R.I. fishermen file lawsuit notice over South Fork Wind Farm

A group of Rhode Island fishermen are preparing to sue state and federal agencies and a private wind developer over the construction of a 12-turbine offshore wind farm southeast of Block Island. 

Marisa Desautel, an attorney representing the Fisherman’s Advisory Board and individual local fishermen, sent legal notice on Wednesday of her clients’ intentions to sue the U.S. Secretary of the Interior, U.S. Bureau of Ocean Energy Management, Orsted Offshore North America and the Rhode Island Coastal Resources Management Council. 

The notice, which was shared with Rhode Island Current, alleges that construction work for the 132-megawatt South Fork Wind Farm has not followed the agreed-upon plans, therefore violating federal law governing offshore development. Preliminary work laying the cables that will eventually connect the turbines to the mainland electric grid on Long Island, east of Montauk, started last fall. The project is scheduled to be completed by the end of this year.

Local fishermen say that Orsted, which is co-developing the project with Eversource Energy LLC, illegally expanded the no-fishing and no-travel zone in Rhode Island Sound around the area where it was laying cables last month. The approved construction and operations plan for the project calls for a 500-meter buffer on either side of the cables, but on April 20, fishermen in the area were told, allegedly by an Orsted vessel, that they needed to stay 1.5 miles away from either side of the cable.

“The restriction in traffic and fishing caused by Orsted also caused fishermen to suffer direct damages in the loss of income from profits from fishing,” the letter states. 

“This loss to fishermen is uncontemplated and questionably compensable under the current framework of the BEOM approval of the current COP.”

Desautel first raised the problems of extended boundaries around cables during an April 25 meeting before the CRMC. At the time, coastal regulators were considering approval of a separate wind farm – Revolution Wind – by the same development team. Desautel urged the council to postpone a decision, arguing that illegally extending a no-fishing boundary on the South Fork Wind Farm undermined Orsted’s credibility on negotiations for the Revolution Wind Farm project, too.

An attorney for Orsted, however, said these allegations were not true and that whoever said that to local fishermen was not from an Orsted vessel. The council ultimately denied the request to postpone its vote.

Who said area was off limits to fishermen?

For now, the complaint rests on sworn testimony from local fishermen, two of whom told the CRMC on April 25 about their experiences attempting to fish or traverse through waters near the cables on the dates in question.

Desautel has filed a public records request for transcripts from U.S. Coast Guard radio transmissions during this time to confirm the allegations. Rhode Island Current separately asked for complaints or documentation about the incident. Ryan Noel, a spokesperson for the Coast Guard’s First District responded in a May 3 email the agency had not received any reports from mariners.

Radio transmission transcripts would bolster the case, but a lack of written documentation doesn’t preclude it from moving forward, Desautel said. 

“At this point, the fishermen don’t have a choice,” she said. “There’s no other recourse. They’ve been painted into a corner.”

The notice of intent signals that the fishermen will be filing a civil lawsuit in U.S. District Court within 60 days. The heads-up is a procedural requirement, said Desautel, although it also offers the chance for the parties to settle ahead of a formal complaint filing.

The notice includes a list of demands for the various defendants. It asks federal agencies to review the existing construction and operations plans for the South Fork project, and require “supplemental mitigation measures” or else stop project construction. Of the CRMC, the fishermen want a supplemental or revised economic impact analysis for the project. The original analysis on which coastal regulators based their approval in June 2021 was contested by fishermen, amid dramatically different projections for losses from the project. 

Numbers not adding up

The fishermen’s consultant estimated a $25.2 to $40.4 million loss to Rhode Island fishermen over the 30-year life of the project, which is what they are now asking Orsted to pay them as part of the pending lawsuit. The original compensation package gave $5.2 million in an escrow account to pay out claims for fishermen who incur losses from the project. 

Desautel said she was not optimistic that these demands would be met outside of court.

“You always hope you can work things out,” she said. “But to us, it seems like the federal government and state government are so supportive of these projects that the odds are pretty low.”

Federal agencies and the developers of the South Fork Wind Farm project are already facing lawsuits from New York residents, a Connecticut solar developer and others. None of the existing claims relate to violations of the Outer Continental Shelf Lands Act cited by Rhode Island fishermen, however. 

Tracey Blythe Moriarty, a spokesperson for BOEM, said the agency does not comment on pending litigation. Laura Dwyer, a spokesperson for the CRMC, confirmed receipt of the notice but said the agency is still reviewing it and therefore cannot offer further comment.

Chris Raia, a spokesperson for Orsted, emailed a response on behalf of the company. 

“We do not comment on the prospect of potential litigation, but may make filings in response to a lawsuit if filed. In the meantime, we are continuing the work to construct the South Fork Wind Farm in accordance with all provisions outlined in our Construction and Operations Plan.”