Deepwater Horizon Trustees Release SOPs
ELI Gulf Team, May 25, 2016 (updated May 26, 2016)
Earlier this month, the Deepwater Horizon trustees quietly released their Standard Operating Procedures (SOPs), which set out how the natural resource restoration monies totaling up to $8.8 billion will be “manage[d], implement[ed], and administ[ered]” over the long term. The SOPs therefore provide important details about how the restoration program will operate moving forward. The trustees approved these procedures on May 4, 2016.
How do the SOPs fit in to natural resource restoration?
The SOPs are almost 70 pages long, so we won’t review them comprehensively in this post. Instead, we will highlight some of the key points.
Purpose of the SOPs
The trustees produced the SOPs without formal public input, and they are clear about the SOPs’ purpose: they “are intended only to improve the internal management of the Trustee Council and [Trustee Implementation Groups (TIGs)]…” Thus, the SOPs are meant “to document the [trustees’] expectations” and “to promote consistency in restoration planning across the TIGs.”
The trustees are also clear on what the SOPs are not intended to do: they “are not regulations and do not create any legally binding or enforceable requirements or obligations.” Note that these types of disclaimers are fairly common in other federal documents, such as executive orders, where the government seeks (not always successfully) to limit outside parties from challenging the document or its implementation.
Trustee Management Structure
The Trustee Council, which includes representatives from four federal agencies and the five Gulf states, is “guided” by a Chair (a position that rotates annually among the five Gulf states) and a Vice-Chair (a position that rotates annually among the four federal agencies). Most of the Trustee Council’s responsibilities, like data management, are performed by the Lead Administrative Trustee, which at the moment is the Department of the Interior.
The SOPs do not provide much new or additional detail on public engagement opportunities, which include attending annual public meetings (of both the Trustee Council and the individual TIGs), submitting project ideas, and commenting on draft restoration plans. The trustees will also make some information available to the public, such as progress and financial reports and some (but not necessarily all) monitoring data.
The SOPs do not provide much detail on how the trustees will coordinate their activities, either among themselves or with other Gulf restoration programs. For the former, there is a section on “Consultation Opportunities Among Trustees,” which sets out “minimum expectations for [communications “between Trustees above and beyond TIG membership”]…” For the Trustee Council, “Trustees will consider opportunities for consultation with one another before noticing public meetings and before re-examining the restoration program…” The TIGs, meanwhile, “should consider” similar opportunities “with Trustees that are not members of their TIG before noticing public meetings and initiating restoration plans.” Note that the Open Ocean TIG is required to coordinate with a state trustee (at the state trustee’s request) when a proposed project “could potentially affect [that] Trustee’s jurisdiction.”
As for coordination with other Gulf programs, as in the programmatic restoration plan, there is some general language that “[t]he Trustee Council may consider the restoration actions of [the other restoration programs]…”
One place where the SOPs do provide some detail on coordination is in regard to monitoring and adaptive management (MAM). As the programmatic restoration plan signaled, the trustees will create a cross-TIG MAM work group, which will help the Trustee Council “meet [its] monitoring and adaptive management obligations…” This work group will help to coordinate MAM activities both internally and externally (“with other restoration and science programs” and “the broader scientific community”).
Streamlining and Environmental Compliance
The SOPs spell out more detail on “streamlining” compliance of the restoration projects with other applicable environmental laws. Trustees are urged to “continually look for additional opportunities to streamline such processes in order to expedite restoration implementation.” For federal compliance, the trustees will develop an “Environmental Compliance Manual,” not yet released, that will outline procedures for submittals for various federal statutes; and the major ones (like the Endangered Species Act) are listed with some initial assignments of responsibilities. The status of environmental compliance will be reported to the public through the Trustee Council website.
The SOPs provide some additional details on strategic frameworks (which, as noted in the programmatic restoration plan, may be drafted “to focus and sequence priorities within a Restoration Area or to provide additional vision of how to meet Restoration Type goals…”). The SOPs indicate that “[t]he Region-wide TIG will lead development of strategic frameworks for living coastal and marine resource Restoration Types (Marine Mammals, Birds, Sea Turtles, and Oysters) with allocations across multiple Restoration Areas.” After the strategic frameworks are developed, TIGs must consider them “when developing and selecting projects.” TIGs may also choose to develop other strategic frameworks.
Additional or amended SOPs
The Trustee Council reserves the right to amend or produce additional SOPs. The TIGs may also produce their own SOPs, as long as they “are consistent with [the] Trustee Council SOPs” and there is consensus among TIG members.
The SOPs mark the next step in the NRD story. There are, however, a number of documents and procedures that have yet to be released (like the Environmental Compliance Manual mentioned above and a monitoring and adaptive management manual). Thus, while the SOPs clarify some issues, they are not the end of the story. Continued engagement with the trustees could play an important role in how that story plays out.