Washed Up: Tension Between Offshore Wind Development and Marine Mammals
Within the past month, an unprecedented number of deceased whales have washed up on the New Jersey, New York, and other Eastern state shorelines. Local environmental groups are calling on federal officials to investigate offshore wind activities as a potential cause of the whale deaths and to halt any further action until an investigation is complete. Other groups say that the upward trend in whale deaths began long before offshore wind activities and that there is no connection between the whale deaths and offshore wind development. Indeed, since 2017 there has been a documented increased number of whale deaths along the Eastern seaboard. In light of current environmental concerns, offshore wind developers should be cognizant of the potential impacts of offshore wind development on marine life and familiar with federal legislation governing these aquatic species, namely the Marine Mammal Protection Act (MMPA).
The MMPA governs the unintentional “taking” of marine mammals incidental to offshore activities, including construction projects, scientific research projects, oil and gas development, and military exercises. Under the MMPA, Congress declared that “species and population stocks should not be permitted to diminish beyond the point at which they cease to be a significant functioning element in the ecosystem of which they are a part.” 16 U.S.C. § 1361. The statute’s purpose is to establish a nationwide standard on preventive measures for the diminishment of marine mammal species. Three federal agencies collectively implement the MMPA: NOAA Fisheries, the US Fish and Wildlife Service, and the Marine Mammal Commission. See 16 U.S.C. § 1405.
In pertinent part and with exceptions, the MMPA prohibits the taking and importing of marine mammals in US waters. 16 U.S.C. §§ 1371, 1373; see also § 1374. A “taking” is defined as “to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill[,] any marine mammal.” 16 U.S.C. § 1362(13). There are possible civil and criminal penalties for violations under the MMPA. The penalties for a taking include a civil fine for each violation. 16 U.S.C. § 1375. A person who violates any provision of the act knowingly is subject to increased fines, with a possibility of imprisonment. Id. Enforcement of the MMPA entitles authorized personnel to seize any cargo, products, or mammals and arrest and search any person committing a violation under the act. 16 U.S.C. § 1377.
The MMPA further requires investigation and study into the condition of marine mammals to ensure that the optimum sustainable populations of marine mammals are maintained. 16 U.S.C. §§ 1361, 1402. The term “optimum sustainable population” means “the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.” 16 U.S.C. § 1362(9). The goal is to maintain the health and stability of the marine ecosystem. 16 U.S.C. § 1361. This entails determining the measures to be implemented, immediate replenishment of any diminished species, protection of habitats, and encouragement of further negotiations and investigations to promote research on the conservation of marine mammals. Id.