Category: Law and Policy

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OREGON TAKES ON EXPENSIVE AND HAZARDOUS COASTAL ISSUE: ABANDONED AND DERELICT VESSELS

By: Meg Gardner, Environmental Programs Coordinator for the Oregon State Marine Board (TCS Communications Subcommittee Member).

When most people think of marine debris, they think old fishing gear, plastic bags, or cigarette butts. But another category of debris exists that challenges coastal managers throughout the U.S. – abandoned and derelict vessels (ADV’s). This term covers anything from a 10-foot aluminum dingy left on a public boat ramp all the way up to a 100-foot former commercial fishing vessel with barrels of unknown hazardous materials onboard and anchored out on a river. Typically, an abandoned vessel is defined as one that has been left without authorization on public or private lands, and a derelict vessel is one that is sinking, sunk, leaking pollution, or a threat to public health and safety.

This vessel fell apart soon after being removed, evidence of its poor conditions. The vessel in the feature image of this article had to be contained due to leaking oil and then removed. Photo Credit: Oregon State Marine Board
This vessel fell apart soon after being removed, evidence of its poor conditions. The vessel in the feature image of this article had to be contained due to leaking oil and then removed. Photo Credit: Oregon State Marine Board

Vessels become abandoned and/or derelict for many reasons, which can vary from state to state; however, most states still share many similar challenges when it comes to preventing and removing these vessels. For example, keeping track of ownership of a vessel as it changes hands between people can be difficult, especially if new owners do not know the registration or titling requirements of their home state. Most people do not think about the end of their vessel’s useful life when they first buy a boat. As a vessel ages and does not receive the maintenance it needs, it can become a liability. New owners with “boat dreams” may buy a secondhand vessel and do not fully realize the amount of money or skill required to make a vessel run well again. These situations can lead to more boat ownership transfers and eventually abandonment.

Some abandoned or derelict boats are located in challenging locations. Oregon State Marine Board removed this boat by dismantling it in place through an inmate work crew. Photo Credit: Oregon State Marine Board
Some abandoned or derelict boats are located in challenging locations. Oregon State Marine Board removed this boat by dismantling it in place through an inmate work crew. Photo Credit: Oregon State Marine Board

Abandoned and derelict vessels are a concern for many reasons. They can impact the environment through petroleum spills, leaks of hazardous materials or sewage, and they can break apart and become debris fields. These vessels can also impact navigation and safety if they are drifting freely or lurking just under the water out-of-sight. They might be beached near shore where they prevent water users from accessing certain areas. Likewise, these vessels can become a site of illegal activity such as dumping or drug use, especially if they are in remote or rural areas.

In Oregon, once a vessel has been identified as abandoned or derelict, an enforcement agency (such as a law enforcement body or public agency) can start the seizure process, which can lead to removal, storage, and disposal of the vessel. The last known registered owner remains responsible for an abandoned or derelict vessel and liable for any costs incurred by the enforcement agency for removal. However, if the State does not have enough funding to front the costs of removal and disposal, a boat may remain where it is for years, especially because most owners do not have the resources to pay for a boat’s removal or are unknown because its ownership is difficult to trace.

A vessel is removed in Oregon State waters. Photo Credit: Oregon State Marine Board
A vessel is removed in Oregon State waters. Photo Credit: Oregon State Marine Board

Depending on the size, hull material, location, or debris onboard a vessel, removal can be a challenging and expensive process. Large vessels, commercial vessels, vessels with steel or concrete hulls, or sunken vessels are examples that can cost a significant amount of money to remove and dispose. The average cost of an abandoned recreational boat (under 30ft) is about $3,500 in Oregon, while some vessels that the State has yet to remove are estimated to cost several thousand or hundreds of thousands of dollars. In some cases, there are known derelict vessels that may cost several million dollars to remove, which far exceeds the current budget allocated to these removals and would take a special allocation of funds from the state or federal legislature.

Obviously, not having a funding stream proportionate to the problem is a common challenge for most states. Having appropriate legislation or an established ADV program are also important in being able to combat the issue of abandoned and derelict vessels. Oregon’s ADV legislation and program were established in 2004. An update in 2013, streamlined the process of vessel seizure and clarified definitions. However, some of our regional partners do not have established programs, such as Alaska or British Columbia, which can greatly hinder the government’s ability to respond to ADV issues.

Prevention is another key issue in addressing ADV’s, which can come in many forms. One tactic that has shown promise in many states, including in Oregon, is a Vessel Turn-in Program. This is a program in which owners with older vessels they do not want anymore, or marinas who have ended up with abandoned vessels can turn their vessels over to the state (or other public body) and have the boat disposed of at no cost to them. The details of this type of program vary by state but the concept is the same across the board – prevent vessels that are older or in poor condition from entering the water and becoming abandoned or derelict down the road. These programs help to reduce the cost of removing ADV’s and have shown there is great demand for an inexpensive boat disposal option. While this program shows great promise in Oregon, lack of funding to support the demand remains a limitation.

A vessel in the process of getting dismantled. It was turned over through the Vessel Turn-in Program, a prevention program in Oregon where boat owners and marinas can turn over an older boat to be disposed of properly so it will not become an abandoned or derelict vessel. Photo Credit: Oregon State Marine Board
A vessel in the process of getting dismantled. It was turned over through the Vessel Turn-in Program, a prevention program in Oregon where boat owners and marinas can turn over an older boat to be disposed of properly so it will not become an abandoned or derelict vessel. Photo Credit: Oregon State Marine Board

A new effort happening in Oregon now is a Task Force focused on prevention and removal funding ideas specific to abandoned and derelict commercial vessels on the coast. Commercial vessels can be much more challenging and expensive to remove than recreational vessels because of their size, associated equipment, and potential for hazardous waste and pollution. While the Oregon State Marine Board removes both categories of vessels, removal funding comes solely from recreational boater registration and titling fees and is insufficient to adequately deal with commercial vessels. This group of stakeholders is meeting now to try to think through ways to prevent abandoned and derelict commercial vessels and potentially fund their removals through additional means than what currently exists.

For more information about ADV programs around the country from NOAA’s Marine Debris Program, visit: https://marinedebris.noaa.gov/discover-issue/types-and-sources/abandoned-and-derelict-vessels.

For more information about Oregon’s ADV program, visit: http://www.oregon.gov/OSMB/boater-info/Pages/Abandoned-Derelict-Boats.aspx.

 

Meg Gardner manages the abandoned and derelict vessel removal program, clean marina and clean boater programs, and the foam encapsulation certification program for the Oregon State Marine Board, a recreational boating agency. She also serves as the agency representative on a number of groups for marine debris planning and removal, small oil spill prevention, and derelict vessel management. She has been at the Marine Board since May 2015.

Editors’ Note: This is a ubiquitous issue in all coastal states. One resource to learn how other coastal states are managing ADV’s is the symposium proceedings from the National Working Waterfronts and Waterways Symposium in 2015. They had a session devoted to how different states are handing this issue showing there is a variety of approaches. See presentations from Washington State and Florida. 

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CLIMATE CHANGE ANALYSIS UNDER NEPA: REVERSING THE TREND

By:  Steve MacLeod

A recent study out of Columbia Law School’s Sabin Center for Climate Change Law (Sabin Center) may help turn the tables on how projects are typically evaluated with respect to climate change under the National Environmental Policy Act (NEPA) and similar state policies. The resulting paper prepared by the Sabin Center is titled Assessing the Impacts of Climate Change on the Built Environment under NEPA and State EIA Laws: A Survey of Current Practices and Recommendations for Model Protocols (August 2015). The study calls attention to an aspect of the U.S. Council on Environmental Quality’s (CEQ) draft guidance on climate change analysis that has frequently been overlooked – namely, how climate change may affect a project. The Sabin Center paper also outlines a structured approach for analyzing climate change effects on a project, which will hopefully assist agencies in performing such analyses more consistently and effectively during NEPA reviews.

Existing Framework

NEPA requires an Environmental Assessment (EA) or Environmental Impact Statement (EIS) for federal actions that may have a significant effect on the environment. In addition to activities conducted by a federal agency, “federal actions” under NEPA include the issuance of federal permits or the supply of federal funds for a project. In February 2010, the U.S. Council on Environmental Quality (CEQ) released draft guidance for federal agencies to consider the effects of climate change and greenhouse gas emissions (GHG) during their NEPA evaluations, e.g., during the review of a permit application for a project. The 2010 guidance specifically notes that “climate change can affect the integrity of a development or structure by exposing it to a greater risk of floods, storm surges, or higher temperatures.”

The CEQ draft guidance was revised in December 2014 to clarify and reinforce the 2010 draft document’s recommendations, partially in response to public comments on the 2010 draft. The CEQ’s 2014 revised draft guidance clarifies direction on when and how to consider GHG emissions, and includes references to accepted GHG quantification strategies. The 2014 revised draft guidance also reiterates that an agency should assess the impacts of climate change on the project, in addition to the more common practice of evaluating the impact of the project on climate change. However, the CEQ guidance does not clearly define how the climate change impact analysis should be accomplished. Indeed, the 2014 revised guidance acknowledges that “agencies continue to have substantial discretion in how they tailor their NEPA processes to accommodate the concerns raised in this guidance.”

The CEQ draft guidance followed President Obama’s 2009 Executive Order 13514 instructing federal agencies to “establish an integrated strategy towards sustainability in the Federal Government and to make reduction of greenhouse gas emissions (GHG) a priority for Federal agencies”. Under EO 13514 and subsequent supplemental or superseding executive orders, Federal agencies began developing strategies for reducing GHGs; for example, the U.S. Navy issued its Climate Change Road Map memo in May 2010. Since 2009, agencies have also developed strategies for assessing vulnerability of infrastructure to climate change effects; for example, the U.S. Department of Transportation issued its 2012 Climate Change and Extreme Weather Vulnerability Assessment Framework. These efforts have facilitated the reduction of GHGs and adaptation to climate change for some agency-initiated developments, which is an underlying CEQ goal. However, as with the CEQ draft guidance, these documents do not provide detailed instructions on how to analyze climate change during a NEPA review; such analysis would apply to ALL major federal actions, including the regulation of many private-sector projects.

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Green infrastructure from local neighborhoods in Charleston, SC (NOAA, 2015)

The Sabin Center Initiative

In 2015, the Sabin Center conducted a systematic review of NEPA documents to better understand how climate change issues and infrastructure vulnerabilities were being addressed. The Sabin Center study found that, in the absence of a specific climate change analysis protocol for NEPA reviews, the evaluation of climate change impacts on proposed projects has been limited and inconsistent in scope. This finding was based on a review of federal EAs and EISs issued between 2012 and 2014. These results were generally consistent with a similar review of recent EAs and EISs conducted by Defenders of Wildlife in 2013. In particular, while it has become common practice to quantify GHG emissions from a proposed project, this practice only addresses one side of the coin: how a proposed project will potentially contribute to climate change. Because an EA/EIS more often considers how a project will affect the environment, the opposite approach has been dubbed a “reverse EIS” because it emphasizes the environment’s effect on the project.

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Climate risk assessment in energy development and mining projects (Sabine Law Center, 2015)

Catchy term aside, CEQ notes that the justification for the “reverse” climate change analysis is rooted “squarely within the realm of NEPA… ultimately enabling the selection of smarter, more resilient actions.” As a more specific example, NEPAs purpose is, in part, to “attain the widest range of beneficial uses of the environment without degradation, risk to health or safety, or other undesirable and unintended consequences” [42 USC §4331]. For instance, risk to health or safety is clearly an issue in a case where climate change could result in sea level rise or more intense precipitation events that in turn could cause flooding of critical energy infrastructure and subsequent loss of power.

Aiming to bridge the gap between the CEQ draft guidance and routine agency action, the Sabin Center has outlined a detailed protocol for conducting an analysis of climate change effects on a project during a NEPA review. In developing its proposed protocol, the Sabin Center pulled examples from several existing documents, including policies implemented at the local, state and international levels. The study also considered certain EISs that DID incorporate a detailed assessment of climate change impacts on a project, including the EIS for the controversial Keystone XL Pipeline project. By creating a more distinct framework for a “reverse EIS” assessment, the Sabin Center’s study will hopefully help agencies improve the design of more projects through the NEPA process or similar state and local reviews, thus moving us one step closer to smarter and more resilient infrastructure development.

Conclusion

One aspect of a robust EA/EIS is that it employs the best available scientific and technical information. When it comes to incorporating an assessment of climate change effects on a project, an additional measure of a successful NEPA review will likely be that the lead federal agency used the best available analysis tool – something the Sabin Center has aimed to create. Integrating a “reverse” climate change analysis into NEPA documents adds a critical dimension to the thoughtful review of proposed projects that may be significantly affected by shifting environmental conditions. Such an analysis will better inform the public and improve agency decisions in developing appropriate mitigation measures to address relevant and often controversial climate change issues of concern.

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About the Author:  Steven MacLeod is a TCS Board Member and is employed as an Environmental Scientist at Ecology and Environment, Inc. (E & E) in Buffalo, New York, where he consults on energy transmission and shoreline restoration projects. Steve thanks his colleagues at E & E for their contributions to this article, particularly Mr. George Rusk, J.D., and Ms. Laurie Kutina. Thanks also to Ms. Jessica Wentz, J.D., at the Sabin Center for Climate Change Law for her review prior to publication.