Federal Lawsuits Filed to Protect Endangered Whales from Offshore Wind

By B.N. Frank

Despite high costs, opposition, and warnings, the Biden Administration made plans for floating offshore wind turbines and formed a federal-state offshore wind partnership with administrations in 11 states (see 1, 2). More recently it was announced that at least some of these offshore wind projects will be delayed due to costs and other obstacles. Nevertheless, warnings about proposed U.S. offshore wind projects as well as opposition to them continue to increase.

From Wind-Watch:

NOAA scientists propose more protection for right whales in offshore wind area

Letter from fisheries agency proposes turbine-free zone that borders and overlaps wind energy area near Nantucket and Martha’s Vineyard.

“Tux” breaches in the Bay of Fundy, revealing his white belly. Credit: Photo taken by the New England Aquarium under DFO Canada SARA permit.

As America’s offshore wind industry gets ready to launch new clean energy projects off the coast of Martha’s Vineyard, conservationists and federal scientists have communicated worries over how the installations could harm the endangered North Atlantic right whale, now numbering an estimated 340.

In light of these potential threats, a federal scientist proposed a “conservation buffer” zone – or area of no wind turbines – of about 10 nautical miles adjacent to the Nantucket shoals and seemingly overlapping with offshore wind development planned in southern New England.

Sean Hayes, chief of the protected species branch at NOAA’s Northeast Fisheries Science Center (NEFSC) and the letter’s signatory, proposed the buffer zone in a letter this spring to the Bureau of Ocean Energy Management (BOEM) – the lead regulator for offshore wind development. According to maps of the wind lease areas, the proposed 20-kilometer buffer beginning at an area called the “30-meter isobath” in the shoals appears to overlap with an eastern portion of the Massachusetts-Rhode Island wind energy area.

Hayes told The Light a buffer zone could also be explained as an area of “no surface occupancy,” meaning no turbines in portions of a lease area.

“Half Note” and her calf, sighted in January 2022 off of Georgia. Credit: Photo taken by Clearwater Marine Aquarium Research Institute under NOAA permit No. 20556.

Asked about the proposed buffer zone and whether BOEM has approved or established it, an agency spokesperson referenced the Mayflower Wind project, saying by email that BOEM is considering all comments made during the scoping period for the Mayflower project, and that it expects to publish a draft environmental impact statement early next year that will address Hayes’ concerns.

Hayes through a spokesperson declined a follow-up interview to answer further questions, and when asked, NOAA Fisheries did not confirm what wind lease or leases Hayes was referencing in his letter, which only stated “initial proposed development.”

“We are primarily concerned about development in the areas with the highest degree of overlap,” a NOAA Fisheries spokesperson wrote, adding the risks are “potential and not certain,” and that the agency is collaborating with BOEM on a “range of options.”

Scientists in a 2022 New England Aquarium-led study found an increasing trend of right whales in the waters off of Martha’s Vineyard and Nantucket during all seasons (instead of just in the winter and spring) and cited climate change as a possible driver with a warming ocean shifting the whales’ feeding and migration patterns.

NOAA Fisheries submitted a public comment to BOEM for the Mayflower Wind project several months before Hayes’ letter (sent in May of this year) that included a similar proposal. While not explicitly mentioning a conservation buffer zone, it recommended BOEM in its environmental impact statement (EIS) include a project alternative of no turbines in a portion of the lease.

“We recommend BOEM evaluate in the EIS an alternative that limits the portion of the lease where [wind turbine generators] can be installed, which would result in no [wind turbine generators] in the northern portion of the lease area,” said the comment letter. “This alternative would reduce project overlap with some of the highest documented densities of North Atlantic right whale aggregations in the lease area …”

This map shows a major portion of the Nantucket Shoals in relation to planned wind lease areas. The location of geographic features and wind lease areas is approximate. Credit: Kellen Riell / The New Bedford Light. Sources: Bureau of Ocean Energy Management, Paper: “Spatial ecology of long-tailed ducks and white-winged scoters wintering on Nantucket Shoals”

The 800-megawatt Mayflower Wind project is currently under review by BOEM. Asked if the company is planning to establish turbine-free areas in the lease as a potential mitigating measure for the right whales, Daniel Hubbard, director of external affairs and general counsel for Mayflower Wind, said by email that they are reviewing information and that “as the permitting process progresses, as with all material presented, we will take it into consideration.”

Hubbard noted that as of this time, they have not changed the project’s one-by-one nautical mile turbine layout – a spacing recommended by the U.S. Coast Guard.

‘The perfect storm’

In his letter, Hayes wrote the focus of the memo was on the operational effects of offshore wind and potential oceanographic impacts that could drive how the whales’ prey is distributed. He also noted potential increased risk to the whales due to increased vessel traffic and noise.

“However, unlike vessel traffic and noise, which can be mitigated to some extent, oceanographic impacts from installed and operating turbines cannot be mitigated for the 30-year lifespan of the project, unless they are decommissioned,” the letter states.

Research has found turbines will likely affect tidal currents and the water column in which zooplankton (right whales’ food) are found. Whales require dense collections of zooplankton, and any disruptions to that could have “significant energetic and population consequences,” Hayes wrote, particularly for their winter feeding area.

“It’s like the perfect storm of what could go wrong,” said Erica Fuller, a senior attorney at the Conservation Law Foundation (CLF).

Fuller said the area in and around the New England waters where wind development is set to take place was poorly surveyed for right whales before the federal government identified it for multiple energy leases. In recent years, aerial surveys have shown it’s become a year-round foraging habitat for the whales.

The North Atlantic right whale, which was hunted by whalers into the 20th century, is approaching extinction with its numbers continuing to decline, according to a report last month from the North Atlantic Right Whale Consortium.

After centuries of being hunted, the whales have been harmed by modern threats – dying from vessel strikes and entanglements with fishing gear, birthing fewer calves, and facing impacts from other stressors, such as climate change. Offshore wind development, backed by the Biden administration to address the urgent climate crisis already changing ocean ecosystems, is now presenting another possible threat.

A NOAA spokesperson said the intent of Hayes’ letter was to encourage the development of scenarios that avoided the highest risk areas, as the agency is primarily concerned about development in areas that overlap with whale sighting data and habitat models.

The letter, which The Light obtained through a Freedom of Information Act request, stated that concentrating development to the “southwest and creating a conservation buffer adjacent to the Shoals” is expected to reduce overlap with construction, operations, maintenance, vessel traffic and potential changes in commercial fishing activity.

Fuller, who previously worked as a veterinarian and now specializes as an attorney on protected species issues, said if noise from the operation of a wind farm keeps the whales from using the area to forage, then they don’t have a substitute winter feeding site.

She said there are tools to address the growing threat from increased vessel traffic and any added risk of entanglements, such as vessel speed restrictions and seasonal gear closures. Effects of construction noise on behavior, ecosystems and prey, however, is a bit of an unknown, she said.

Hayes’ letter addresses such uncertainties, noting the scale of impacts is difficult to predict, and that the offshore substations (structures that collect and send the power to land) also present an unknown risk to the whales’ prey.

BOEM’s response

Hayes noted during a brief conversation with The Light that the letter was a collective effort by staff at the science center, which is regularly communicating with other agencies, including BOEM, to determine how best to co-manage the area given the presence of right whales.

The letter was addressed to Brian Hooker, the lead biologist for BOEM’s Office of Renewable Energy Programs. The Light requested an interview with Hooker, but a BOEM spokesperson said he was unavailable.

BOEM Director Amanda Lefton, when asked last month if BOEM is considering creating any buffer zones for the whales, told The Light the agency is working in conjunction with NOAA Fisheries on a mitigation strategy for the whale as it relates to offshore wind development.

“We are really focused on making sure that we approach this issue as well as we can,” she said.

“I really want to be able to look at this comprehensively and thoughtfully and based off of the best available science to ensure that we are truly doing what we can to ensure that there are not further impacts from offshore wind,” she added. “As we all know, this species is critically endangered and it’s before we have this activity in the water, right?”

Credit: NOAA graphic

Late last month, the agencies released a draft strategy that is open for public comment through early December. According to the draft, BOEM will consider recommendations from NOAA Fisheries and attempt to avoid issuing new leases in areas that may impact areas important to the whale’s foraging, migrating, mating or calving.

The agencies said they intend it to be a “living” document, meaning it can be updated as new science and information become available.

Asked if the draft strategy recommends or encourages no-turbine areas for the purposes of right whale protections, a BOEM spokesperson said by email that it does not, but that it contains “key research questions” that could help inform decisions, “including those regarding buffer zones and no surface occupancy mitigations.”

The draft strategy establishes that if issuing new leases in areas is not avoidable, then BOEM will work with NOAA Fisheries to minimize development and require measures to avoid and minimize impacts due to construction and operation. BOEM may also require a developer to submit a revised plan if previously authorized activities are discovered to be inadequate to protect the right whales under federal standards.

Mitigation measures for the whale

As part of their project approvals, developers have requirements in place that dictate, for example, under what conditions they can pound the turbine foundations into the seafloor and during which months. This includes establishing a zone in which no whales may be observed for a given period before the construction can commence. If an observer sees a whale but cannot confirm what type, they must assume that it is a right whale.

Projects are required to use acoustic monitoring as well as protected species observers, and project vessels will have to follow federal regulations on speed in order to reduce the risk of vessel strikes.

Through federal authorizations, the government limits how many individuals of a given species can be incidentally (not intentionally) harassed, disturbed or injured by an activity. Commercial fishing is an existing industry that has operated with such authorizations, which are now being reviewed and given to wind developers.

As federal agencies work on co-managing this issue to protect endangered species while working to meet offshore wind goals by 2030, they are also facing federal lawsuits over the whales and wind development.

Nantucket Residents Against Turbines is engaged in a federal lawsuit against BOEM, NOAA Fisheries and others over the Vineyard Wind project, alleging the wind farm (through both its construction and operation phases) will threaten the right whale. The suit earned support from a former member of President Donald Trump’s EPA transition team, who is also part of a coalition fighting offshore wind development along the coast, E&E News reported.

A Connecticut solar developer is suing the assistant administrator of NOAA Fisheries over an authorization it gave to the Vineyard Wind project regarding the whale and other marine species.

Fuller said there are two urgencies at this time: addressing climate change, and protecting the endangered North Atlantic right whale. The Conservation Law Foundation is committed to addressing climate change and strongly supports offshore wind, when developed responsibly, as one way to do it, she noted.

“There is a tremendous amount of uncertainty with both the noise associated with construction, and unfortunately the impact that the farm might have in terms of habitat displacement in what’s turned out to be critical right whale foraging habitat in southern New England,” Fuller said. “We’ve never had so many threats facing this species … We’re about to enter a new phase of offshore wind in the Gulf of Maine, which is designated critical habitat for right whales … We have a chance to get it right.”

Source: by Anastasia E. Lennon | November 3, 2022 | newbedfordlight.org

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Opposition to wind turbines and farms is likely to increase worldwide until significant biological, economic, environmental, and safety issues – including fires (see 1, 2), noise, and toxic emissions– are eliminated or greatly reduced (see also 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28). In September a lawsuit led to two turbines being demolished in Massachusetts and last month Page County, Iowa residents filed a lawsuit to stop a proposed wind project.