As it prepares for the New York Bight area offshore wind auction to be held on February 23, the Department of Interior’s Bureau of Ocean Energy Management (BOEM) issued a Final Sale Notice that outlines the procedures involved.

The auction is significant because according to the Department of Interior, the roughly 480,000 acres subject to it will be part of the first offshore wind lease sale under the Biden-Harris administration and the 16 GW target by 2035 for the New York and New Jersey areas constitutes a significant portion of the administration’s total goal of generating 30 GW in the U.S. by 2030.

The New York Bight extends northeast from Cape May in New Jersey to Montauk Point on the eastern tip of Long Island.

Information Contained in the Final Sale Notice

The Final Sale Notice provides detailed information on the following areas:

• Provisions and conditions of the leases
• Auction details
• The lease form
• Criteria for evaluating competing bids
• Awards procedures
• Appeal procedures; and
• Lease execution

Federal Litigation by Save Long Beach Island

A federal case, Save Long Beach Island v. U.S. Department of the Interior, filed on January 10, is currently challenging the procedures utilized by BOEM as to the New York Bight development.

The case is noteworthy as offshore wind development is still in its early stages in the U.S. and the procedures being utilized by BOEM could be impacted. It is also calling attention to competing interests that potentially need to be weighed.

Its main contention is that BOEM’s determination as to the final Wind Energy Areas selected for the auction must be reversed and set aside, and the Complaint raises multiple related procedural issues it says must be followed pursuant to the National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA).

Comparison of Final Sales Notice with Issues Raised in Federal Litigation

BOEM currently has until March 19, to submit an Answer to Save Long Beach Island’s Complaint, at which point some clarification will be provided as to its formal response.

As mentioned above, its Final Sales Notice also provides specific information on the procedures that have been followed and that are yet to come.

As to the Complaint’s main contention that BOEM should have issued a programmatic environmental impact statement before determining the Wind Energy Areas in March 2021, the following procedures under NEPA are said to be applicable:

• BOEM is required to conduct an environmental assessment
• It must then make a determination as to whether to prepare an environmental impact statement or issue a finding of no significant environmental impact
• The test is whether any “major federal action” is involved that “significantly affects” the “human environment”

According to the Final Sale Notice, BOEM satisfied the first step of performing an environmental assessment. It states that a draft was made available on August 10, 2021 and the final assessment was made available on December 16, 2021.

It is the second step where the parties differ, in that BOEM issued a finding of no significant environmental impact, while Save Long Beach Island asserts that a finding of significant environmental impact should have been made and that therefore, BOEM should have subsequently prepared and issued an environmental impact statement.

BOEM states that its Environmental Assessment examined the following:

• The potential impacts of the issuance of commercial and research leases within the identified Wind Energy Areas
• The potential impacts of granting rights-of-way and rights-of-use and easements in the region
• The environmental consequences of site characterization activities and site assessment activities; and
• Project easements associated with each potential lease issued and grants for subsea cable corridors in the NY Bight

As to not issuing an environmental impact statement, it said that “the Proposed Action would not cause any significant impacts and implementing the Proposed Action does not constitute a major Federal action significantly affecting the quality of the human environment within the meaning of section 102(2)(c) of the National Environmental Policy Act of 1969.”

Ramifications of the Absence of an Environmental Impact Statement

Save Long Beach Island’s Complaint asserts that an environmental impact statement involves the following:

• It must fully analyze all direct, indirect and cumulative impacts of the proposed federal action or project
• It must contain a complete and accurate discussion of the proposed project’s foreseeable environmental impacts, including those that cannot be avoided
• It must provide an accurate presentation of key facts and environmental impacts to ensure a well-informed and reasoned decision 
• It must propose mitigation measures if a significant effect is identified; and
• It must examine a range of reasonable alternatives to the proposed action and focus on those that reduce the identified impacts on the action

What the organization asserts as some of the ramifications of not preparing and issuing an environmental impact statement are explored below, together with specific actions taken by BOEM.

Public and Other Comments & Environmental Impact

The Final Sales Notice covers in much detail actions that BOEM has taken in response to comments from the public, Tribes, ocean users, and partnering agencies pursuant to comment periods as well as targeted outreach and solicited feedback. As a practical matter, the feedback and efforts are related to the elements involved in an environmental impact statement, although how effectively those elements are met is an open question. 

BOEM’s solicitation of comments and subsequent activities can be contrasted with a statement in Save Long Beach Island’s Complaint, which states that the “decision to not prepare a programmatic environmental impact statement effectively forecloses any opportunity for the public to comment upon, critique, and offer alternatives to the Wind Energy Areas.”

In terms of BOEM’s specific efforts, the Final Sales Notice states that it relied on information received in response to a Call for Information and Nominations issued in April 2018, and upon consultation with ocean users.

It also issued a Proposed Sale Notice on June 14, 2021 via publication in the Federal Register  (86 FR 31524), and during the 60 day comment period, received 134 comments, which it replied to and utilized to make changes to the selected Wind Energy Areas, including a reorientation of their boundaries and reducing what originally consisted of 1,735,154 acres to 488,201.

Additional changes as to bidders in the auction included limiting the number of leases any bidder can bid on to one, as well as the following lease stipulations:

• They must advance engagement and coordination with federally recognized Tribes, ocean users, other agencies, underserved communities, and other interested stakeholders
• They must advance flexibility in transmission planning
• They must advance the domestic supply chain; and
• They must promote the use of project labor agreements.

Timing and Alternatives

Save Long Beach Island makes the argument that “NEPA emphasizes the importance of coherent and comprehensive up-front environmental analysis to ensure informed decision making.”

The Complaint cites case law saying that this is to guarantee the “agency will not act on incomplete information, only to regret its decision after it is too late to correct.” Marsh v. Ore. Natural Resources Council, 490 U.S. 360, 371 (1989).

As to BOEM’s actions specifically, the Complaint says that it has “committed [itself] to a particular course of action and the use of a particular public ocean resource without first conducting a full and adequate alternatives analysis at the program level.”

The Complaint also anticipates that for each proposed Construction and Operations Plan, BOEM would prepare a draft environmental impact statement, but that based on prior agency practice, it would not consider alternative Wind Energy Areas at that stage.

As to BOEM’s actions in relation to issues of time and the ability to explore and adopt alternatives, it can be noted that it identified the Wind Energy Areas in March 2021, and then published a Proposed Sale Notice on June 14, 2021 and sought comments during the 60 day period that followed.

As outlined above, BOEM received substantial input from the public, Tribes, ocean users and partner agencies from the 134 comments pursuant to the 60 days and from targeted outreach. This resulted in numerous and substantial changes including those to the Wind Energy areas and were incorporated into the Final Sale Notice.

A resulting question is whether such actions properly took the place of an environmental impact statement, and specifically, whether they were comprehensive enough, allowed enough time for informed decision-making and sufficiently identified alternatives.

Alternatively, if an environmental impact statement is not required in this situation, a question remains as to whether the above process was an adequate one.

Cumulative impact

The potential cumulative impact of offshore wind development in the selected Wind Energy Areas is also a focus of Save Long Beach Island’s Complaint, which takes the position that the environmental impact statement that it holds BOEM should have issued, should have included a component that “comprehensively address[es] the cumulative impacts of the five Wind Energy Areas.”

Here, it can be noted that BOEM’s Final Sale Notice provides a mechanism to make adjustments as to cumulative impact by separating lease execution from project approval. It states that the “issuance of any lease resulting from this sale would not constitute an approval of project specific plans to develop offshore wind energy.”

BOEM has additionally provided for project plans submitted to undergo environmental, technical and public reviews. The Final Sale Notice states as to such project plans that they would be “subject to subsequent environmental, technical, and public reviews prior to a decision on whether the proposed development should be authorized.”

BOEM may also potentially point to the changes made in response to its Call for Information and Nominations and its Proposed Sale Notice to illustrate that various entities have had a chance to weigh in as to the cumulative impact of the six lease areas. However, it can be noted that this differs from a formal assessment that specifically examines cumulative impact.

Endangered Species Act

Save Long Beach Island’s Complaint also makes the assertion that BOEM is in violation of the Endangered Species Act (ESA).

Specifically, it alleges that the selected Wind Energy Areas as well as related Wind Energy Areas immediately south of the New York Bight, “lie within habitat used by various marine animals that have been listed as “threatened” or “endangered” under the ESA.”

It further states that any federal agency whose “actions or decisions may affect a federally listed species must consult with the federal wildlife agency – the U.S. Fish and Wildlife Service – that has jurisdiction over the species in question,” pursuant to Section 7 of the ESA.

It asserts that BOEM failed to engage in such consultation.

However, according to the Final Sale Notice, BOEM has completed a programmatic consultation with the National Marine Fisheries Service (NMFS) under section 7 of the ESA.

It also provides specifics, stating that, “During Endangered Species Act (ESA) consultation, the U.S. Fish and Wildlife Service recommended in its October 15, 2021, letter to BOEM the installation of automated Motus telemetry tracking stations on meteorological buoys to help address information gaps on offshore movements of birds and bats, including ESA-listed species.”

BOEM states that as a result, it is including a lease stipulation requiring the use of such tracking stations.

BOEM also says it relied on input from the New Jersey Department of Environmental Protection pursuant to comments received.

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