Is Dominion’s offshore wind project ‘arbitrary and capricious’? NOAA says YES!

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By Collister Johnson

Recently, the National Oceanic and Atmospheric Administration (NOAA) has been issuing a raft of “Incidental Harassment Authorizations” (IHA) to offshore wind developers. The IHAs allow the developers to “harass” marine mammals – including critically endangered Right Whales – as long as the activity is “incidental” to some form of offshore wind development approved by the authorities.

When the Marine Mammal Protection Act (MMPA) was passed by Congress the lawmakers had in mind ‘incidental’ activities such as marine research work. Wind developers, however, have been applying for these permits as part of their “preconstruction” work – primarily sonar mapping of the ocean floor to plot the placement of connector cables and wind towers. Over the last two years, 16 of these IHA’s were approved by NOAA for developers of wind generation projects up and down the East Coast. Each of them allowed “incidental” activity only for a period of one year.

Just as critics of these IHAs feared, after these permits were authorized and preconstruction activity began, dozens of dead whales and dolphins started washing up on beaches from New York to Virginia. This prompted NOAA to issue a “Notice of Unusual Mortality Event”, which didn’t suspend the sonar mapping but did indicate that NOAA finally recognized, in the famous words of Apollo 11, “Houston, we have a problem”.

Now comes the granddaddy IHA application of them all:  A request by Dominion Energy for an IHA lasting five years.  Why?  Because it is seeking permission to harass marine mammals in conjunction with its effort to build a massive, 176 turbine, offshore wind project located 27 miles off the coast of Tidewater Virginia.  If approved, it would be the largest offshore wind project in the world.

To obtain this IHA, Dominion had to “open the kimono” about its project. That is, for the first time it had to describe exactly what this so-called incidental activity might actually involve.

And it is an eye-opener.

A total of 107 different ships, some as large as 538′, would ply the waters of Virginia for five years, taking thousands of trips to and from the project and the port of Hampton Roads, thus increasing substantially the probability of ship strike fatalities, the leading cause of anthropogenic marine mammal deaths.

Whales and dolphins beware: The sonar mapping would continue non-stop, often conducted “daily”. The wind tower construction and cable dredging would take place for 6 months out of the year. In toto, it amounts to a gargantuan industrialization of the hitherto open ocean waters – a monster factory (not a “farm”) larger than Yellowstone Park that would stand in the salty, corrosive waters of the Atlantic for 20 to 30 years. Then, at the end of its useful life, it will have to be torn down – “decommissioned” – with most of the remains dumped in landfills, because the bulk of the hardware cannot be recycled.

This proposed project raises an important question: What will happen to the marine environment after this factory is installed? True environmentalists especially want to know what will happen to endangered species, such as the Right Whale, only about 350 of which still exist and whose migration path lies directly within the boundaries of the project.

NOAA states on at least three separate occasions in the IHA that “no serious injury or mortality of whales is anticipated or proposed from authorization” of the project. This is a strange way to describe their conclusion of “no impact”. Not that “there will be no human caused mortality”, nor that “there will be negligible human caused mortality”. Rather, just that human caused mortality is “not expected”.

Upon further examination it appears Dominion may have opened its kimono a little too far.

Every endangered species on the Federal endangered species list is given a designation by the National Marine Fisheries Service (NMFS –  a subsidiary of NOAA) called the Potential Biological Removal rate (PBR). The PBR is defined by the MMPA as “the maximum number of individuals, not including natural mortality, that may be removed from a marine mammal stock while allowing that stock to reach its optimum sustainable population”.

NMFS has declared the PBR for the Right Whale to be 0.7. This means, in NOAA’s own words, that “the population cannot sustain on average over the course of a year the death or serious injury of a single individual due to human causes”.

That’s right. This massive industrialization of the Right Whale environment can not cause even one Right Whale death per year over a period of 5 years.

And here comes the stunner. Dominion recognizes the determination by NMFS that the annual human caused mortality rate for the Right Whale caused by the project is eight point one. This means that in NOAA’s own opinion there will be eight human caused dead Right Whales caused by the project every year, even though the allowable amount is zero.

The courts have found this kind of circumstance to be prima facie evidence that the regulation is “arbitrary, capricious, and an abuse of discretion”. That is, there is a fatal, internal inconsistency in this regulation which predicts one outcome (8 human caused deaths) while simultaneously mandating an outcome that is completely contrary (zero human caused deaths).

Dominion tries to save this obviously illegal result by adding language which states that the eight point one human-caused mortalities may be “from all sources combined” ( e.g. commercial fisheries, ship strikes, etc). But no amount of tortured rationale can save NOAA from its own interpretation that the project will result in human caused deaths of the Right Whale. (e.g., whale deaths caused by commercial fishing, if any, have nothing to do with the Dominion project.)

Oops. Dominion just let the cat out of the bag, and the evidence is right there in their IHA application. This project should be and will be struck down by the courts, not only because of the admitted Right Whale deaths, but also because of a host of other procedural and substantive errors committed by NOAA and BOEM while they attempt to bulldoze this project and all the other offshore wind developments through the regulatory system.

It will be good riddance. Whale-killing factories were outlawed a long time ago. This one should be too.

This article originally appeared at Real Clear Energy


  • Collister JohnsonCollister Johnson
  • Johnson has spent the last four decades working in the public and private sectors in Virginia, primarily in the fields of project finance and maritime transportation.
  • He began his career in public service as Chairman of the Board of the Virginia Port Authority.
  • He was appointed by President George W. Bush, and confirmed by the Senate, as a member of the Overseas Private Investment Corporation, and most recently, as Administrator of the St. Lawrence Seaway Development Corporation.
  • In that capacity, he became knowledgeable in the field of climate and its impact on the Great Lakes.
  • He currently serves on CFACT’s Board of Advisors. Johnson holds a B.A. degree from Yale University, and a J.D. from the University of Virginia.

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