The Washington-based Grays Harbor Ocean Energy Company has applied for a permit to construct an alternative energy facility on Penguin Bank, southwest of the island of Molokai. 

The Penguin Bank project description is here. 

The Company’s objective is published as: 

Our power project objective to generate up to 100 MW of wave power in a site that is 12 to 25 miles offshore on the Outer Continental Shelf.

The Project will have 100 offshore fixed three-leg platforms standing on the sea bed and raised about 50 feet above sea level. Wave Energy Converters will be built into each leg, for a total of 300 WECs. They are currently rated at 350kW power, and will generate up to 100 MW hydrokinetic power at peak, typically during winter months, and about 40 MW power on average. The seasonality of power generation matches well to the winter power demand.

What about Cape Wind?  That project’s Draft Environmental Impact Statement here.  Some of the controversy of the Cape Wind project is discussed here.  Visual sitings of Cape Wind project are available. 

Jan from Raising Islands had a good post here.

The two federal agencies currently exercising regulatory authority over offshore (>3 nautical miles from shoreline) are the Minerals Management Service (MMS) and the Federal Energy Regulatory Commission (FERC).  The latter recently issued a decision declaring its jurisdiction over these projects offshore, here.  Side note:  the MMS actually participated as a litigant in this decision, the Department of Justice Office of Legal Counsel probably needs to chime in, lest two federal agencies take contrary positions with the regulated public.  This is a good post on the subject:  http://www.carolynelefant1.typepad.com/renewablesoffshore/2008/11/the-ferc-mms-scuffle-continues.html

Most have not heard of these two federal agencies.  Per its website, MMS authority in this area:

Section 388 of the Energy Policy Act of 2005 (EPAct) amended the Outer Continental Shelf Lands Act to grant the Secretary of the U.S. Department of the Interior (Secretary) discretionary authority to issue leases, easements, or rights-of-way for activities on the Outer Continental Shelf that produce or support production, transportation, or transmission of energy from sources other than oil and gas. The Secretary delegated this authority to the Minerals Management Service, which has extensive experience in oil, gas and marine minerals (sand and gravel) offshore leasing. Examples of potential alternative energy projects include, but are not limited to: wind energy, wave energy, ocean current energy, solar energy, and hydrogen production.

Under this new authority, the MMS also may issue leases, easements, or rights-of-way for other OCS project activities that make alternate use of existing OCS facilities for “energy-related purposes or for other authorized marine-related purposes,” such as: offshore aquaculture, research, education, recreation, and support for offshore operations and facilities.

For the Cape Wind project, these are the other federal agencies with interests and regulatory oversight over parts of project.  

News reports suggest, and court pleadings confirm, that the California Sonar Case, a.k.a. Winter v. NRDC, has settled.

The NRDC news release sets forth the settlement terms:

1. It sets out a schedule for environmental compliance pursuant to which the Navy will prepare and issue environmental statements for sonar exercises and ranges around the world.

2. It requires public disclosure of previously classified information on sonar, including information that had been covered by protective order in NRDC v Winter. The Navy also agrees to provide plaintiffs a series of briefings on sonar compliance and mitigation-related issues.

3. The Navy agrees to fund $14.75 million dollars in new marine mammal research.

4. The settlement establishes a cooling off period to permit negotiation between plaintiffs and the Navy when future sonar disagreements arise.

5. The Navy agrees to pay $1.1 million dollars in attorney’s fees for settling both the 2005 lawsuit and a 2006 lawsuit regarding sonar use around Hawaii.

The dismissal pleadings are available here  and here.

My Resource Page for this case is here.

According to news reports, here, the Coast Guard has "approved" the electrification of a waterborne fence to keep Asian Carp out of the Great Lakes.  A Congressional coalition had concerns over the delays in electrifying the fence:

Less than a week after a group of 29 U.S. senators and representatives wrote a letter demanding answers as to why an electric Asian carp barrier built in 2006 to keep the monstrous fish from invading the Great Lakes hadn’t been turned on, the Coast Guard has given it the green light.

The Coast Guard published some relevant documents, via their twitter feed.

Fact sheet, here.  Coast Guard white paper, here. 

Letter from Army Corps of Engineers to Coast Guard, here.  Army press release, here.

October 31, 2008 letter from Council of Governors, here.  Homeland Security's reponse, here.

Attempts to keep invasive species out of the Great Lakes frequently end up in litigation, with groups suing the federal government to prompt action and shippers suing State authorities when they invade on the province of the federal government. 

Nantucket issues here

Jan's post here

The Honolulu Advertiser published an Op-Ed article written by Robert Thomas and myself outlining some of the impacts and ramifications of the Winter v. NRDC decision.  The article is provided below:

The United States has done more than any other country to protect whales, porpoises, seals and other marine mammals. In 1973, for example, Congress enacted the Marine Mammal Protection Act, a comprehensive law prohibiting hunting, killing, or even harassing them.

On Nov. 12, the U.S. Supreme Court balanced protecting marine mammals with the Navy's use of sonar to detect silent diesel-electric submarines. In Winter v. Natural Resources Defense Council, the court voided strict rules imposed on sonar training in Southern California waters, declaring judges should hesitate before second-guessing the Navy's judgment.

Environmentalists claimed mid-frequency active (MFA) sonar frightens or injures whales. The lower courts enjoined sonar use within 12 miles of California's coastline, or if whales were spotted within 1.2 miles of any ship.

The courts rejected the assertion these limitations interfered with the Navy's use of MFA sonar to detect submarines designed to avoid discovery by other types of sonar.

The Navy employs two types of sonar: passive sonar listens for sounds emitted by submarines; active sonar transmits sound and listens for a reflection. Active sonar is the most effective means to detect diesel-electric submarines that are deployed by China, North Korea, and Iran, and are specifically designed for silent running. A single torpedo can sink an aircraft carrier with a crew of 4,000. These submarines can also carry nuclear, biological or chemical weapons.

Nine retired admirals with more than 300 years of service among them and a coalition of support organizations including the Navy League filed a Supreme Court brief emphasizing the threat from silent submarines, and that sailors should not be precluded from training realistically. No one questioned the need to train, but under the lower courts' restrictions, the first time a sonar operator could fully deploy sonar equipment is when it counted and there was no margin for error.

Some blame active sonar for whale beachings and injuries, although there has not been any documented case of harming a marine mammal in the 40-plus years sonar has been used in the Southern California training area. These animals inhabit the world's oceans, and Congress understood the desire to protect them may conflict with national defense.

In 2004, it amended the MMPA allowing the secretary of defense to exempt actions of the Department of Defense if necessary. This exemption was enacted following an earlier California case in which environmentalists challenged the Navy's use of low-frequency active sonar. The exemption allows sonar training even if it might, in some circumstances, injure marine mammals.

Even with this exemption, the Navy takes extraordinary measures to minimize any effects MFA sonar may have. Fleet-wide measures include extra lookouts with enhanced search procedures, limitations on transmission levels within 1,000 yards of mammals and additional powering down of sonar when mammals are inside 500 yards from sonar equipment.

But these measures were not enough for the lower courts, which rejected the judgment of military commanders and the legislative and executive branches that sonar would not likely cause harm, and even if it did, the need to prepare the Navy was, on balance, more important. In effect, the courts substituted their judgment for that of experienced professionals in how to best train to hunt sophisticated enemy submarines.

The Supreme Court recognized that judges haven't the expertise to evaluate threats, and the injunction unnecessarily put sailors, and the nation they defend, at risk. The court noted, "neither the members of this court nor most federal judges begin the day with briefings that may describe new and serious threats to our nation and its people." The need to train sonar operators for deployment is of paramount public interest; it is not worth jeopardizing the fleet with inadequate training just to allay environmental groups' fears that their desire to "take whale watching trips, observe marine mammals underwater, conduct scientific research on marine mammals, and photograph these animals in their natural habitats," might be harmed.

The court is right. The Navy and its leaders — not judges — should determine how best to defend our nation from silent-running submarines.

My resource page with the decision, briefs, coverage and pleadings is here. 

 

The U.S. Supreme Court ruled today that the Ninth Circuit Court of Appeals erred when it upheld restrictions on the Navy's use of Mid-Frequency Active sonar off the California coast pending an Environmental Impact Statement.

Chief Justice Roberts, speaking for the majority said:

"To be prepared for war is one of the most effectual means

…

The opposition briefing is complete in the UFO Chuting case.

The State of Hawaii's Brief in Opposition is here.

The Solicitor General's office filed its Brief in Opposition is here. 

My colleagues, Robert Thomas and Christi-Anne Kudo Chock, and I filed an amicus brief on behalf of Hawaii's Ocean Tourism Coalition in support of the Petition for…

here