Dear Secretary Haaland, Director Lefton, Renewable Energy Program Manager Bennett, Attorney Main, Director Willis and Chair Coia:
Pursuant to 43 U.S.C. § 1349(a)(2)(A), this letter serves as the Fisherman Advisory Board’s (“FAB”), and the individual fishers whom it represents, official notice of intent to sue the Secretary of the Interior and the Bureau of Ocean Energy Management (collectively, “BOEM”), Ørsted Offshore North America (“Orsted”), and the Rhode Island Coastal Management Council for violations of the Outer Continental Shelf Lands Act (“OCSLA”), 43 U.S.C. § 1331, et seq., related to the approval, enforcement, and violations of the BOEM’s Conditions of Construction and Operations Plan Approval (Construction and Operations Plan or “COP”).
South Fork Wind Farm (SFWF or Project), is located in Bureau of Ocean Energy Management (BOEM) Lease Area OCS A-0517, which is within the Rhode Island – Massachusetts Wind Energy Area (RI-MA WEA). SFWF includes up to 15 wind turbine generators (WTGs or turbines) with a nameplate capacity of 6 to 12 MW per turbine, submarine cables between the WTGs (Inter-array Cables), and an offshore substation (OSS), all of which will be located approximately 19 miles (30.6 kilometers [km], 16.6 nautical miles [nm]) southeast of Block Island, Rhode Island.
Prior to the CRMC’s issuance of a conditional consistency on July 1, 2021, the SFWF team communicated multiple times with the CRMC and the FAB to discuss the economic impact of the SFWF on the Rhode Island Fisheries, both commercial and recreational. During the analysis necessary to issue the conditional consistency determination, SFWF submitted a mitigation proposal and the CRMC relied upon a report titled Economic Impact of South Fork Wind on Rhode Island Commercial Fisheries created by the Marine Policy Center in the Woods Hole Oceanographic Institution on September 28, 2020. Using these details provided by the Woods Hold analysis which was also informed by the COP, the CRMC was able to condition the concurrence upon recommending and agreeing on a measure of mitigation that they determined would be sufficient to compensate for the major impacts the project would have, and to meet the CRMC’s mitigation enforceable policies §§ 11.10.1(C), (G) and (H).
Despite consistently emphasizing that the measures contemplated did not take into account many elements of needed mitigation, and that the agreed mitigation measures were insufficient to mitigate for impacts to Rhode Island based fishermen, the CRMC agreed to an amount based upon the data relied upon and presented by Orsted, and issued a conditional concurrence. The FAB reiterated with supporting documentation that Orsted’s mitigation offer do not meet the enforceable policies under the laws and Ocean SAMP. Orsted’s emphasis on the need for the necessary mitigation being “data driven” or “based on scientific evidence” served to assign a zero value to certain harms Orsted found difficult to quantify.
The FAB also detailed significant inconsistencies of the data used, including the COP, for the determination of the extent of the impact the project would have upon the evaluation of mitigations strategies required pursuant to law and regulations such that the project would conform to said law and regulations.
This letter is provided pursuant to the 60-day notice requirement of the citizen suit provision of OCSLA to the extent such notice is deemed necessary by a court. See 43 U.S.C. § 1349(a)(2)(A). If BOEM, Orsted, and/or CRMC does not take action to remedy the violations detailed in this letter, the FAB hereby provides notice of its intent to seek a judicial remedy.