Offshore Wind: Regulatory “Takes” – Take a Close Look

On April 30 the National Oceanic and Atmospheric Administration (NOAA) published a notice, requesting public comments, on a proposed “incidental harassment authorization” (IHA).  An IHA is a legal and enforceable document presenting the terms and conditions with which a company must adhere in order to protect wildlife.  In this case, the draft IHA was for Vineyard Wind, the wind energy company ready to start construction on an 800 MW offshore wind farm in the Atlantic, covering about 675 square kilometers, starting 14 miles from the coastline of Martha’s Vineyard.  This would be the first large-scale, ocean-based US wind energy project, consisting of up to 100 wind turbine generators (WTG), an onshore substation, offshore and onshore cabling and onshore operations and maintenance facilities.  Water depths are between 37-49.5 meters (121-162 feet).

An IHA is required by the Marine Mammal Protection Act (MMPA) because, obviously, a huge project like this has impacts and it’s likely that “take” of marine mammals will occur during construction.  “Take” is an interesting word within this regulatory specialty.  It can mean anything from killing or wounding an animal to “harassment” – of which there are two Levels – A and B.  Level A harassment has the potential to cause injuries; Level B has the potential to disturb, but not directly injure, a marine mammal or stock, e.g., migration, breathing, nursing, breeding, feeding, or sheltering.  Vineyard Wind, and National Marine Fisheries, do not expect the project to cause mortalities or serious injuries; hence, the “harassment” filing is deemed appropriate.

For maritime companies experienced with ocean energy projects, such as oil and gas, these are not new concepts and regulatory demands.  The MMPA was passed in 1972 and updated over the last 47 years.

Along the Atlantic, however, there is no ocean-based energy construction industry comparable to, say, the Gulf Coast.  For many east coast maritime companies curious about bidding on offshore wind contracts this is new.  Indeed, creating business and employment opportunities is a central goal among east coast governors who want people to get on this band wagon.  New opportunities are great, of course, but offshore wind is still set within well-established and complex regulatory and enforcement regimes.  For companies looking to move into the energy field, there are lessons within Vineyard Wind’s incidental harassment authorization; those lessons deserve a close look.
The Marine Mammal Protection Act requires exacting teamwork between a company in receipt of a “take” permit and the project’s contractors and subcontractors.  This is not a workspace that can tolerate a casual attitude.

An approved IHA will offer a “safe harbor,” if you will, to Vineyard Wind for unavoidable takes of marine animals.  But how far does that safe harbor provision extend for a contractor?  How is liability affixed if Vineyard Wind does everything right, but a novice contractor does something wrong, not intentionally, but nevertheless, something that shuts down the project?  Does Vineyard Wind’s IHA serve as an umbrella, providing cover for everyone who’s hired, or does it just cover Vineyard Wind’s operations and personnel?

The answers are, well, complicated.  Not straightforward.  Labyrinthine.  Each case is unique.

If you want to move your company into emerging offshore wind projects, invite your maritime attorney to lunch, now.  Hopefully, based on his or her counsel, your next steps will be clear and decisive.  In general, though, the bigger picture is harder to bring into focus.
The primary concern within Vineyard Wind’s IHA is controlling and attenuating noise and related acoustical repercussions from pile-driving, installing the vertical infrastructure to support wind towers.  These sounds impact numerous species – whales, dolphins, porpoises and seals.  Some of these animals – the North Atlantic right whale, for example – are among the most protected classes of wildlife.

For North Atlantic right whales, again, as example, the IHA requires “enhanced clearance measures,” including extended clearance zones, that must be monitored.  If a right whale is detected, pile driving must be delayed, and not resume until the next day, or surveys “confirm all right whales have departed” the clearance zone.  There’s no room for error.  The IHA proposes that zero North Atlantic Right Whales can be subject to Level A harassment, while 20 can be subject to Level B.  That’s during the entire IHA timeframe, around one year, presumably to start in 2020.    The stakes are high.  Wildlife experts write that in the last two years at least 20 right whales have been killed and the population is now estimated to be no more than 420 individuals.

In contrast, thirty-five Common Dolphins can be subject to Level A and 4,646 to Level B.  Still, if dolphins are nearby, work must stop.  It can restart when the mammal “has voluntarily left the respective clearance zone and been visually confirmed beyond that clearance zone, or, when 30 minutes have elapsed without redetection.”

Note the reference to “visually confirmed.”  All vessels in the ocean work area will be required to employ PSOs – “protected species observers.” 

Crews are required to have specific training in wildlife avoidance, which has to be documented and reported.  If take occurs beyond what the IHA allows, that negligence may result in IHA “modification, suspension, or revocation.”  For work to restart, depending on circumstances, an evaluation is required for each pile, not the entire work zone.  The point is, a company may originally commit vessel and crew for two days or two weeks or two months; actual demands may be far different.

Jolie Harrison is NOAA’s Chief of the Permits and Conservation Division within the Office of Protected Resources.  When asked about IHAs and liability issues, Harrison explained, in an email, that –

“An IHA limits liability of the IHA holder (and potential designees) for the take described in the authorization resulting from activities described in the authorization, provided required mitigation and monitoring measures are implemented.”

She said that work that is delegated – say, in this case, by Vineyard Wind to a contractor – becomes a shared responsibility between the two companies to ensure compliance which then limits liability.  Importantly, the IHA holder and the contractor could be held liable for “any take not in compliance with the specific authorization.”

A basic “take” concept is that an event can be considered an accident only if a company can document that it has done everything possible to avoid an accident.

NOAA was asked what happens if a contractor’s vessel strikes, say, a whale, injuring it or, worse, killing it.  In a way, that’s a naïve question. 

Maritime managers likely know, NOAA explains, that “only the US Navy is authorized for the mortal take of whales from vessel strike off the East Coast” (but that does not include right whales).

Again, NOAA considers it generally “unlikely that ‘normal’ vessel operation will result in marine mammal take, and NOAA Fisheries does not advise operators conducting ‘normal’ vessel operations to request incidental take authorization.”  NOAA does recommend –

“that vessels operating a fairly high-energy underwater sound source (such as seismic airguns, tactical sonar, sub-bottom profilers, or multi-beam echosounders) or towing gear that could cause entanglement or injury request incidental take authorization.”

Finally, Harrison advises that “each project is different, so NOAA's Permits and Conservation Division is available to answer questions about specific activities and provide case-specific input.”

Questions about vessel strikes, though, are hard to tamp down.  True, under “normal” conditions a strike may seem unlikely.  For an animal, though, pile driving may prompt careless, reckless, panicked behavior.  Flight could be directly towards an incoming supply vessel properly transiting, at a speed set within the IHA, an approved shipping lane.  In comments to NOAA, a group of conservation and environmental groups reference the concern that federal agencies have not considered -

“the potential for acute synergistic effects from multiple activities taking place at one time, or from offshore wind activities in combination with other actions. For example, the agency does not consider the greater susceptibility to vessel strike of animals that have been temporarily harassed or disoriented.”

Despite the presumed low risk of a vessel strike, the IHA sets demanding requirements for PSOs, required on every project vessel.  Sometimes, there needs to be a PSO just to watch for right whales.  If this work is similar to positions in the fishing industry, these observers are not amateurs, handed a pair of binoculars and placed on watch.

From the IHA it’s not clear who has to hire the PSOs and provide their training, nor even what constitutes “training;” maybe that’s a video watched during lunch, maybe it’s much more substantive.  Again, the concern here is that in this new business, with a public policy goal of attracting businesses, new companies will face issues that may never have been part of their maritime work experience.  Are there liabilities if the training expected by Vineyard Wind – but delivered by a contractor – is deemed inadequate?  (Training and PSO questions were not answered, by this report’s deadline, by NOAA or Vineyard Wind.)

In comments to NOAA The Atlantic Offshore Lobstermen’s Association suggests a -  

“Third-party certification program, like the (federal) system used for fishery observers, which sets universal standards for all wind projects and requires reporting after each construction activity/trip.”

In a new industry even old and familiar concepts can present as new.  For wind developers and for people looking to work in this new energy sector, these operational questions will eventually get worked out.  The first project teaches the most important lessons.  Pay close attention if you cast off into these waters.