Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 303
Offshore Wind Worldwide 2023
the project continues without further
evaluation. If there are anticipated adverse
effects, the agencies engage in a formal
consultation, called Section 7 consultation,
which is designed to last up to 90 days. 34
Within 45 days of formal consultation, NMFS
or USFWS is to issue a biological opinion
that indicates whether an action would likely
jeopardize any listed species or adversely modify their habitat. The opinion also
provides for mitigation measures to allow
for incidental "take" (as discussed below) of
the species and/or to avoid jeopardy to the
species altogether.
BOEM completed an informal consultation
with NMFS to cover site assessment and site
characterization activities. On June 29, 2021,
NMFS issued a Letter of Concurrence (LoC)
that covers these activities with Atlantic OCS
leases.
As a result of this consultation, developers
have to follow certain mitigation, monitoring, and reporting conditions. 35
4.3 Marine Mammal Protection Act
The MMPA was enacted to protect marine
mammals in U.S. waters. Subject to certain
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exceptions, the MMPA prohibits the "take" of
marine mammals by U.S. citizens. Under the
statute, to "take" means to either attempt
to or to actually "harass, hunt, capture or
kill."36 Both NOAA and NMFS oversee require
compliance with MMPA.37
Offshore wind developments include a
number of activities that can affect marine
mammals, during both development and
operation of a facility.38 Both noise and
vessel traffic might adversely affect animal
behavior.39 The U.S. Coast Guard and BOEM
are responsible for navigational safety and
for mitigating vessel-strikes. 40 Other threats
to marine animals include direct or indirect
effects of marine debris, proliferation of nonnative species, and degradation of water
quality. 41
An offshore wind facility can apply for an
"incidental take" authorization, under Section 101(a)(5) of the MMPA. If NOAA finds
that the offshore wind activity will have a
negligible impact on marine animals, it will
issue an authorization within certain limits,
considering the impact and duration of the
activity. 42
34 Id. at Sec. 7 (a)(2); see also https://www.fws.gov/service/esa-section-7-consultation.
35 https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/Protected-Species-FAQ.pdf.
36 https://www.fisheries.noaa.gov/topic/laws-policies/marine-mammal-protection-act.
37 Id.
38 Conducting surveys, installing a foundation and cables, and decommissioning units, are all activities that could cause underwater noise that harms
marine species. https://www.boem.gov/sites/default/files/renewable-energy-program/Final-Summary-Report-for-BMP-Workshop-BOEM-2018-015-%281%29.pdf.
39 Id.
40 Id.
41 Id.
42 https://www.boem.gov/sites/default/files/renewable-energy-program/Day-1_Morning_Carduner_-MMPA-ITA-presentation_BOEM-workshop_3.07.17.pdf.
