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On June 23, 2022, the Bureau of Ocean Energy Management (BOEM) published a draft guidance on mitigating potential impacts of offshore wind development on commercial and recreational fishing. The final guidance document will set forth required information that lessees must submit to BOEM at each stage of a wind project, i.e., Site Assessment Plan (SAP), Construction and Operations Plan (COP), and General Activities Plan (GAP), including project-specific information on potential impacts on fishing and mitigation measures for avoiding or reducing such impacts at the SAP and COP stages.

Among the requirements set forth in the draft guidance are BOEM recommendations on providing financial compensation to fishermen during construction, operations, and decommissioning if a project is likely to result in lost income to commercial and recreational fisheries. BOEM also recommends gear loss and damage payments. While there are no laws that explicitly require compensation of economic loss from displacement due to offshore energy developments, BOEM suggests lessees consider establishing adequate reserve funds to compensate for lost income to fishermen that results from the lessee’s actions. BOEM cites “ex-vessel revenue” as an appropriate method for calculating the amount of reserve funds. “Ex-vessel revenue” is defined as “a measure of the dollar value of commercial landings, usually calculated as the price per pound at first purchase of the commercial landings multiplied by the total pounds landed.” (citing the National Oceanic and Atmospheric Association (NOAA) Sustainable Fisheries Glossary). BOEM also recommends in the draft guidance that a neutral third-party be hired by lessees to process claims, manage and disburse funds, and handle appeals.

In addition to financial compensation to fishermen, BOEM lists wind project design elements that may help mitigate impacts on fisheries. The draft guidance contains recommended design elements for static cables, dynamic cables, and facility design. For example, BOEM recommends that “[l]essees should avoid installation techniques that raise the profile of the seabed, such as the ejection of large, previously buried rocks or boulders onto the surface. The ejection of this material may damage fishing gear.” Further, “[f]acility planning should use nature inclusive designs, where applicable, to maximize available habitat for fish.” The draft guidance also contains a list of measures lessees should consider in their plans to improve safety in and around the facilities.

The information required by the final guidance and BOEM regulations will assist BOEM in complying with the Outer Continental Shelf Lands Act (OCSLA), the National Environmental Policy Act (NEPA), and other laws. BOEM is charged with evaluating potential impacts to social and economic conditions of the fishing industry and determining whether the proposed activities could result in unreasonable interference with other uses of the OCS or could cause undue harm to the environment. Failure to submit the necessary information in an SAP, COP, or GAP may result in delay, disapproval of a plan, or approval of a plan with additional terms and conditions.

BOEM is inviting public review and comment on the draft guidance through August 22, 2022. Additionally, BOEM will hold public meetings to discuss the draft guidance. The Gulf Coast virtual meeting will be held on July 18th.

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