Siting, Wildlife & Environmental Monitoring
Presentation Description: The North Atlantic right whale is currently threatened by low population, higher than normal mortality rates, and lower than normal reproductive rates. Proposed offshore wind projects are located near areas important to the survival of the species. The National Marine Fisheries Service (NMFS) has paid particular attention to the potential impacts of offshore wind development on right whales, including impacts from construction and vessel strikes. Offshore wind developers have proposed extensive mitigation measures in order to avoid incidental takes of right whales and other protected marine mammals, and NMFS has agreed to the use of mitigation.
In April of 2020, a federal court ruled that NMFS violated the law by failing to issue an incidental take statement under the Endangered Species Act (ESA) for harm to right whales that was projected to occur from lobster fishing on the East Coast. NMFS was prohibited from issuing an incidental take statement for right whales by a separate statute, the Marine Mammal Protection Act (MMPA). The conservation groups who successfully sued NMFS over the ESA violation are now seeking an order prohibiting the use of static vertical lines (used for lobster traps) in an area that overlaps with the Massachusetts and Rhode Island offshore wind lease areas.
The presentation will examine the April 2020 ruling as a case study to explain the complex interaction between the Endangered Species Act and Marine Mammal Protection Act. This ruling has important implications for permitting of offshore wind and litigation risk from project opponents. The court's upcoming decision on whether to prohibit static vertical lines in areas off the East Coast may also have implications for mooring cables to be used for floating turbines.