Offshore Wind Worldwide Regulatory Framework in Selected Countries 5th Edition 2024 - Flipbook - Page 360
United States
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Operations planning phase of offshore wind
projects. 36
Congress in June, 2023, enacted legislation
that provides for reforms to the NEPA process, which impacts offshore wind projects.
Provisions include a two-year time limit for
EISs, page limitations, clarity on the data
required for the review, and reduction in the
scope of impacts considered in the review.
Additional permitting reform could occur in
the U.S.
B. Endangered Species Act
The Endangered Species Act (ESA) was
enacted to ensure conservation of the ecosystems on which “endangered species and
threatened species depend” and to “provide
a program for the conservation” of these
species.37 BOEM works with the U.S. Fish and
Wildlife Service (USFWS) and the National
Marine Fisheries Service (NMFS) to ensure
that an offshore wind project is “not likely to
jeopardize the continued existence of federally listed species or destroy or adversely
modify designated critical habitat,” such as
with regard to whales, turtles or birds.
First, BOEM engages in an informal, initial
consultation with USFWS and NMFS to determine what effect the project may have on
the listed species and their habitat. During
this stage, BOEM evaluates the proposed
project and information regarding effects on
the species and issues a Biological Assess-
ment (BA). If there are no anticipated effects,
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.38
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.39
C. Marine Mammal Protection Act
The MMPA was enacted to protect marine
mammals in U.S. waters. Subject to certain
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.”40 Both NOAA and NMFS oversee
36 https://www.boem.gov/renewable-energy/state-activities/vineyard-wind.
37 16 U.S.C. 1531 et seq.
38 Id. at Sec. 7 (a)(2); see also https://www.fws.gov/service/esa-section-7-consultation.
39 https://www.boem.gov/sites/default/files/documents/renewable-energy/state-activities/Protected-Species-FAQ.pdf.
40 https://www.fisheries.noaa.gov/topic/laws-policies/marine-mammal-protection-act.
