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W&G Urges BOEM to Protect Undersea Cables on the Atlantic

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W&G Urges BOEM to Protect Undersea Cables on the Atlantic Before the BUREAU OF OCEAN ENERGY MANAGEMENT U.S. DEPARTMENT OF THE INTERIOR Washington, D.C. In the Matter of Atlantic OCS Proposed Geological OCS EIS/EA And Geophysical Activities, BOEM 2012-005 Mid-Atlantic and South Atlantic Planning Areas Draft Programmatic Environmental Impact Statement COMMENTS OF THE NORTH AMERICAN SUBMARINE CABLE ASSOCIATION Kent D. Bressie Madeleine V. Findley Kristine Laudadio Devine WILTSHIRE & GRANNIS LLP 1200 18th Street, N.W., Suite 1200 Washington, D.C. 20036-2516 +1 202 730 1337 tel Counsel for the North American Submarine Cable Association . 30 May 2012 EXECUTIVE SUMMARY To ensure compliance with the National Environmental Policy Act (“NEPA”) and other legal obligations and to achieve effective coordination and protection of potentially competing marine activities on the outer Continental Shelf (“OCS”), the North American Submarine Cable Association (“NASCA”) urges the Bureau of Ocean Energy Management (“BOEM”) to revise its Draft Programmatic Environmental Impact Statement (“DPEIS”) in this proceeding to account for the extensive presence, critical importance, and unique legal status of undersea fiber-optic telecommunications cables. Although the potential for conflict between undersea telecommunications cables and energy-related activities on the OCS—including those in the Mid- and South Atlantic Planning Areas—continues to grow, the DPEIS makes no mention whatsoever of undersea telecommunications cables, much less the unique rights and protections due to such cables, the federal laws and agencies governing such cables, or any of the threats to undersea cables posed by energy-related activities in the OCS absent awareness and coordination. Undersea cables carry more than 95 percent of the international voice, data, and Internet traffic of the United States, a percentage that is expected to continue to increase. Without undersea cable infrastructure, the global Internet would not function. Currently, there is significant deployment of undersea cables in the Mid- and South Atlantic Planning Areas, and additional cables are either under construction or in the planning stage. Various international treaties to which the United States is a party and customary international law (as observed by the United States) grant to undersea cables unique rights and freedoms not granted to any other activities in the marine environment. The DPEIS, however, makes no mention of these rights and freedoms or their implications for other marine activities, ii including energy-related ones. In the United States, undersea cables are licensed and permitted principally by the Federal Communications Commission (“FCC”), the U.S. Army Corps of Engineers (“ACOE”), and the group of national-security and law-enforcement agencies known as “Team Telecom,” pursuant to various federal statutes and regulations. But the DPEIS does not even identify the FCC or Team Telecom (much less designate them as coordinating agencies” under NEPA) or describe these other statutes and regulations (including civil and criminal penalties for undersea cable damage), even though regulatory activity pursuant to those statutes and regulations could have a variety of impacts on energy-related activities on the OCS. Energy-related activities—including oil and gas exploration and exploitation, deep-sea mining, and alternative energy activities (wind, wave, and current)—pose numerous threats to undersea cables. All three categories of energy-related activities threaten to impede access for undersea cable installation and maintenance, whether on the ocean surface or seafloor, and the risk of damage due to increased vessel activity. Oil and gas-related activities also pose threats from pipeline crossings. Deep-sea mining poses additional threats from direct disturbance and seafloor erosion and abrasion. Alternative energy activities also pose additional threats, particularly from bottom-scouring from wind turbine towers and crossings by power cables of undersea telecommunications cables. None of these is discussed in the DPEIS. The failure to address these threats, potential conflicts, and other legal-regulatory regimes is inconsistent with both NEPA and Congress’s directive to conduct a PEIS for the Atlantic OCS, as that directive was not limited to consideration of energy matters only. With respect to NEPA, undersea cable activity is “reasonably foreseeable” and should therefore be addressed by BOEM as such in revisions to Alternatives A and B. BOEM should add conclusions that vessel traffic, grab-and-core sampling, buoy founding and anchoring, and well drilling, and any other activities iii under Alternatives A and B that may have an impact on undersea cables would be “moderate” or “major” absent further modifications. BOEM should also describe the other laws, regulations, treaties, and agencies relating to undersea cables, given the potential for conflict with undersea- cable and energy-related activities, if left uncoordinated. Finally, BOEM should consider designating the FCC and the Team Telecom agencies as “coordinating agencies” for NEPA purposes. iv TABLE OF CONTENTS EXECUTIVE SUMMARY ............................................................................................................ ii I. BACKGROUND ON UNDERSEA CABLES ....................................................................4 A. Undersea Cables Are Critically Important to the U.S. Economy and U.S. National Security.......................................................................................4 B. Significant Undersea Cable Infrastructure Already Exists in the Mid- and South Atlantic Planning Regions, and More Is Planned ..........................................6 C. Undersea Cables Enjoy Unique Treaty Rights and Protections Granted to No Other Activity in the Marine Environment ......................................8 D. The U.S. Government Regulates Undersea Cables Pursuant to Largely Unique National Regulatory Regimes ......................................................13 1. Licensing and Permitting ...........................................................................13 2. Federal Offenses for Cable Damage ..........................................................14 II. ENERGY-RELATED ACTIVITIES ON THE OCS, IF LEFT UNCOORDINATED, POSE A NUMBER OF CRITICAL THREATS TO UNDERSEA CABLES ..................15 A. Undersea Cable Standards and Requirements Regarding Cable Recovery for Repair, Replacement, or Removal .........................................15 B. Potential Impacts of Oil and Gas Exploration Activities on Undersea Cables................................................................................................19 1. Pipeline Crossings ......................................................................................19 2. Impeded Access—at Both Ocean Surface and Seafloor—for Installation and Maintenance ..............................................20 C. Potential Impacts of Renewable Energy Activities (Wind, Wave, and Current) to Undersea Cables....................................................20 1. Bottom Scouring Caused by Wind Turbine Towers ..................................20 2. Impeded Access—at Both the Ocean Surface and Seafloor—for Installation and Maintenance ..............................................22 3. Power Cable Crossings ..............................................................................22 v 4. Other Potential Impacts..............................................................................23 5. The Experience of the United Kingdom ....................................................23 D. Potential Impacts of Marine Minerals Activities on Undersea Cables.....................................................................................................24 1. Direct Physical Disturbance .......................................................................24 2. Impeded Access—at Both Ocean Surface and Seafloor—for Installation and Maintenance .......................................25 III. AS DRAFTED, THE DPEIS DOES NOT COMPLY WITH NEPA OR CONGRESS’S DIRECTIVE ...........................................................................25 A. Congress Did Not Limit Its Directive to Energy Matters ......................................25 B. Coordination with the FCC Is Required Under NEPA ..........................................27 IV. BOEM SHOULD REVISE AND SUPPLEMENT THE DPEIS TO COMPLY WITH THE LAW AND THE CONGRESSIONAL DIRECTIVE AND TO ACHIEVE MORE EFFECTIVE COORDINATION OF MARINE ACTIVITIES ...............................................................29 A. Undersea Cable Activity Is “Reasonably Foreseeable” for the Purpose of the DPEIS .................................................................................29 B. BOEM Must Include in the DPEIS “Moderate” and “Major” Impacts to Undersea Cables ....................................................................31 C. The DPEIS Should Describe the Legal-Regulatory Regime Governing Undersea Cables Landing in the United States. ...................................32 D. BOEM Should Designate Additional “Cooperating Agencies” ............................32 CONCLUSION ..............................................................................................................................33 APPENDICES vi Before the BUREAU OF OCEAN ENERGY MANAGEMENT U.S. DEPARTMENT OF THE INTERIOR Washington, D.C. In the Matter of Atlantic OCS Proposed Geological OCS EIS/EA And Geophysical Activities, BOEM 2012-005 Mid-Atlantic and South Atlantic Planning Areas
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