Using Adaptive Management to Resolve Uncertainties for Wave and Tidal Energy Projects

under NEPA should address such schemes. B y C h E R i s E o R A M A N d C h A d M A R R i o T T M A R i N E R E N E WA B l E E N E R g y | i N A R E g U l AT o R y E N V i R o N M E N T Th is aticle as been pulished in O ceagraphy, Vlum e 3, N um er 2, a qurterly jornal of Th e o ceagraphy soiety. © 2010 by Th e o ceagraphy soiety. A ll rhts rerved. Perm ision is gnted to cpy his aticle or se in teching nd rearch. Replication, sstem m tic repruction, or coective redirbution of ny prtion of his aticle by phocopy m acine, repsting, or oher m eans is perm ited only w ith he aproval of Th e o ceagraphy soiety. send ll corrondence o: ifo@ tos.org or Th


Using Adaptive Management
to Resolve Uncertainties for Wave and Tidal Energy Projects A s T h E N AT i o N clamors for new renewable energy sources, hydrokinetic technologies-including wave, current, tidal, and in-stream energy technologies-offer promising additions to the grid.Placing new technologies in ocean and tidal environments, which contain vast, sometimes sensitive resources but are, surprisingly, relatively unstudied, presents a challenge to agencies and developers alike as the industry strives to move through initial project-permitting stages in an efficient but environmentally responsible manner.
"Adaptive management" approaches can allow projects to be permitted and installed while providing agencies and other stakeholders the opportunity to verify their anticipated impacts.Moreover, where actual impacts exceed expectations, an adaptive management approach allows agencies to address such impacts consistent with existing regulatory standards intended to protect marine resources.
Adaptive management is not a new concept; whether called "adaptive management" or not, the practice of studying something and making changes to address identified problems is a logical concept that we naturally apply in many permitting schemes.As applied to initial ocean and tidal energy projects, however, the particular challenge is that adaptive management schemes may need to contain fewer specific contingency plans-fewer "if X, then Y" scenarios-than agencies, in particular, may be used to having.This article considers that challenge and describes an approach to adaptive management intended address those concerns.
As the hydrokinetics industry moves from demonstration projects to commercial build-out, the knowledge gained in initial project stages will help mitigate the uncertainty that exists today.Ultimately, as agencies and other stakeholders better understand the positive and negative impacts of placing hydrokinetic devices in marine environments, adaptive management plans should evolve from open-ended processes toward more prescriptive, contingency-based plans.And just as agencies and other stakeholders gain more certainty, this trend toward more specific contingency planning will provide the necessary certainty to support long-term investments in this industry.This article attempts to define adaptive management for our purposes.It then discusses the components of adaptive management that are necessary to make such schemes viable for initial ocean and tidal energy projects, including that such schemes be project-specific, adopted at the developer's election, and guided by standards articulated in laws that already exist to protect ocean and tidal resources.Finally, this article confirms that adaptive management is allowable under the National Environmental Policy Act (NEPA), and describes how analyses under NEPA should address such schemes.

WhAT is AdAPTiVE MANAgEMENT?
Adaptive management has been variously defined as "a systematic approach for improving resource management by learning from outcomes" (Williams et al., 2009, p

AdAPTiVE MANAgEMENT MUsT BE A VolUNTARy ENdEAVoR
Adaptive management planning should be employed at the election of project

AgENCiEs' sTATUToRy ANd REgUlAToRy MANdATEs MUsT gUidE AdAPTiVE MANAgEMENT
Because there are so many unknowns in adaptive management planning for hydrokinetics, the temptation exists to explore every possible avenue for mitigating every that a hydrokinetic project may be perceived to have on the environment.For that reason, we need to think carefully about when to stop chasing rabbits down rabbit holes-that is, when we can say that a developer has indeed fulfilled its obligation to protect the environment from project impacts.
The underlying problem is that different stakeholders will want to manage to different outcomes.For hydrokinetics, an agency's desire to manage for minimum impacts can be in conflict with a developer's need to manage for maximum power output.
The key to balancing these diverging needs in developing an adaptive management plan is to manage to the existing an EIS must include a discussion of "any adverse environmental effects which cannot be avoided" should the license or permit be issued.An EIS must also include alternatives to the proposed action.This seemingly onerous language is not the death knell one might expect it to be for adaptive-management plan- . 1); "[a]n iterative approach to managing ecosystems, where the methods of achieving the desired objectives are unknown or uncertain" (California Coastal Commission, 1995); and a process for "evaluating the performance of new management approaches and changing practices over time as experience is gained" (West Coast Environmental Law glossary at: http://www.bcwatersheds.org/issues/urban/sbg/glossary).These definitions share several common themes: adaptive management is an iterative process used by resource managers to improve management processes over time when environmental impacts are uncertain.True adaptive management can be differentiated from contingency planning even though both deal with high levels of uncertainty.Contingencies (i.e., predicted impacts and planned responses to those impacts) give managers little control over how to react to environmental impacts because the response to such impacts is already dictated.True adaptive management is open-ended, omitting contingency plans in favor of added control over the response when an impact is realized.For our purposes here, an adaptive management scheme, program, or plan can include elements of both.As the first ocean and tidal energy projects are " AdAPTiVE MANAgEMENT is NoT A NEW CoNCEPT, BUT, As APPliEd To WAVE ANd TidAl ENERgy PRoJECTs, iT Will REqUiRE CREATiViTy ANd Bold lEAdERshiP By AgENCiEs ANd dEVEloPERs AlikE." by the agencies or should they be voluntary?(2) Should an adaptive management process be set for the entire industry, or should plans be project-specific?(3) What standards should guide the adaptive management of a project over time?(4) How does dispute resolution work in this context?We address each of these questions in sequence.
statutory and regulatory standards that Congress and our state legislatures have enacted.Using existing legal standardswhich in turn translate to biological standards-has many advantages.From the perspective of agencies and other stakeholders, using such standards means that they are not "giving up" any existing authority; they are not agreeing to allow developers to have impacts greater than what is allowable under the law.And from the perspective of developers, they are not agreeing to do more than the law would otherwise require.More generally, using legal standards that have already been well defined (and sometimes well litigated) helps ensure a common understanding of the terms and intent to which the project is being managed.Finally, as described in further detail below, using these legal standards will be helpful in the event of a dispute over whether a change in project operations or structures is necessary in light of new information.Agencies and developers should agree that they each retain their rights and authorities under relevant laws to impose or oppose, respectively, new measures at a project.over the long term.During the iterative process, disputes may arise, and an adaptive management plan should specify how the parties will resolve those conflicts.The dispute resolution process should identify how and when parties may trigger the process, what happens if a dispute cannot be resolved in a mutually agreeable manner, and deadlines for action.These deadlines ensure both a timely response to the environmental stressor and a predictable process for the public, agency staff, developers, and other stakeholders.Dispute resolution provisions in an adaptive management plan do not preempt the authority of any state or federal agency to take an action that it would have been authorized to take absent that plan.Although all parties to the plan should attempt to use the process set forth as a primary method for handling the uncertainties inherent in these projects, the plan is not the only means for inducing change in project management.This is an important point: all parties that agree to participate in an adaptive management plan benefit from the collaboration that results, but no agency has its authority threatened by participating.If a significant change in conditions or the revelation of new data leads to disagreement among stakeholders about what action should be taken, agencies may act on their own.For example, FERC has ongoing oversight authority throughout the life of a hydropower license."Reopeners" in the license may allow FERC to take actions to protect fish and wildlife resources that do not require consent of all parties to the adaptive management plan.Should dispute resolution fail to address a stakeholder's concern, therefore, the stakeholder may petition FERC to impose new measures under a hydropower license to address a newly discovered harm.Similarly, NMFS or USFWS may "reinitiate" consultation under Section 7 of the Endangered Species Act if they believe a change in conditions brings their earlier analysis into question for a particular species.And just as agencies and stakeholders retain whatever authority they may have under the law, so too do developers, who retain their right to question or oppose the imposition of new measures under a license or permit.AdAPTiVE MANAgEMENT ANd NEPA Adaptive management provides a means for proceeding with agency permitting processes in the face of uncertainty.At first blush, such uncertainty may seem like an insurmountable barrier to the information requirements imposed on agencies conducting environmental analyses under NEPA.Section 102 of NEPA (42 U.S.C. § 4332) requires agencies to prepare an Environmental Impact Statement (EIS) for any "major federal actions significantly affecting the quality of the human environment." If issuance of a permit or license for a hydrokinetic project (e.g., a Clean Water Act § 404 permit or a FERC hydropower is deemed by the federal agency to be a major federal action under the statute, then the lead permitting agency-generally FERC in the case of hydrokinetic projects developed in state waters-will be required to determine whether a wave or tidal energy project presents sufficient potential impacts to warrant an EIS.(See 40 C.F.R. § 1503.1.)So, what information must an EIS include?Section 102 of NEPA is specific: This article has been published in Oceanography, Volume 23, Number 2, a quarterly journal of The oceanography society.©2010 by The oceanography society.All rights reserved.Permission is granted to copy this article for use in teaching and research.Republication, systemmatic reproduction, or collective redistirbution of any portion of this article by photocopy machine, reposting, or other means is permitted only with the approval of The oceanography society.sendall correspondence to: info@tos.orgorTh e oceanography society, PoBox 1931, Rockville, Md 20849-1931, UsA.
CheriseOram (cmoram@stoel.com)is a Partner at Stoel Rives LLP, Seattle, WA, USA.Chad Marriott is an Associate at Stoel Rives LLP, Portland, OR, USA.