Draft North Atlantic Right Whale and Offshore Wind Strategy Announced

As the Bureau of Ocean Energy Management (BOEM) has ramped up offshore wind development to meet the Biden-Harris administration's goal of generating 30 gigawatts of offshore wind by 2030, the question of how the expansion of offshore wind energy could affect the critically endangered North Atlantic right whale (NARW) has come under close review. To help address this question and support the recovery of endangered NARW and the responsible development of offshore wind energy, BOEM and the National Oceanic and Atmospheric Administration's National Marine Fisheries Service (NOAA Fisheries) developed a joint Draft North Atlantic Right Whale and Offshore Wind Strategy (the Draft Strategy). Published on October 21, 2022, the Draft Strategy recognizes that offshore wind development has the potential to affect the NARW, but that substantial data gaps exist in understanding those impacts and developing solutions. The Draft Strategy lays out a continuing effort to identify and resolve data gaps and lists multiple avoidance and minimization measures that may be implemented in ongoing and future offshore wind development.

The Need for a Shared, Comprehensive Strategy

BOEM and NOAA Fisheries recognize that offshore wind is an essential energy resource needed to combat the climate crisis, but also observe that NARW are endangered, at high risk, and are currently experiencing an unusual mortality event (or significant die-off) due to human interaction. The NARW never fully recovered from the commercial whaling industry of the 1800s and 1900s, and they are currently endangered by entanglement in fishing gear and vessel strikes. As a result, NOAA Fisheries considers NARW resilience to additional stressors to be low. NOAA Fisheries has previously identified the need to improve knowledge of the factors limiting NARW recovery through the NARW 2021-2025 Priority Action Plan and has also assessed the threats associated with the development of offshore wind through NOAA Fisheries' NARW Road to Recovery. These initiatives reflect broader efforts to protect NARW, including proposed changes to the NARW vessel speed rule that would modify speed restriction areas, expand the type of vessels subject to speed restrictions, and other proposed revisions to help avoid vessel collisions. NOAA Fisheries has also worked with stakeholders to reduce fishing gear entanglements, even closing some lobster and Jonah trap/pot fisheries in important NARW habitat.

In the Draft Strategy, BOEM and NOAA Fisheries state that potential stressors from offshore wind development include increased exposure to noise and/or pressure; entanglement in gear or other appurtenances of development; increased risk of strikes from vessels involved in offshore wind projects; and climate changes to habitat. In recognition of these risks, offshore wind developers have initiated research into mitigation measures, and even signed agreements with environmental organizations to enhance the protection of NARW during project construction and operation. However, the Draft Strategy notes there are substantial data gaps on the effects of offshore wind on NARW, particularly on indirect effects, such as changes to marine mammal prey availability.

The Draft Strategy has three main goals: (1) mitigation and decision-support tools; (2) improved research and monitoring; and (3) collaboration, communication, and outreach. The first goal supports the development of mitigation and monitoring measures that are sufficiently general to be implemented at all phases of offshore wind development. It also supports the research, development, and implementation of quieting technology and quieting performance standards to reduce the acoustic impacts of offshore wind development on marine mammals.

The research and monitoring goal focuses on developing and disseminating a research plan that identifies the key data gaps. The plan will detail how to work with partners, stakeholders, and other ocean users to fill data gaps; it also supports the development of a long-term Passive Acoustic Monitoring (PAM) network to collect baseline and soundscape data and expand the use of satellite data to track NARW distribution and habitat use.

To support the collaboration, communication, and outreach goal, BOEM and NOAA Fisheries intend to develop long-term and proactive coordination strategies, including establishing a NOAA and BOEM NARW and offshore wind strategy implementation group, which will be responsible for sharing outreach and communications plans. Engagement is a key piece of the Draft Strategy, and the implementation group will help coordinate efforts among interested stakeholders. The Draft Strategy names several government entities, industries, academic and research organizations, and nongovernmental organizations that will play a key role.

Proposed Avoidance and Minimization Measures

The Draft Strategy lists several preliminary avoidance and minimization measures, categorized by the stage of renewable energy development, to consider for individual projects. Some measures may be incorporated at the project scale by developers, and others may be implemented at a regional scale by BOEM or NOAA Fisheries.

For existing leases, BOEM will work with NOAA Fisheries during environmental review of the developers' Construction and Operations Plans (COPs) to ensure that measures to avoid and minimize impacts to NARW and habitat are included as conditions of COP approval. The Draft Strategy encourages developers to evaluate multiple project design options and focus on identifying designs that avoid and minimize impacts. BOEM notes they have the authority to suspend operations if new information becomes available indicating that activities authorized by BOEM are now resulting in an imminent threat of serious or irreparable harm or damage to NARW.

The Draft Strategy also lists avoidance and minimization measures that BOEM and NOAA Fisheries envision being adopted during site characterization and construction and operation. These include: time-of-year restrictions on pile driving and high-vessel use activities; establishment of clearance and shutdown zones that are monitored to avoid exposure to noise or other conditions; use of trained, third-party protected species observers; carrying out of sound field verification; vessel strike risk reduction through the reduction of vessel speeds and other measures; development of quieting guidance and performance standards; implementation of routine cleanups of ghost gear and other debris; and the development of an adaptive framework to quickly resolve unanticipated issues.

The Draft Strategy further considers project-specific preliminary monitoring measures that will rely on data collection prior to and during the COP approval process. The agencies intend to establish a centralized, publicly accessible data portal to integrate data across projects and inform management decisions. Proposed project-specific measures include: ensuring all environmental reviews are informed by robust baseline data; conducting monitoring to assess the impacts of the physical presence and operation of turbines; conducting acoustic monitoring of construction and operational noise; conducting monitoring for changes to fishing operations and displacement of fishing effort; developing and implementing plans for research and monitoring to address new and emerging issues and technology; conducting aerial surveys for a minimum of three years prior to BOEM starting its environmental review process in lease areas and surrounding waters to collect sufficient baseline data; conducting continuous archival PAM in and around lease areas; coordinating a regional PAM approach; and monitoring to implement mitigation and identify the effectiveness of mitigation measures.

Next Steps

BOEM and NOAA Fisheries intend that the Draft Strategy reflect a shared vision among all stakeholders interested in the success of offshore wind development and protection of NARW, with particular focus on input from government, industry, academia and research organizations, and nongovernmental organizations. The Draft Strategy is a set of guidelines, so it does not identify any new policy or regulatory action. Ultimately, however, the final strategy will guide the permitting process for offshore wind, as it identifies best practices for data collection and avoidance and mitigation measures. As the Draft Strategy is intended to be a living document that is regularly evaluated and updated as more data emerges on the interplay between offshore wind and NARW, it is imperative that any interested groups participate early and often in development of the final strategy. As an emerging industry, offshore wind is well situated to achieve a balance of reasonable regulation and help promote data collection, research, and recovery of NARW.

Public comment is due on the Draft Strategy by December 4, 2022.

© 2022 Perkins Coie LLP