On January 25, the Bureau of Ocean Energy Management (BOEM) and the National Oceanic and Atmospheric Administration (NOAA) Fisheries released a final North Atlantic Right Whale and Offshore Wind Strategy (the "Strategy"). The Strategy expresses the agencies' joint goal of protecting and promoting the recovery of the North Atlantic right whale (Eubalaena glacialis) while responsibly developing offshore wind energy.

The North Atlantic right whale (NARW) population has declined significantly over the past decade. Population estimates through December 2022 indicate that approximately 360 individuals remain, including fewer than 70 of reproductively active females. The primary causes of NARW mortality and serious injury identified by BOEM and NOAA Fisheries are vessel strikes and entanglement in fishing gear, but the Strategy also identifies threats to the species from low rates of female survival, low calving rates, and a male-biased sex ratio, as well as decreased prey abundance, climate-driven changes in habitat, and possibly ocean noise.

Several lawsuits challenging federal approvals for offshore wind projects have asserted claims that the projects did not adequately avoid or mitigate impacts to the NARW, as previously discussed on this blog. In 2023, the federal district court for the District of Massachusetts issued three separate decisions dismissing lawsuits against the Vineyard Wind project, each of which rejected claims relating to impacts to the NARW. All of those decisions are currently being appealed.

The Strategy identifies four primary stressors to the NARW that may result from offshore wind development: noise from survey activities and construction; vessel strike risk; entanglement risk (including via changes in fishing activity resulting from offshore wind development); and potential changes to habitat from offshore wind development.

Specific actions in support of the Strategy's goals are identified under three main headings: (1) Mitigation and Decision-Support Tools; (2) Research and Monitoring; and (3) Collaboration, Communication and Outreach. Appendix B of the Strategy includes detailed lists of specific mitigation and avoidance measures that may be taken to avoid or mitigate impacts to the NARW during specific offshore wind activities. These include reduction of vessel speeds when NARWs may be present and when visibility is poor, use of third-party protected species observers approved by NOAA Fisheries and following approved protocols, and use of shutdown zones where a detection of a NARW will trigger a stop to construction activities. In addition, BOEM will consider recommendations from NOAA Fisheries and attempt to avoid issuing new leases for offshore wind in areas that may impact potential high-value NARW habitat or high-use areas for NARW foraging, migrating, mating or calving.

The Strategy also includes several research efforts designed to improve understanding of how offshore wind development may affect the NARW; these include evaluation of entanglement risk from cables associated with the development of floating wind technology and development of approaches to reduce entanglement risk, efforts to understand how changes in fishing effort resulting from offshore wind development affect the risk profile for NARW entanglement in fishing gear, and the development and implementation of noise reduction performance standards for construction activities.

The Strategy states that BOEM and NOAA Fisheries will continue to update and improve current avoidance and mitigation measures, so the measures identified in the current Strategy may change in the future. Moreover, the Strategy is clear that utilizing the avoidance and mitigation measures listed in it will not ensure that projects or permits will be approved, and that decisions on project and permit approval will continue to be made on a case-by-case basis.

A draft of the Strategy was released for public comment in October 2022. The agencies intend to regularly evaluate and update the Strategy as new information becomes available in collaboration with each other and with other federal agencies and stakeholders.

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