By David Wojick

The National Oceanic and Atmospheric Administration is taking public comments on a massive proposal to harass large numbers of whales and other marine mammals off Virginia by building a huge offshore wind complex. There is supposed to be an Environmental Impact Statement (EIS) for the proposed harassment, but it is not there with the proposal.

We are told it is elsewhere, but after searching we find that it simply does not exist. Like a shell game where the pea has been palmed, there is nothing to be found.

First, the bureaucratic background. The wind project is Dominion Energy Virginia’s 176-turbine offshore Virginia facility, which if built would be the world’s biggest to date. NOAA’s National Marine Fisheries Service (NMFS) is proposing to issue a five-year harassment authorization for the construction of this monster. This is about an enormous amount of pile driving, not just a sonar site survey, although there is more of that too.

Technically this is a Notice of Proposed Rulemaking. Here is the announcement:

NMFS has received 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).

There is a handy comment button at the beginning, with the comment period ending June 5. I urge people to comment, especially along the lines discussed below.

An incredible 762 whale harassments are proposed. NMFS notes that this massive action requires an EIS under NEPA. The similar Empire Wind EIS admitted harassment can kill. Here is a key excerpt: “It is possible that pile driving could displace animals into areas with lower habitat quality or higher risk of vessel collision or fisheries interaction.”

So we looked forward with great interest to see how this LOA EIS handles these potentially extreme effects. The basic question is simple — what are the reasonably likely impacts of all this harassment?

Turns out there is no EIS with this NMFS proposal for Dominion. They punt to BOEM’s EIS for the entire project. Here is the announcement:

NMFS proposes to adopt the BOEM Environmental Impact Statement (EIS), provided our independent evaluation of the document finds that it includes adequate information analyzing the effects of promulgating the proposed regulations and LOA issuance on the human environment.

In NEPA-speak, whales are part of the human environment.

The draft BOEM EIS (DEIS) is here:

However the letter of authorization EIS is not mentioned in the six- page Table of Contents. Nor is it one of the 15 Appendices. This is a massive 562-page document, making finding the LOA EIS therein a bit of a shell game. Our approach was to do key word searches. Here are the telling results.

Word searches and findings on the BOEM/Dominion DEIS:

Search on “LOA.”

There is just one occurrence, a reference in Table 40 of the original NMFS application, which is now obsolete. There is no discussion of the impact of the now proposed LOA.

Search on “Authorization.”

There are two clusters of NMFS-related occurrences, both just explaining that the BOEM EIS is the EIS for the harassment authorization. One in the executive summary and a similar one in the main document. There is no discussion of the impact of the authorization. Plus one other occurrence, a reference in passing to the original NMFS application. There are also several references to other agency authorizations. There is no discussion of the impact of the now-proposed Authorization.

Search on “Harassment”.

There are just three occurrences, all in a table of definitions. There is no discussion of harassment, much less the impact of harassment.

In short there is no EIS for the proposed LOA. NMFS might argue that some of the project EIS discussion amounts to an EIS for the proposed regulations and LOA, but it is impossible to have an EIS for an action that is never discussed.

It is not as if they do not know about the issue of the adverse impact of harassment. I actually discussed the likelihood of increased ship collisions from the Dominion project in an article last September, that I sent to key NMFS people. Here is a central excerpt:

Dominion’s Construction and Operation Plan (COP) provides the necessary navigation data in Appendix S: Navigation Risk Assessment. Ironically this assessment is all about the risk to ships, not to whales. The project creates what amounts to an intense noise wall that the whales will undoubtedly go around, either to the East or to the West. Immediately to the East lies the westernmost lane of the very busy coastal ship traffic. To the West lies the equally busy coastal barge traffic. Both are deadly. It seems like the project was deliberately located where there is the least shipping traffic. This would make sense if it were not for the whales. As it is the project closes the low shipping corridor, which the whales undoubtedly use. Being hit by ships is the leading cause of death to the whales.

An EIS for the Letter of Authorization is required under NEPA and until one is produced the LOA cannot be issued, or the regulations thereto finalized. NMFS (or BOEM) must assess the reasonably likely adverse impact of the proposed harassments, with special attention to their causing deadly behavior. That is the law.

The shell game must end.

David Wojick, Ph.D. is an independent analyst working at the intersection of science, technology and policy. He has been on the faculty of Carnegie Mellon University and the staffs of the U.S. Office of Naval Research and the Naval Research Lab.  This article was originally published at cfact.org.