if the locations should be determined by staff. Mr. Boyd stated the CRMC habitat minimization alternative did not identify specific turbine locations and that would be the responsibility of BOEM to decide. BOEM will make CRMC’s position part of their final EIS if the developer agrees to the condition that the state would put forth as part of conditional oncurrence that developer has to acknowledge the states position and they agree not to install more than 12 foundations.

Mr. Gagnon asked if there would be a restriction of the time of year for pile driving. Mr. Boyd stated that the time of year restriction will be from January 1 until end of April been agreed to with the NMFS and incorporated into recent record of decision of VW project to protect right whales.

No further questions for Mr. Boyd.

Robin Main, Attorney, Hinckley Allen -- Developer Presentation
Presenters:
Melanie Gearon, SFWF
Rodney Avila
Ed Leblanc
Greg Decelis
Hauke Kite-Powell
Di Jin

Attorney Main opening remarks:

• South Fork, a 50-50 venture between Eversource and Orsted, is a proposed offshore windfarm that will bring in clean renewable energy.
• South Fork is not in RI waters, it is in federal waters and New York waters
• South Fork is here as part of one of its federal consistency reviews consistency seeking conditional concurrence that South Fork is consistent with CRMC’s enforceable policies
• South Fork respectfully ask that pursuant Federal Coastal Zone Management act and its regulations that CRMC issue conditional concurrence for South Fork as reflected in staff
  addendum
• South Fork agrees with CRMC staff’s condition in its addendum in reducing turbines from 15 down to 12 each of which will be 11 MW turbines
• South Fork compensatory mitigation is 12M over the life of the project
• South Fork is on a 1 by 1 nautical mile grid north/south – east/west configuration
• Federal Government process to identify the least that South Fork will utilize
• South Fork and Cox’s Ledge are not synonymous and the lease area was drawn carefully to avoid critical fishing areas. Ms. Main read from Senator Jack Reed’s office press release regarding the removal of Cox’s Ledge from the federal lease area
• South Fork has already undergone many layers of review including significant public comment as well as stakeholder input – now under review with CRMC and with other states as well as federal agency review
• South Fork supports dropping the three turbines from 15 turbines to 12 turbines and respect the regulatory process which allows for discussion with staff about the project the projects design and make up. Appreciate staff took to talk to us resulting in the addendum.
• Gains to RI marine economy are substantial to RI to include ProvPort and Quonset – long-term employment opportunities
• Claus Moeller, head of New England Program for Orsted present this evening -- available for questions
• Ken Bowse, VP of Offshore Wind Siting and Permitting, Eversource -- available for questions

Melanie Gearon, Orsted, Permitting Manager for South Fork Wind Farm
Slide Presentation:

• Slide 1: South Fork Wind
  South Fork mandate is to deliver approximately 130 MW to eastern end of Long Island
• South Fork Wind is located 35 east miles of Montauk and 19 miles from Block Island
• Developing project in design envelope approach allowing for the gathering of more information and data through advances in technology, expanding market which also allow for this project to become more defined enabling the team to assess the current design and remove three turbines as CRMC staff suggested.

Slide 2: Map of Location

• Cables, both export and inter-array cable, will be buried in the seafloor.
• Review on the federal level is an extensive analysis conducted by multiple federal agencies to include essential fish habitat.
• There were several opportunities for Public Comment
• BOEM will review final facilities design reports by a certified verification agent

Slide 3: Lease area

• Project is within the limits of an area designated for Offshore Wind Development
• Siting occurred years before they became a lease holder
• RI and MA wind energy area was cited as a result of a regulatory process with input from
  stakeholders and fisheries to reduce use conflict
• The area was assess by RI and MA including CRMC participation;
• Level of citing for RI MA was much more intense than any other area in the northeast
  Lease area as proposed by states, BOEM adjusted proposed areas also creating No Building zone requested by RI Fishermen’s Advisory Board
• Cox’s ledge is not defined by South Fork Wind lease area

Slide 4: Seabed Footprint

• Lease area is small with small seabed footprint
• 13,700 acres, less than 1% of seabed in South Fork lease area

Slide 5: Project Update and Engagement

• Several updates made over past 4 years

Slide 6: South Fork Wind’s Commitments

• Project Modification and mitigations over the years
• Have been flexible and designed a project for co-existence
• Cable burial deep so fishery gear do not get caught up on
• Siting foundations at the micro level to avoid impact to benthic habitat
• Construction timeline is condensed
• Noise reduction systems were

Slide 7: Progression of South Fork Wind Turbine Layout

• Listening during Vineyard Wind review and agreed to accommodate Fishing industry
• Entered in 1 by 1 grid layout in 2019.
• Committed to 1 by 1 nautical grid

Slide 8: Offshore Construction timing

• Orsted very experience learned how to streamline and minimize construction
• Foundations 2-4 days to install making this project foundation setting maximum of 2-4 months
• Monopile foundation driving 2-4 hours
• Installation of each turbine about 3 days
• Decommissioning is the reverse of the project with entirety removed.

Slide 9: Seabed Habitat Mapping: Glacial Moraine

• Sea bed is patchy
• Glacial moraine
• Coarse sediment
• Sand and mud

Slide 10: Siting the Foundations – Avoiding Glacial Moraine

• Will microsite foundations to avoid moraine

Chair Cervenka asked for clarification on the effect the moving of the foundation to the 1 by 1 nautical mile grid layout. Ms. Gearon stated that as long as they stay within the diamond siting allowance, they will be able to keep the 1 by 1 grid layout.

Ms. Reynolds asked for clarification of the decommissioning details regarding permanent footprint. Ms. Gearon confirmed that the decommissioning process included the removal of all components of the wind farm.

Rodney Avila – Corporation fisheries Liaison

Slide 11: Fishing Areas

• Informed Council of background and experience as a commercial fisherman
• Most fishing experience came from the lease areas
• Two main commercial fishing components in RI – mobile gear and fixed gear
• Terrain of SF area mobile gear is limited to little area, Orsted made concessions to move the turbines so as to not disturb area’s use by mobile fishermen
• Very little conflict in lease are by mobile gear and fixed gear

Edward LeBlanc – Northeast Marine Affairs Manager

Slide 12: South Fork Wind commitment to Fishing and Environmental Communities

• Informed Council of background in US Coast Guard

Slide 13: Orsted Marine Affairs

• Largest team in Industry encompassing fisheries stakeholder engagement, navigation safety, and fisheries science
• Programs include monitoring vessels, easy to use fishery claims process both gear loss and opportunity loss costs
• Full-mission simulation for vessel navigate through a wind farm in numerous conditions

Slide 14: US Coast Guard MARIPARS Report

• US CG MARIPARs (Mass and RI Port Access Route Study) Report
• Peer Reviewed
• RODA appealed which was affirmed by USCG

Slide 15: Navigational Enhancement and Training Program

• Designed to assist commercial fishing and to provide subsidized efforts to improve navigation equipment and to provide training to navigate in lease areas. – Innovative program
• Voucher Program – vouchers can be used for training opportunities

Chair Cervenka asked if the Navigational Enhancement and Training Program was outside of the financial responsibility of the compensatory program. Mr. LeBlanc confirmed that the NETP was a separate program and was in addition to and separate and apart from the $12M compensatory program.

Greg DeCelles – Fishery Science Specialist – ROSA -- credentials

Slide 16: Cod spawning in Cox’s Ledge area

• Location of Cod Spawning locations 2018-2019
• Description of study
• Cod spawning not just located in Block Island Sound

Hauke Kite-Powell – Woods Hole Presenters

Slide 17 and 18: Fisheries Impact Analysis project Team -- credentials and education

Slide 19: Investigate the likely effect of South Fork Wind development on the value of RI base fished activities in the South Fork Wind area

• Look at data and speak with fisherman about the historic fishing in the area and the value generated and to see if that would continue if area stayed undeveloped – baseline assumption
• Estimate impact that wind development is likely to have on baseline

Slide 20: NOAA Commercial Fisheries Landings Data

• Vessel Trip Report data has been collected for decades
  • Documentation filled out by vessel operators
• Widely used for fisheries research, management and economic impact assessments
• Information is combined to estimate commercial landings

Slide 21: NOAA Data for Baseline Commercial Values

• Graph shows 12 years of values of fishery landings – fluctuations due to fish stock and change in prices of fish
• Longer term average -- $261k with $152k landed in RI
• Major species are monkfish, flounder, scallops and lobster

Slide 22: Adjustments and Final Baseline Values

• Lobster and Jonah Crab area not always required to report
• Many fishermen sell dockside for higher prices
• Onshore impacts such as ice, fuel for fishing vessels,
• Adjusted baseline value –in 2019 -- $388k commercial fishing and $180k for charter fishing
• Private recreational fish does not have accurate value

Slide 23 – Potential Impacts from South Fork Wind

• Commercial Fishing
  • Access to areas and impacts to fish stocks during construction
  • Impacts to fishing during operations
  • Access to areas and impacts to fish stocks during decommissioning
• Charter Fishing will likely be able to take place during all phases
• Private recreational fishing will be negligible and potentially positive based on locations and could be enhance dby presence of wind farm

Slide 24: Estimate of Likely Potential Impacts

• Conclusion over the life of the project the effect for RI fisheries will be just over $800k for commercial fishing and $220 for charter fishing – Conservative and Realistic values

Chair Cervenka asked if the impact values for both groups, commercial and charter fisheries, translate to percentages of loss during the 30 year period. Mr. Kite-Powell stated percentages vary over time dependent on phase of project. During construction fishing will be constrained within the lease for the duration of construction 8 months and assume fish will leave an area that include the lease area footprint 5 km boundary for total of 4 months and assumes that some non-mobile species will be lost due to construction noise in the immediate vicinity from pile driving

Chair Cervenka asked about the range in reference to developer South Fork Wind estimating up to a 100% loss during construction. Mr. Kite-Powell stated it was species dependent, did not estimate a total value – assessment by species. Chair Cervenka reiterated that the estimate of loss would be severe during construction; moderate during years and then again severe during decommissioning.

Di Jin – informed council of background and experience

Slide 25: Recreational Fishing

• Reviewed FAB’s foundation for recreational impact estimation which is based on 1986 study of salmon fishing in Alaska public in 2009 by Carson et al.
• Feels this is a misapplication of benefits transfer from location A to location B with different contexts – theoretical foundation is problematic leading to significant overestimation for dollars values exposed to this area of RI.
• Reached out to Dr. Carson and he reviewed the assessment by FAB and came to same conclusion of overestimation of dollar values stating that the FAB study ignored studies of positive impact of recreational activities in windfarm areas.
• Jeremy Firestone, University of Delaware, recent survey of recreational boaters in New England, saying that there will be positive impact of wind development activity basically by tourist reaction.

Slide 26: Recreational Fishing Locations: Many Choices

• Impact will be minimal or close to positive

Slide 27: For-Hire Charter Fishing in SF Wind Lease Area

• Median is 3% revenue percent
• Not hinged on this site

Attorney Main – move to conclude the study – Compensatory Mitigation aspects

• As per Staff report and Addendum South Fork is offering $12M over life of project as well as navigational program value of $1M
• Evidenced based approach brought the original money up to $1M with addition rerouting costs $30K for additional costs
• Experiential aspects brought about a contingency cost which increased the costs to approximately $1.7M
• Was not possible to reach agreement where FAB would give recommendation
• Continued to work through the process
• Additional money put forth for mitigation as the first project
• Lease are was carefully created through federal process to avoid critical fishing areas
• South Fork did go to 1 by 1 layout which was a significant cost by Orsted
• South Fork add an addition $10.3M to the proposal
• Parties talking about certain impacts, spread sheet, hypothetical coupled with Woods Hole knowledge
• Charter and Commercial to a certain degree is covered.
• Issue is on private recreational fishing
• OSAMP provisions do not stretch to private recreational; not meant to compensate that user group in the wind area. Assuming it is, it is a difficult factor to consider or value due to multiple areas to consider.
• We believe that the 12M compensatory mitigation package covers commercial fishing, for-hire charter fishing, on-shore impacts as well as includes inflation factor and compensation on recreational as well.

Attorney Main began the discussion on Compensatory Mitigation as South Fork.

• Compensatory Mitigation package proposes $12M dollars over the life of the project as well as the $1M Navigational Program that is spread across the three Orsted/Eversource projects: South Fork, Revolution Wind and Sunrise.
• 12M compensatory package was an evidentiary-based approach using research done through
  NOAA data, various interviews and experience which adjustments made through input from FAB and CRMC going from an initial offer of $1M with additions over time for additional fuel required, rerouting costs, with a final number of $12M
• South Fork is a smaller project in comparison to other offshore wind projects with a 1 x1 nautical mile layout which further cost Orsted and Eversource a significant investment to show commitment to coexistence.
• Private recreational boating is a difficult factor to consider a compensation number for.

Olivia Larson Tesse

• Explained spreadsheet of compensatory mitigation analysis
• One year of analysis and eight months of negotiations with the FAB with a significant difference in estimations over the life of the project – Woods Hole being $1M and FAB being $35M
• FAB requested funds be placed for them in the event that Orsted/Eversource do not follow through with full decommissioning. A Security Bond will be posted on the federal level with BOEM so that number is not included in the compensatory package.
• Even with Recreational fishing compensation included, developer stands that all compensation nfalls within $12M number.

Attorney Main

• Concluded by asking the Council to support the recommendation of staff based on accommodations of South Fork in the areas of: amount of compensatory mitigation, reduction of turbines and navigational program inclusion.

Chair Cervenka asked for clarification on the compensation funding schedule that was referenced in Ms. Tesse’s letter of May 24, 2021. Attorney Main answered that the developer was trying to remain flexible on how to fund the mitigation, with a higher number at construction, leveling off during project operation and then a higher number at decommissioning, so that the mitigation fund lasts over the lifetime of the project. Attorney Main agreed with Chair Cervenka that compensation schedule should be worked out with FAB so that funds are available at decommissioning.

Mr. Gomez stated that he agreed with Chair Cervenka and Attorney Main on the flexibility of the compensatory mitigation plan.

Mr. Gagnon stated that he agreed as well.

Ms. Main clarified for Ms. Reynolds that the Enhancement Training Program will exist as long as the funds are available by means of vouchers and training programs. Ms. Main stated that if the fund runs out they will cover it whether it is the South Fork project, Revolution Wind project or the Sunrise Project.

Meeting break. Return at 9:00 p.m.

Marisa Desautel, Esq. – Legal Counsel to Fishermen’s Advisory Board

FAB Presentation:
Marisa Desautel
Rich Hittenger
Chris Brown
Chris Lee
Brian Thibeault
Make Marchetti
Greg Mataronas
Rick Belevance
Tom Sproul, Economic Advisor

Attorney Desautel, Esq. addressed the Council on the following:

• FAB Members, who dedicate their personal time to help the fishing community, were going to boycott the meeting but attended hoping that the Council will adhere to the requirements of the Ocean SAMP.
• The representative of the Private Recreational fishing representative will speak for his constituents.
• FAB members feel that they are in an untenable situation with South Fork that caused them to seek an objection for federal consistency.
• FAB objects to the mitigation package recommended by CRMC as it fails to make them whole as required by the Ocean SAMP which states that mitigation is defined as a process to make whole those fisheries user groups that are adversely effected by proposals to be undertaken.
• FAB members were operating in good faith in negotiations with CRMC and Orsted, with CRMC proposing an objection to the project, until they were told on Saturday, May 22, 2021, that the CRMC staff was writing a conditional concurrence as agreed upon between CRMC and Orsted without participation from the FAB.
• Suggested politics as the reason for change in staff recommendation.
• The mitigation package that was shared with the FAB remains unclear and they do not have a definitive understanding of the dollar amount being offered over the first five years of the construction of the project.
• If Orsted proposed to pay the $12M up front, the FAB would agree to it.
• A reference was made to an agreement that Orsted made with the town of East Hampton, NY for $29M for an easement while the fishermen’s livelihood hangs on $5.2M.
• The South Fork site is located in area referred to as “the crown jewel” of fishing areas because of its unique habitat and popularity with RI Fishermen which has been acknowledged by CRMC staff.
• Disagreement that the South Fork site is outside of Cox’s Ledge as well as disagreeing that the project is a small project as it meets the definition of a large project under the Ocean SAMP.
• Expressed confusion at the staff recommendation that Orsted decrease the number of turbines down to 11 and then ask that no more than 12 turbines be approved all while keeping same compensatory mitigation package.
• Removal of turbines does not solve the navigation problems of fishermen.
• Reference to the USACOE quote for Vineyard Wind, that the entire area will be abandoned by commercial fishermen due to navigational difficulties asking how compensatory mitigation package being proposed address the loss of the entire South Fork lease area.
• The conditional concurrence was a result of calls and meetings between Orsted and CRMC staff excluding the members of the FAB and not operating in accordance with the Ocean SAMP policies for mitigation negotiations.
• The FAB does not take issue with CRMC staff analysis which they feel was very thorough but the FAB does not agree that the proposed remedy makes the fisheries whole.
• If the council approved the Staff recommendation it will approve the industrialization of the ocean without fair and adequate compensation to Rhode Island’s fisheries as required by the OSAMP.

Ms. Desautel ended by asking the Council to vote to object to the project and with a request to summarize after the FAB Members spoke.

Tom Sproul – Private Consultant to the Fishermen’s Advisory Board in the field of economy.

• In response to M. Gearon stating that the project covers 1% of the lease area, the impact on fisheye users from offshore wind are navigation issues making the 1% of the footprint statement a false comparison.
• Woods Hole has never given straight answer about whether they are giving Orsted’s positions or their own expertise
• Charter Fishing and Recreational fishing was not considered until brought up by FAB; hired by Orsted to consider commercial fishing.
• Referred to facts as revealed in FAB response documents in the Council packet
• Mr. Sproul was not authorized to do a full recreational study but spent time writing results due to a vacuum of missing data that was not provided by the developer
• Aware that the research for the Carson paper does not match this circumstance but he is unaware of a study that matches the exact circumstance. The Carson paper was referred to as it is instructive about the loss to recreational fishing for being displaced
• Ms. Tesse’s statement that there is no evidence of growth rate is incorrect as all values are expected to grow with inflation.
• Believed that the existing analysis of CRMC supports an objection to this project as the Orsted mitigation proposal fails to make commercial, charter and recreational fisheries whole as required by the OSAMP
• Impact calculations did not include construction noise impact of fishing
• Staff did not quantify the risks associated with lease extension or project abandonment
• Inflation for construction start date of 2023, would increase the numbers to $16.25M to $43.5M
• No evidence that removal of three turbines would reduce impacts for this project
• Does not agree that upfront suggested $5.2M would cover the construction impact losses with payments being back weighted and the inclusion of a claims system and clawbacks to Orsted without disclosure in writing.
• CRMC staff omitted pile-driving noise impacts, only citing information provided by BOEM’s draft EIS
• Larger turbines will require larger monopile foundations increasing the underwater noise for eggs and larvae mortality.
• FAB concerned that turbines will remain in the water for longer than anticipated or that South Fork will not be around to honor their commitments which could result in only 7.4 million of the compensatory mitigation paid out
• BOEM indicated the ability to extend the project up to 20 years with decommissioning is subject to NEPA review and may not occur.
• Expressed concerns with his review of Orsted’s economic development report stating numbers do not match in report
• South Fork has not constructed such a large project and timeframe for construction could be extended for a number of reasons
• Concerns that South Fork would default on decommissioning leaving it up to the government which could take additional time
• No guarantee has been given from Orsted or Eversource to assume responsibility for decommissioning or completion of compensation payout.
• Expressed concern for the $1M navigation fund for the South Fork fund.
• The term “Lump Sum” used in the latest proposal is called into question as misleading representation of their mitigation proposal as it refers to installments stretched over 30 years but n to shorter term payouts.
• CRMC staff analysis shows the fisheries users are not made whole by Orsted’s latest mitigation proposal
• Range of impacts is worse than presented by staff
• OSAMP requires the Council to deny this project

If the Council requires $12M upfront money from developer, the FAB will support a concurrence

Mr. Gomez asked what would be done to preserve funding for appropriate funding downstream. Mr. Sproul stated that the majority of funds would be put into a trust to be managed by a board of fisherman as per VW settlement to be managed in the best interest of fisheries user groups being affected.

Mr. Gomez stated that if the full funding is received up front, there would be no going back to the well for additional money due to change in circumstance. Mr. Sproul agreed.

Chair Cervenka asked if upfront payout would cover all percentage of losses described. Mr. Sproul stated that he did not feel that the $12M cover the impacts. Mr. Sproul stated that his calculated numbers were around $17M upfront or $31M over a period of the life of the project without the inclusion of a lease extension or abandonment.

Rich Hittinger – FAB Member representing private and recreational anglers, recreational anglers

• Background of fishing experience
• Assure the Council that when being involved with the OSAMP it clearly included private recreational fishing.
• Spent the last 8 months trying to educate CRMC staff and Developer on recreational fishing
• This area is very important for recreational fishing for cod and pelagic fish such as tuna and mahi
• Talked about his experience with the Block Island Wind Farm and stated that this project will have significant negative impacts in the area
• CRMC did a good job identifying Cox’s Ledge
• Asked that the FAB have in writing how the impact will be eliminated or mitigated by an existing agreement with the developer.
• Referenced staff’s words that the location of the South Fork Wind project on Cox Ledge, an area known for its biological diversity, is, in our view, one of the worst possible locations within Rhode Island Sound for this project
• Also referenced CRMC staff’s words that mitigation measures are required in accordance with enforceable polices 11.10.1(G) and (H) with nothing in writing on what makes the fishing community whole
• CRMC staff concluded that the South Fork Wind project is not consistent with Enforceable policy 11.10.1(H) – final recommendations to move forward with conditional concurrence was influence by something other than the fact of the case
• Absent documentation of how the developer will meet all requirements of the OSAMP, the only action possible by Council is a denial or the Council will be acting in direct conflict of own codified regulations

Chair Cervenka asked for more information from Mr. Hittinger on his statement about the OSAMP including recreational fishing. Mr. Hittinger stated that he did not have quotes from the OSAMP but that he recalled fisheries sections and worked with Jen McCann and Tiffany Smythe to write and rewrite sections just to assure that private recreational fishing was included.

Chris Brown – FAB Member representing commercial fisherman

• Explained background
• Here to grant or deny the South Fork Wind Farm conditional concurrence but also will be writing a prologue that will be applicable to every negotiated settlement between fishermen and developers in the future.
• Possibly writing an obituary for the FAB and the OSAMP
• Nation transitioning from fossil fuels towards energy products that produce less carbon but the evolution is being propelled by politics, not sound science or policy
• OSAMP is a good document but has been subject to outside influences
• Expressed concern over Governor McKee’s supposed input; and supposed betrayal by CRMC staff
• Orsted never negotiated in good faith
• This process has yielded nothing to approve of and implored the Council to issue a denial.

Mr. Coia asked CRMC staff what meetings were being referred to as a secret deal meeting.

Mr. Willis explained that a CRMC staff recommendation came out on Friday (May 21, 2021) and Orsted did not like the staff recommendation and asked for a meeting on the weekend. Mr. Willis explained that he contacted Ms. Desautel to let her know that the meeting was being held and said he would let her know what happened – which is what he did. Mr. Willis was unsure as to whether or not the information given to Ms. Desautel was relayed to her clients, the FAB. Mr. Willis explained that the meeting with Orsted explained that they had a contractual obligation and CRMC asked for verification of the contractual obligation, which was received. Mr. Willis confirmed that he was in contact with Ms. Desautel before and after the meeting.

Mr. Sahagian asked Ms. Desautel if she was misquoted by the Providence Journal and if she still alleged there was a secret meeting. Ms. Desautel stated that she used the phrase backroom deal and that she still held to that belief. Ms. Desautel stated that if she had known the meeting between CRMC and Orsted would result in a conditional concurrence, she would have done something about it.

Mr. DeSisto asked to speak and stated that there were over 30 meetings and several of those meetings were between the FAB and Orsted. Mr. DeSisto also explained that there were meetings between CRMC and the FAB as well as meetings between CRMC and the Developer – both sides new that and both sides agreed.

Mr. Sahagian asked Mr. DeSisto if he felt it was a back room deal. Mr. DeSisto replied he did not.

Mr. Brown asked about the meeting with the Governor. Mr. DeSisto stated that he never met with the Governor on this matter.

Chair Cervenka asked to move on.

Chris Lee – FAB Member representing after catch processing as well as Hannigan Seafoods

• Agreed with the term uncertainty
• We will suffer here and it will adversely alter the face of the seafood industry in RI as with less fish there will be fewer people employed by the industry that has been a part of the fabric of Rhode Island for many years
• Wind Energy is here to stay
• Have an issue with livelihood being affected
• What we know is that offshore will be altered, fishing industry will be altered, vessels ability to fish in area will change and the impacts will last longer than 30 years.
• Trusts the opinion of the economist that getting $12M upfront is fair but no less.
• Concerned about the impact to the marine habitat offshore
• With more wind farms coming, we needed to get this one right.

Brian Thibeault – FAB Member with long history in the Lobster Industry

• Has seen a decline in catch when geophysical surveys are taking place.
• Jonah crabs disappear during geotechnical survey work
• Lost 32 traps to this project already – towed by vessel – could not get compensation without the loss of future compensation
• Member of FAB since creation and helped during the mitigation process with VW that fisheries accepted; this process was very different and they could not have in-person meetings
• Believed that there was a back room deal because from Friday to Monday the entire story changed
• Fund used for compensation would be comprised of fishermen, executives of the communities to guarantee proper disbursal of money to properly laid claims.

Mike Marchetti – FAB Member representing commercial fishermen

• Explained fishing background
• We all feel a very strong sense of stewardship towards this area and the resources therein
• Good fishery is dependent on good habitat with a good ecosystem supporting healthy living resources
• We are all sustainable harvesters
• Orsted’s COP stated impacts of several miles or km out of the wind energy area and will impact fisheries
• Concerned about the residents of benthic habitat that cannot move and will counted directly as mortality
• The entire food chain that they rely upon will be disturbed for many years due to percussive impact of pile-driving.
• Does not feel that the agreement will mitigate the effects of this project at this time nor its cable route
• Concerned that the project benefits New York at the expense of RI Fishermen
• Negotiated in good faith but in dealing with Orsted, have walked away frustrated
• OSAMP intended to protect fisheries, its users and resources
• $12M dollar final proposal is a very low offer on our end but if you offer $12M upfront or within five years, we may be able to work with that

Greg Mataronas – FAB Member representing commercial fishermen

• Explained background
• Here to defend livelihood and work in coexistence with future competing ocean uses.
• Talked about displacement from fishing areas and possible displacing other fishermen when he looks for other areas to fish
• Cox’s ledge is very important to fishing community
• Fixed gear can only go so many places and will be sharing areas with other guys
• Explained how he reports trips to NMFS using vessel trip reports using a single location at the starting point of the day and always ends up fishing in lease area
• Construction is going to have massive impact of entire area
• Impacts to navigation and safety
• Orsted’s presentation was very defensive presenting a lack of fish and fishing activity in the lease area
• Lease will take up to 61% of Cox’s ledge
• Asks the Council to support this project if mitigation package ends up being $12M upfront or over a very short period of time with no clawbacks, easy claims process, no provisions, and deposited into a trust managed by diverse board.

Mr. Gomez asked Mr. Mataronas if he would recommend fishing professionally to his son. Mr. Mataronas stated that he would steer his son clear of fishing industry professionally.

Mr. Gomez asked if Mr. Mataronas if the board has sufficient data at this point to support upfront funding, based on biologics and information that has been gathered. Mr. Mataronas stated that they haven’t seen specifics of the offer but if it is presented in a form like negotiated with Vineyard Wind it could go a long way to keeping the fishing industry whole.

Mr. Gomez asked about the transparency of what CRMC has been doing mentioning the separate meetings with both sides. Mr. Mataronas stated that this has been a difficult process, lengthened through the pandemic limitations. Mr. Mataronas stated that staff has done what they could under the circumstances

This has been a tough process, lengthened the process through Zoom, not able to get in a room with developer and hash it out with developer. The staff has done what they could do, but the sides were separated way too early.

Rick Belevance – FAB Member representing Charter fishing industry

• Explained background
• Process is very divisive when having very different information from each side of the process.
• $12M is not enough to compensate the fishing industry as a whole
• Talked about vessel trip reports and how recognized by NOAA as a flawed way of collecting location data but only data that the NMFS has to compile their reports which makes the information mentioned by Dr. Jin flawed in its accuracy
• New study out from working group of the New England Fishery Management Council for Atlantic Cod stock Structure which shows a population of cod fish in southern New England waters in the area of Cox’s ledge making this area very important to cod fishing
• Does not agree that the package before the Council is a fair package

Lanny Dellinger – FAB Chair representing

• Not confident that Orsted negotiated in good faith with negotiations that take place
• Has been working on OSAMP since inception
• Been involved in Vineyard Wind negotiations where meetings could be held in person and took much less time
• Orsted negotiations were very different, where weeks and weeks went by without responses or counter offers from Orsted
• Expressed concern with the $12M offer and stated he was not confident that it is the right number
• Council did a good job identifying the problems but not all the problems
• One issue would be insurance rates that would go up or areas will not be covered by your insurance
• Many more wind farms coming behind this one with area larger than RI and it will be a dangerous place for fishing
• This area will be lost to fishermen
• Talked about permit limitations for amount of traps that can be used and what happens if gear used in certain areas. And many of the areas will no longer be useful to lobster fishermen
• Concerns about the construction timeline and how timelines can be lengthened for many reasons creating further issues for the fishermen without additional compensation for construction delays especially in Cox’s ledge which is a very dynamic area.
• Talked about Orsted’s issues with cable burial in the US and in the UK
• Asks the Council to deny the project until the mitigation process is worked out satisfactorily for all parties
• Mr. Dellinger asked for the ability to have public comments

Attorney Desautel closed by asking the Council to vote to object to the project based on testimony heard. Attorney Desautel expressed an interest to revisit negotiations for the mitigation package.

Chair Cervenka stated that the Council needed to schedule another meeting for public comment and to deliberate as a Council

Mr. Sahagian motioned, seconded by Mr. Gomez that the meeting be continued to Wednesday, June 2, 2021 at 5:00 p.m.

Roll Call Vote:
Vice Chair Coia Aye
Mr. Gagnon Aye
Ms. Reynolds Aye
Mr. Gomez Aye
Mr. Sahagian Aye
Ms. McGovern Aye
Chair Cervenka Aye

Chair Cervenka motioned to direct parties to meet and in good faith to consider and discuss the last proposal of the developer (May 24, 2021 letter) and to consider FABs request to fund compensatory $12M up front in trust for fisherman; between now and June 2, 2021

Mr. Gomez seconded the motion

Mr. Coia stated that he could not support the motion but he did hope that they would decide on their own to negotiate further.

Mr. Sahagian agreed with Mr. Coia stating that it was ill advised to force an issue that could not be agreed upon over the course of 30 meetings.

Chair Cervenka stated that her motion was a request not a mandate

Motion for parties, CRMC, FAB and Orsted to meet between now and June 2nd in good faith to discuss the last proposal of the developer as set forth in its May 24th, 2021 letter and the response of the FAB for the $12M compensatory aspect of the mitigation plan to be paid up front.

Mr. Gomez seconded the motion

Ms. Reynolds expressed concern over the motion due to compressed time period in which to follow through with the Council motion

Chair Cervenka stated that she felt it was important for the parties to discuss.

Roll Call Vote:
Vice Chair Coia No
Mr. Gagnon Aye
Ms. Reynolds No
Mr. Gomez Aye
Mr. Sahagian No
Ms. McGovern No
Chair Cervenka Aye

Motion failed.

Chair Cervenka stated that the parties can still meet but not mandated

Back on June 2nd for considering the public comment and for Council to deliberate Ms. McGovern asked about the expected stay agreement.

Mr. Willis stated that the stay agreement was received during the meeting.

7. ADJOURN

Motion: Mr. Gomez
Second: Mr. Gagnon
Motion carried on unanimous vote

Meeting adjourned at 11:10 p.m.

 

Respectfully submitted,

Lisa A. Turner
Recording Secretary