Dear Federal Government: Transparency on Wind and Whales, Please

By Robert Bradley Jr. -- May 16, 2023

“For the foregoing reasons, we respectfully make the following two requests: First that NOAA/Fisheries reopen the public comment period on the CVOW request for an LOA. Second, that NOAA/Fisheries neither consider nor approve the LOA until after the entire NEPA process is concluded and a ROD is issued for the project. Should NOAA/Fisheries deny either of our requests, we will initiate legal action.”

There is an old joke: “When is an environmentalist not an environmentalist?” Answer: “When it comes to Industrial Wind Turbines.” …

I was reminded of this upon reading a respectful, firm letter from the legal council representing free-market organizations to Jolie Harrison, Chief Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. The matter is in regard to Coastal Virginia Offshore Wind Commercial Project – Dominion Application for Letter of Authorization to Take Small Numbers of Marine Mammals, the latest salvo being

a request from the Virginia Electric and Power Company, doing business as Dominion Energy Virginia (Dominion Energy), for Incidental Take Regulations (ITR) and an associated Letter of Authorization (LOA) pursuant to the Marine Mammal Protection Act (MMPA) [for] … authorization of take, by Level A harassment and Level B harassment, of small numbers of marine mammals over the course of 5 years (2024–2029) incidental to construction of the Coastal Virginia Offshore Wind Commercial (CVOW–C) project offshore of Virginia … and associated Export Cable Routes. Project activities likely to result in incidental take include pile driving activities (impact and vibratory) and site assessment surveys using high-resolution geophysical (HRG) equipment.

The April 29th letter from free-market counsel urging transparency of the eco-issues concerning a major wind power development follows:

This firm represents the Committee for a Constructive Tomorrow (CFACT), the American Coalition for Ocean Protection (ACOP), and The Heartland Institute (Heartland)[1] on matters relating to federal and state permitting for the Coastal Virginia Offshore Wind (CVOW) project. All three organizations – CFACT, ACOP, and Heartland – oppose the CVOW project on grounds that it will adversely affect the human and natural environment; pose unacceptable threats to federally-listed endangered species and federally-protected marine mammals; cause environmental damage reaching across the globe; and result in significant and long-lasting impacts on already at-risk populations in the United States and abroad.

On September 15, 2022, the developer of the CVOW project, Dominion Energy (Dominion), applied to the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NFMS) for Rulemaking and a Letter of Authorization (collectively, “LOA”) to take small numbers of marine mammals incidental to construction of the CVOW project. Among the marine mammals identified in Dominion’s take request is the federally-listed and highly-endangered North Atlantic right whale, whose population has declined to approximately 330 individuals.

Unlike Dominion’s prior Incidental Harassment Authorization, which only covered take incidental to site characterization surveys, the requested LOA would cover take caused by construction of the CVOW project itself. Given that the CVOW project has not yet been approved, it is premature for NOAA and NMFS to process Dominion’s LOA request. Doing so would prejudice the NEPA process that is still ongoing. It would also signal that the federal government has already decided to approve the CVOW project, without change and in the absence of a Record of Decision (ROD). In short, any steps taken by NOAA and/or NMFS to process the LOA in advance of the ROD would prejudge and taint the entire project-review process.

The LOA is premature for another reason as well. In October 2022, NOAA and NMFS, along with the Bureau of Ocean Energy Management (BOEM), issued a draft strategy for addressing the impacts of offshore wind development on North Atlantic right whales.[2] That strategy describes how mammal experts, including experts at NOAA/Fisheries, are increasingly concerned that the offshore wind energy projects proposed along the eastern seaboard will cause further loss of North Atlantic right whales, impeding the species’ recovery, and driving it toward extinction.

The strategy document also indicated that the risks posed to right whales by offshore wind projects are not fully understood and require more study. In recent months, whale deaths and strandings have spiked, and there is growing alarm that the construction and operation of offshore wind projects will make a bad situation worse.

Unfortunately, NOAA/Fisheries closed the public comment period on Dominion’s LOA application on October 17, 2022. This means that much of the recent information about the impacts of offshore wind development on the right whale and other marine mammals was unavailable to the public during the comment period. Given that Dominion has asked that the LOA not take effect until March 4, 2024, there is little to be lost by reopening the public comment period so that interested citizens can submit new data on the whale impact issues that have recently come to light.

For the foregoing reasons, we respectfully make the following two requests:

• First, that NOAA/Fisheries reopen the public comment period on the CVOW request for an LOA.

• Second, that NOAA/Fisheries neither consider nor approve the LOA until after the entire NEPA process is concluded and a ROD is issued for the project.

Should NOAA/Fisheries deny either of our requests, we will initiate legal action.

Thank you for your consideration.

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[1] The Heartland Institute is a non-partisan, non-profit research institute that has been in operation since 1984. Heartland is one of the world’s leading free-market think tanks, with a mission to discover, develop, and promote free-market solutions to social and economic problems.

[2] The title of the document is the BOEM and NOAA Fisheries North Atlantic Right Whale and Offshore Wind Strategy.