Hogan Lovell OffshoreBook 2023 230809 OnlinePDF - Flipbook - Page 304
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Impacts that will last for more than a year
and other serious impacts require a Letter of
Authorization that can extend for up to five
years. 43
Recent focus in the Atlantic has been on the
North Atlantic Right Whale, with recent estimates being that fewer than 350 remain. 44
Developers along with federal regulators are
taking careful measures to ensure that there
is not harmful take of this protected species.
Careful considerations of project siting and
layouts to minimize any impacts are also an
area of focus.
4.4 National Historic Preservation Act
The NHPA requires that BOEM evaluate how
an offshore wind project impacts historic
properties. This assessment is conducted
by BOEM in consultation with state and
tribal historic preservation officers, along
with review by the federal Advisory Council of Historic Preservation. The analysis
determines the scope of review (i.e., the area
of potential effect of the project), and the
identification of historic properties that are
impacted by the project, which typically are
historic properties located onshore in view
of the project. In addition, tribal governments may have cultural values associated
with areas impacted by the project and
must be consulted. It there are adverse
effects to historic properties, then BOEM
must undertake measures to mitigate those
impacts. The process of determining the
United States
effects and mitigation measures is called
Section 106 consultation. For developers,
this process involves extensive modeling,
desktop and field studies, and a focus on
the visual impacts from the shore due to the
wind turbines.
4.5 Migratory Bird Treaty Act
The MBTA makes it illegal "to take, possess,
import, export, transport, sell, purchase,
barter or offer for sale, purchase or barter
any migratory bird, or the parts, nests or
eggs" of a migratory bird species, without a
valid permit. 45
Project developers must consider effects on
birds not only for purposes of environmental stewardship, but also because threats to
birds could open the doors to costly litigation. Bird fatalities have been interpreted by
courts and DOI as a violation of the MBTA
"incidental takings" clause. 46 The current
position of the Interior Department is that
there is strict liability for incidental take. 47
43 https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable.
44 North Atlantic Right Whale | NOAA Fisheries.
45 https://www.fws.gov/law/migratory-bird-treaty-act-1918.
46 https://legacy-assets.eenews.net/open_files/assets/2017/02/21/document_ew_01.pdf.
47 United States Department of the Interior (doi.gov).
