Offshore Wind Worldwide Regulatory Framework in Selected Countries 5th Edition 2024 - Flipbook - Page 362
United States
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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.
E. 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.49
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.50 The current
position of the Interior Department is that
there is strict liability for incidental take.51
F. National Marine Fisheries Services
The NMFS, also known as “NOAA Fisheries,”
oversees the protection of U.S. ocean resources, helping to ensure safe and sustainable fishery practices and the conservation
of ocean ecosystems. For offshore wind developments, local fishery agencies, councils
and commissions work with NOAA to manage the fish population. NOAA must identify
the fish species that would be affected by an
offshore wind project.
BOEM has adopted draft Fisheries Guidance to provide details for developers to
consider the impacts of offshore wind on
this industry.52 Developers must provide a
communications plan, social and economic
conditions of commercial and recreational
fisheries that may be affected by a project,
and measures to reduce adverse impacts
on commercial fisheries. Consideration has
also been given to compensatory mitigation
measures. BOEM also recommends that
developers meet with commercial fisheries
when developing project design elements to
reduce the risk to fisheries.
49 https://www.fws.gov/law/migratory-bird-treaty-act-1918.
50 https://legacy-assets.eenews.net/open_files/assets/2017/02/21/document_ew_01.pdf.
51 United States Department of the Interior (doi.gov).
52 Reducing or Avoiding Impacts of Offshore Wind Energy on Fisheries | Bureau of Ocean Energy Management (boem.gov).
