Feds To Issue New Opinion On Vineyard Wind's Impact On Whales And Other Marine Life

The federal government issued a new "biological opinion" on the offshore wind power project off Martha's Vineyard and Nantucket, finding that pile-driving noise associated with Vineyard Wind 1 is likely to adversely affect, but not likely to jeopardize, the continued existence of whales, fish or sea turtles listed under the Endangered Species Act (ESA).

"It will have no effect on any designated critical habitat," National Oceanic and Atmospheric Administration Fisheries said in a statement. "NOAA Fisheries does not anticipate serious injuries to or mortalities of any ESA-listed whale including the North Atlantic right whale." The agency said that with mitigation measures, "all effects to North Atlantic right whales will be limited to temporary behavioral disturbance."

NOAA Fisheries said Friday it was issuing its new opinion to the "federal action agencies" including the Bureau of Ocean Energy Management (BOEM), which approved the Vineyard Wind 1 Project in 2021 and oversees offshore wind power development in federal lease areas.

The full opinion itself was not available. NOAA said Friday that it will be available upon publication in its library in about 10 days.

The opinion, which stems from work that began in the spring, replaces a 2021 NOAA opinion. A NOAA official said that Section 7 of the ESA requires all federal agencies to "ensure any action that they authorize, fund or carry out is not likely to jeopardize the continued existence of any listed species or destroy or adversely modify any designated critical habitat."

Following the 2021 opinion, the official said, a consultation was reinitiated to consider effects of the proposed issuance of a new Marine Mammal Protection Act Incidental Harassment Authorization "which would authorize the incidental take of a small number of marine mammals due to exposure to noise during impact pile driving for the 15 remaining monopile foundations."

"This Opinion includes an Incidental Take Statement, which provides an exemption from the ESA’s prohibition on take of ESA-listed species," NOAA Fisheries communications specialist Andrea Gomez wrote in an email to the News Service. "It identifies the number of whales and sea turtles that we expect to be harmed ... and temporarily harassed by pile driving noise, the number of sea turtles we expect to be hit by project vessels and injured or killed, and the number of sea turtles and Atlantic sturgeon we expect to be captured and released alive and without injury during trawl surveys that will be carried out to assess impacts to fisheries resources in the area. It also includes mandatory measures for minimizing, monitoring, and reporting those effects."

On Saturday, a New England Aquarium aerial survey team detected the presence of right whales southeast of New York and redetected the presence of right whales southwest of Martha’s Vineyard. Right whale slow zones are in effect for mariners through Sept. 8.

"Endangered North Atlantic right whales are approaching extinction," NOAA Fisheries said Monday. "There are approximately 360 individuals remaining, including fewer than 70 reproductively active females."

The local Nantucket group that is suing Vineyard Wind, ACK For Whales, is planning to take its legal challenge to the U.S. Supreme Court after an appeals court rejected its complaint. The group, which is also calling for a moratorium on offshore wind energy developments after Vineyard Wind's blade failure on July 13, issued a statement Tuesday challenging the conclusions of NOAA Fisheries' new biological opinion, and criticizing its decision to release a summary but postponing the disclosure of the full report.

"We are disappointed NOAA announced the conclusions of its bi-op on the Vineyard Wind 1 construction without releasing the report or the data on which it relied," ACK For Whales stated. "NOAA’s own data show that in 2023, there were 151 marine mammal strandings in Massachusetts alone with 75 occurring from Jun 2023 to Dec 2023, the months that pile driving was active. This compares to 77 strandings for all of 2015, before OSW activity started – essentially a 100 percent increase. Most of those strandings in 2023 (n=55) occurred from Oct to Dec when VW was racing to get foundations installed. Out of the 47 bases installed in 2023, 68 percent were installed in the last three months of the year."

The group questioned whether there was an adequate number of protected species observers in the Vineyard Wind lease area when pile driving was underway late last year, and emphasized that the vast areas assigned to each observer was too large for them to properly document the wildlife that may have been near the areas where pile driving was occurring.

"Vineyard Wind was required to increase the area that its protective species observers were looking by a 1-mile radius," the group stated. "This doubled the area that was searched before and during pile driving from 20 square miles to 40 square miles. This is a significant area for an individual to search. We are not at all confident that the observers could see the wildlife in the area. We also know that each report we reviewed, the PSOs complained that machine listening for wildlife worked poorly in the noise environments and most of the animal detections were made with the unaided eye or with binoculars."

According to a recent NOAA Fisheries communication, BOEM requested "emergency section 7 consultation" with NOAA Fisheries in response to the July 2024 blade failure at the Vineyard Wind lease area and the resulting release of debris. The emergency consultation is ongoing. "NOAA Fisheries has provided recommendations to minimize effects to ESA-listed species during the response action through that consultation process," according to the communication. "Once the emergency response actions are complete, that consultation will be completed."