(Nov. 28, 2014) There used to be a time that you could pile whatever you wanted on the ocean floor and the federal government wouldn’t say anything about it.
For better or for worse, those days have passed.
Renewal of the permits that allow the Ocean City Reef Foundation to build artificial reefs off the resort’s coast could be endangered, proponents fear, by a somewhat amorphous set of federal guidelines regarding “cultural resources.”
The basis for the guidelines comes from a 2012 study by the Bureau of Ocean Energy Management, which was conducted in order to declare a “Finding of No Historic Properties Affected” with regard to the lease of federal waters for offshore wind farming.
“Our permits are due to expire, and there are some regulations we did not have to meet in the past that may be cost-prohibitive for us,” said reef advocate Gail Blazer. “I understand why we have to go through this process, but I’m just not sure it was intended to this extent. It was intended for wind farms.”
The Ocean City Reef Foundation’s program consists of submerging various structures — concrete blocks, scrap steel, even the shells of old ships — off the coast of the resort.
These structures eventually attract plant matter, which attract mollusks, which attract crustaceans, which attract fish, which attract bigger fish and help to rebuild an ecosystem that would otherwise be an underwater desert.
The foundation is privately funded by local fishermen, but the permits for reef construction are registered to the Town of Ocean City. Blazer, who serves as the town’s environmental engineer, is responsible for keeping them up to date with the Army Corps of Engineers.
“We have 11 reef sites that have to be kept current,” Blazer said.
It has been some time since any of the permits were up for wholesale renewal. The state controlled the program until several years ago, when it was abandoned and turned over to private foundations. In the interim, things have gotten a bit more complicated.
The placement of artificial structures in coastal waters qualifies under Section 106 of the National Historic Preservation Act, which requires a “reasonable and good-faith effort to identify historic properties” before projects are undertaken.
The NHPA is nothing new. But in 2004, additional federal regulations were promulgated as part of the original legislation, notated in the Federal Register as 36 CFR 800. These regulations require federal agencies to embark on extensive fact-finding and solicitation of information from potentially affected parties, with a particular emphasis on legally recognized Native American tribes.
Thus, as part of their compliance with Section 106, the Corps put out public notice with regard to the renewal of reef permits in Ocean City.
“We had gone through a public notice process, and found that we need some additional information about cultural resources in that area, either buried on or the surface,” said Laura Shively, the Corps biologist overseeing the process.
“We requested that Ocean City provide that information…and we recommended they use the BOEM guidelines to get that information,” Shively said.
The BOEM’s guidelines come from a 2011 recommendation by the Advisory Council on Historic Preservation, issued in conjunction with Secretary of the Interior Ken Salazar and the “Smart from the Start” wind energy development program.
These recommendations ultimately led to a series of BOEM studies that declared a “Finding of No Historic Properties Affected” for the wind development areas, including the 2012 study that cleared waters off of Ocean City to be leased for wind farming.
These studies created extensive guidelines for the use of core sampling, seismic testing, sonar and other methods to verify that the sites were not home to any historical or cultural resources — namely sites of Native American archaeology, on which the BOEM had received extensive feedback from tribal associations as proscribed in 36 CFR 800.
Corps spokesman Chris Augsburger stressed that the BOEM’s guidelines were not binding on the Corps’ approval process.
“It was coincidental that they had a set of guidelines to get the information that we were already looking for,” Augsburger said.
But the implication from local reef advocates is that they are going to be held to a de-facto set of standards, created by the BOEM in order to comply with Section 106 and intended to smooth friction between Native American tribes and wind developers.
“Apparently, we can’t get our permits until we can prove there aren’t ancient Indian villages under the reefs,” Capt. Monty Hawkins, a local charter boat owner and Ocean City Reef Foundation advocate, said at a recent meeting with federal officials.
“If they want us to follow the guidelines the wind people do, it will be way outside our budget,” Blazer said. “It’s not like the reef foundation has the money that the wind people do. I don’t think it was meant for us to go to this extreme.”
There’s no concrete reason, however, that the Corps would hold up the permitting process as long as they could prove due diligence under section 106. But the Ocean City Reef Foundation will have to give them something.
“Basically, [the reef foundation] is coming up with a determination where they would come to us and would say ‘we’ve done a survey and did not find any historic or cultural resources out there,” Shively said.
“Because the project is outside the state [of Maryland], we look around for what guidelines are out there,” Shively said. “Ultimately, if [the reef foundation] had another research technique they wished to use, it could be compliant with Section 106.”
“It’s not set in stone yet,” Blazer said. “We are hoping to work something out.”