Morro Bay and Port San Luis fishermen filed a lawsuit in San Luis Obispo Superior Court on February 29, 2024 against the California State Lands Commission, the California Coastal Commission, three off-shore wind developers awarded leases by the Federal Government, and one survey company issued a permit to engage in site surveys before the “best practices” for those surveys, enforceable mitigation and monitoring has been adopted, in efforts to rush these projects across the starting line before anyone knows the impacts.
The Morro Bay Commercial Fishermen’s Organization and Port San Luis Commercial Fisherman Association have known for years that huge ocean windfarms in Federal waters could become a reality and have devoted thousands of hours negotiating with the first ocean wind developers who came to the City of Morro Bay to adapt the old power plant’s existing facilities and transmission lines as a landing point. The City Council of Morro Bay wisely told the initial developers that first they had to address the concerns of the local fishermen before the City would consider using City facilities such as the outfall pipelines at the old plant for offshore wind development.
Before the federal leases were awarded, the agreements with Castle Wind later partnering with TotalEnergies, one of the world’s largest energy developers, were transformed into the Morro Bay Lease Areas Mutual Benefits Corporation with a full range of mitigation and monitoring, jointly governed by the fishermen and the wind developers with provisions for a Morro Bay Lease Areas commercial Fishing Mitigation Fund administered by a fiduciary Trustees’ Committee whose members are appointed by the two Associations (but can benefit non-members who fish in the area). Mitigation was to start before site surveys commenced and continued through construction, operations, maintenance and eventual decommissioning, funded by developer contributions for which the companies would obtain credits which could result in a net-zero expense. Mitigation funds are required to be used “to support, foster and protect to the greatest extent feasible the short-and long-term viability of commercial fishing,” infrastructure improvements, mitigation of cumulative impacts, activities could include
infrastructure improvements, monitoring and addressing future unforeseen impacts, work force development, fish habitat mitigation studies, and many more.
The Federal Government awards the leases to the “highest bidders”, not necessarily to companies with the best mitigation and monitoring commitments. Further, as experience on the Atlantic Coast demonstrates, the companies are able to abandon the projects, with no actual wind energy ever produced, and the local communities and habitats left with the impacts from site surveys which killed whales and other marine species (documented in many News and YouTube videos, and press reports).
The three wind project developers are “impact-deniers” which they claim allows them to defer enforceable mitigation and monitoring until they know exactly what they want to build – even though that would be too late to monitor and mitigate site survey damage and harbor crowding which would have already occurred without knowing what habitat baselines were ravaged by sonic testing; and “monitors” who can only witness limited surface areas without knowing what habitats and species are damaged below the waves. The developers are even trying now to take over the harbor facilities used by commercial fishermen for their survey boats to use, even though the California Coastal Act Section 39234 forbids it:
“Facilities serving the commercial fishing and recreational boating industries shall be protected and, where feasible, upgraded. Existing commercial fishing and recreation boating harbor space shall not be reduced unless the demand for those facilities no longer exists or adequate substitute space has been provided.”
The facts and the science cited in the Complaint support the fishermen’s defense of fishing and fish habitats and immediate judicial intervention:
· The California Legislature has found: “…industrial scale development and deployment of offshore wind energy will also have impacts on coastal oceans resources, fisheries, and coastal communities that are not yet fully understood.”
· The Rand Acoustics 2023 Study found: “Reports of recent whale and dolphin deaths on and new the New York and New Jersey shores, and
public concerns of marine noise impacts from offshore wind development activities, prompted an investigation into the sonar noise levels produced by exploratory survey vessels working ocean areas leased by the Bureau of Ocean Energy Management.”
“The results from the survey underscore the absent continuous near-field acoustic monitoring and operations monitoring, NMFS cannot know what noise emissions are occurring during vessel operations.
“The results suggest a need for comprehensive acoustic monitoring and management of survey equipment prior to and during survey operations.” P. 35.
· “No studies of this type of survey have been done on west coast species. Without designing and implementing scientifically correct studies of the impacts on catch rates, injury and mortality on commercially fished species, both adult and larvae using [Before-After-Control-Impact “BACI”] protocols before site surveys beginning, ‘the opportunity to learn the truth about these concerns will be lost, and efforts to quantify the possible impacts to commercial fishing industry rendered impossible.” (para 34)
· New scientific studies were not considered by the agencies by the leading experts: “…there are currently so many information gaps that it is almost impossible to reach clear conclusions on the nature and levels of anthropogenic sounds that have potential to cause change in animal behavior, or even result in physical harm.” Immediate and long-term effects and impacts on fish populations must be examined. (para. 35)
· Another scientific study followed by the Coastal Commission in denying PG&E seismic testing permit conclude: “Seismic shooting severely affected fish distribution, local abundance, and catch rates in the entire investigation area.”
· “Trials off the coast of California showed that hook and line catch rates for various redfish species were reduced by 50% under the influence of a single air gun.” (Pearson, Skalski).
· Fishermen did not know in advance of the 2018-2020 U.S. Geological Study Sonar Surveys which occurred along Central Coast from
Monterey Bay through Big Sur and Spot Prawn landings reduced by approximately 70%, and did not recover for nearly five years. There was no notice, monitoring, mitigation, or disclosure.
· The Coastal Commission denied the PG&E Seismic Survey Permit, which the local fishermen also opposed, based on detailed findings of risks to fish stocks, habitats and commercial fishing so substantial that it denied the survey permits because the impacts could not be mitigated. A different standard is now followed by the Coastal Commission when off-shore wind site surveys are involved. The pages of damning Commission findings are equally applicable to these proposed site surveys.
“…the few available studies suggest that larval organisms and eggs in close proximity to a high-energy sound source are likely to experience severe injury and mortality.” “…the expected level of [larval] mortality would be about 36% of 9..2 million, or approximately 3.3 million larvae.”
· The Coastal Commission filed suit against the Navy in federal court to stop “mid-frequency sonar” along the California Coast in 2007 because of impacts to biological productivity in coastal waters.
· Site surveys authorized in 2020 by the State Lands Commission resulted in widespread destruction along the North Coast of California; and neither State Lands nor the Coastal Commission did anything to stop the blatant disregarding of commercial fishing activities which were “in the way” of the survey vessels. Both agencies claimed to not have the power to stop the destruction, or they just didn’t, and there is no reason that they will be up to the job when commercial wind energy site surveys commence along the Central Coast (and well beyond the local areas). Their poor record is evidence of the inadequacy of mitigation and monitoring and requires judicial intervention to protect the resources.
The fishermen are standing up for some of the most important and fundamental principles of the last fifty years of environmental and natural resource laws, the Constitutional, Public Trust Doctrine and Coastal Act policies protecting ocean habitats and commercial and recreational fishing, including:
· There is no enforceable, defined and adequate mitigation of impacts on fishing habitats and commercial fishing activities.
· Mitigation and monitoring are fundamental principles and cannot be deferred; but must be enforceable and in place before any phase of a project can start.
· Projects cannot be segmented with initial phases moving forward before all impacts are known, mitigated and monitored; projects are defined as “the whole of an action” – in this case from site surveys through decommissioning. No project piecemealing is allowed because it’s convenient for offshore wind developers.
· When the Coastal Commission’s Conditional Consistency Determination was made allowing the federal leasing activities to go forward, the Commission made detailed findings of immediate and projected impacts on fish habitats and commercial fishing. The Commission committed to do the work to identify areas of uncertain impacts – before any phase of the project could commence.
· The wind energy developers are now impact deniers because the fishermen are an inconvenience and they don’t want to participate in permanent mitigation and monitoring arrangements like the Commercial Fishing Mitigation Fund which would last for decades until the projects are decommissioned. It’s easier if no one is there to watch them and keep them honest.
· The wind developers are rushing to start site surveys now which identified scientific evidence documents can damage commercial fishing and fish habitats.
· New statutes passed by the California Legislature establish a working group process which is tasked with determining the “best practices” for site survey protocols. That Working Group has only begun its work which must then be subject to public hearings. Instead of waiting for the process, the wind energy developers are rushing the process of surveys in whatever agency they can before the best practices see the light of day in public hearings. The fishermen weren’t even notified of applications for site surveys to the State Lands Commission or the State Water Resources Control board. The plans for the surveys are so heavily redacted when given to the fishermen to review that they disclose nothing.
· The Coastal Commission found that the site survey activities “have the potential to interfere with commercial and recreational fishing in and offshore of Cambria primarily through impacts to important fishery species and space-use conflicts within staging locations and offshore.” Nonetheless, the wind developers are to start the surveys now without adequate monitoring.
The local fishermen are standing up for their rights and important public policies protecting fishing and fish habitats:
· The California Constitution describes only one right as “absolute”; it is not freedom of speech, press, or religion:
Article 1, “Declaration of Rights,” Section 25, added by Progressive Era 1910 Initiative Amendment:
“The people shall have the right to fish upon and from the public lands of the State and in the waters thereof, … and no land shall every be sold or transferred without reserving in the people the absolute right to fish thereupon….”
· California Constitution, Article X “Water,” Section 4:
“No individual, partnership or corporation…shall be permitted…to destroy or obstruct … free navigation of such water; and the Legislature shall enact such laws as will give the most liberal construction to this provision, so that access to the navigable waters of this State shall be always attainable for the people thereof.”
· Act for Admission of the State of California Into the Union, 1849, (Pub.L.31-29), Section 3:
“and that all of the navigable waters within the said state shall be common highways, and forever free….”
· Public Trust Doctrine: The State of California’s title to is tidelands and submerged lands, “…is a title held in trust for the people of the State
that they may enjoy the navigations of the waters, carry on commerce over them, and have liberty of fishing” free from obstruction or interference from private parties.
· California Coastal Act (Pub. Res. Code) Section 30230:
“Martine resources shall be maintained, enhanced, and where feasible, restored. Special protection shall be given to areas and species of special biological or economic significance. Uses of the marine environment shall be carried out in a manner that will sustain the biological productivity of coastal waters and that will maintain healthy populations of all species of marine organisms adequate for long-term commercial, recreational, scientific, and educational purposes.”
· California Coastal Act (Pub Res. Code) Section 30234 (quoted above) protecting, “Existing commercial fishing and recreation boating harbor space shall not be reduced unless the demand for those facilities no long exists or adequate substitute space has been provided.”
· California Coastal Act (Pub. Res. Code) Section 30234.5: “The economic, commercial, and recreational importance of fishing activities shall be recognized and protected.”
· Commercial fishermen and businesses have a variety of protected property rights which the litigation seeks to protect in behalf of the association members
