Current regulatory framework
OSW development currently implicates a patchwork of federal environmental statutes, such as the Endangered Species Act (ESA), Marine Mammal Protection Act (MMPA), Migratory Bird Treaty Act, National Environmental Policy Act, Coastal Zone Management Act, and the National Historic Preservation Act. Various federal agencies are involved in applying these regulations to OSW development, such as the Bureau of Ocean Energy Management (BOEM), National Oceanic and Atmospheric Administration, NMFS, and U.S. Coast Guard. For instance, the ESA requires BOEM to consult with NMFS for species under NMFS’ jurisdiction, which includes several whale, turtle, and fish species. Meanwhile, the MMPA provides a general moratorium on the take of marine mammals but allows for various exceptions; most exceptions involving OSW typically implicate the underwater noise associated with turbine installation.
Acknowledging the need to update its regulations governing OSW for the first time since 2009, BOEM published the proposed Renewable Energy Modernization Rule on January 30, 2023. If enacted in substantially similar form as proposed, this rule would represent an important step toward streamlining the regulation of OSW development, without disregarding the potential risks to marine taxa. Significantly, proposed changes to 30 C.F.R. section 585.103, which governs when BOEM may prescribe or approve departures from the regulations, would add flexibility for when BOEM determines the regulations “[a]re impractical or unduly burdensome and the departure is necessary to achieve the intended objectives of the renewable energy program,” while maintaining existing flexibility for protecting the environment, wildlife, natural resources, and archaeologically or historically important sites.
Implementing an adaptive and coordinated management framework for OSW
A recurring theme throughout scientific literature is that many effects of OSW development on marine taxa simply remain unknown at this time. Therefore, an adaptive management framework is surely a necessary component of regulatory decisions going forward. Moreover, the patchwork of existing federal environmental statutes applicable to OSW development yet again highlights the need for a more unified governance framework for the oceans. The perceived conflict between OSW development and marine conservation is unnecessary and should largely be avoidable if more adaptive and robust regulations are put in place. BOEM’s proposed rule is a fine start. An adaptive and coordinated management framework should help facilitate the transition to greater reliance on OSW without sacrificing other environmental interests in marine conservation.