Jeanne M. Grasso, Jonathan K. Waldron, and Stefanos N. Roulakis
Action Item: The National Marine Fisheries Services (“NMFS”) promulgated a final rule identifying critical habitats for the endangered Northern Atlantic Right Whale. Stakeholders involved in spill response, ocean and offshore energy (including renewable energy), fisheries, and other activities requiring federal permits or permission should examine the final rule to determine current possible impacts to activities in the Atlantic Ocean. Additionally, stakeholders involved in industries in the Atlantic Ocean, particularly in the South Atlantic, should consider engaging early with NMFS to minimize permitting delays and costly modifications to plans.
After receiving 261 comments, in addition to thousands of form letters and signatures from petitions, NMFS promulgated a final rule expanding the identified critical habitat of the endangered North Atlantic Right Whale. The areas NMFS identified are off the coast of Maine in the North Atlantic and from the area around Cape Fear, North Carolina, to Cape Canaveral, Florida, in the South Atlantic. The total area covers 29,763 square nautical miles of ocean. On the whole, NMFSs’ interpretive statements and responses to comments demonstrate that the agency believes that current economic activities generally will not be disrupted by the establishment of these expanded critical habitat areas. It is essential, however, that stakeholders with activities in the critical habitats examine the rule closely to ensure compliance. This rule was effective February 26, 2016.
Right whales were identified as endangered species in the 1970s. In response to this designation, NMFS established critical habitat areas in 1994 to encourage their breeding and foraging. Based on biological evidence, NMFS received a petition in 2009 to expand the critical habitat for the North Atlantic Right Whale. On February 20, 2015, NMFS issued a Proposed Rule identifying a habitat largely the same as the 1994 final rule. After receiving 261 comments, NMFS expanded the critical habitat by 341 square nautical miles from what it proposed in 2015.
Effects of the Critical Habitat Designation
A critical habitat designation does not set up a preserve or refuge; it applies only when federal funding, permits, or projects are involved. Under Section 7 of the Endangered Species Act (“ESA”), all federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species, or destroy or adversely modify its designated critical habitat. Accordingly, any activities that require federal involvement in the designated areas may require consultation with NMFS or identification in a permit or environmental impact statement. The restrictions placed on the critical habitat vary between the North Atlantic and South Atlantic. The impact on the South Atlantic is greater largely due to whales calving in these areas. Particular industry sectors may be impacted in various ways as described below.
Offshore Renewable Energy
The North Atlantic has been the hub of offshore energy production in the United States, and the northern areas of the critical habitat fall squarely within the areas of current or ongoing offshore wind projects. The Final Rule notes that current offshore wind projects have met the ESA Section 7 requirements, and that NMFS “cannot currently identify any mechanisms by which the construction, operation or decommissioning of a wind energy project” would impact the critical habitat in the North Atlantic. Those involved in future projects in the critical habitat, however, may have to work with NMFS to ensure their activities do not impact North Atlantic Right Whales. Additionally, potential offshore wind projects in the southern portion of the critical habitat may face a higher burden due to restrictions on activities that impact calving.
In addition to offshore wind, hydrokinetic energy may be a concern in the future. While no projects currently exist, any future projects would have to meet the consultation requirements of the ESA. As with offshore wind, NMFS cannot currently conceive of ways that hydrokinetic projects could impact the northern ranges of the critical habitat. In the southern areas, however, NMFS has identified that hydrokinetic energy installations may pose an issue for North Atlantic Right Whale habitats in the South Atlantic.
Oil and Gas
While no current oil or gas installations exist in the designated critical habitat area, any future projects would need permitting from the Army Corps of Engineers. Additionally, any Liquefied Natural Gas terminals in those areas would require permitting where an impact on the critical habitat may be possible.
In the event of a spill in the critical habitat, the Final Rule would require the U.S. Coast Guard to consider the impact of response measures on North Atlantic Right Whales. While this would not necessarily preclude the use of any spill response tool, it may cause delays in the use of some tools, such as dispersants.
Discharges permitted by the Environmental Protection Agency (“EPA”) in the critical habitat may be subject to the consultation requirements of the ESA. The Final Rule notes that municipal and other discharges from Massachusetts and New Hampshire in particular will be impacted. The EPA may have to consult with NMFS about how vessel discharges may impact North Atlantic Right Whale habitats before issuing the next Vessel General Permit (“VGP”) in 2018. It is unclear if the heightened restrictions in the South Atlantic in particular may require alterations from past practice in the VGP.
The Final Rule goes to great lengths to assure that current gear and fishing practices will not be impacted by the critical habitat designation. However, certain activities and expansions to fishing practice may trigger the consultation requirement of ESA Section 7.
Importantly, NMFS has concluded that transiting vessels, whether military, civilian, or commercial will not impact whales foraging in the critical habitat. NMFS also stated that it is not aware of a federal nexus regarding the routine operation of the ferries such that ferries would be subject to the federal consultation requirements of the ESA.
Owners and operators of offshore facilities, contractors, spill responders, fisheries operators, and other stakeholders should review the Final Rule to ensure compliance. Any future plans which would trigger federal permits or approvals in the designated areas off the Atlantic Coast must consider impacts to North Atlantic Right Whales and their habitat. To minimize any disruption, compliance planning should take place as early as possible. Additionally, stakeholders should consider engaging with NMFS as soon as possible in the planning stages to avoid potentially costly impacts.