Feds play shell game with wind / whale impacts


By David Wojick

NOAA is taking public comments on a massive proposal to harass large numbers of whales and other marine mammals 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’s 2,600 MW offshore Virginia facility, which if built would be the world’s biggest. 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. 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. We already wrote about the Empire Wind EIS saying 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.”

See https://www.cfact.org/2023/04/27/feds-admit-offshore-wind-can-kill-whales/

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. 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 LOA EIS in 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 passing to 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 on 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 a impossible to have an EIS for an action that is never discussed.

It is not like 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.“

See https://www.cfact.org/2022/09/27/how-to-kill-whales-with-offshore-wind/

An EIS for the LOA 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

David Wojick, Ph.D. is an independent analyst working at the intersection of science, technology and policy. For origins see


For over 100 prior articles for CFACT see


Available for confidential research and consulting.

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Dave Fair
May 23, 2023 10:20 pm

The Leftist Brandon (The Big Guy, 10% Joe) has already decided to go full-speed ahead, damn the whales. Their fig-leaf environmental work doesn’t seriously address the dangers to whales, especially the critically endangered North Atlantic Right Whale.

If its something the environmental-nuts don’t like, such as logging, they totally shut down logging in much of the Northwest because of the Northern Spotted Owl (which is the same as all the other abundant Spotted Owls).

William Howard
Reply to  Dave Fair
May 24, 2023 7:28 am

like the eagles they will be sacrificed for the “greater good” – whatever that is

May 23, 2023 10:41 pm

No more wind no more solar, they are too expensive, they do not deliver and they interrupt the generators that do.

May 23, 2023 11:15 pm

I left a comment about them being whale killers, and to look in the mirror every morning knowing so. Also told them to tell their kids every day what they do for a living, killing whales.

May 24, 2023 1:37 am

The new Nantucket sleigh ride. Got to kill the whales to save them…

May 24, 2023 1:54 am

Isn’t this where Greenpeace began, saving whales?

Where are they?

Reply to  HotScot
May 24, 2023 2:25 am

Where are they?

They were last in Geneva and they don’t have time for cetaceans…

…demonstrators on behalf of Greenpeace, Stay Grounded, Extinction Rebellion and Scientist Rebellion also attached themselves to the entrance gates of the event at Geneva airport in the hope of preventing prospective buyers from entering the annual show.

The activists, who were calling for a global ban on the use of private jets because of their carbon footprint, stuck tobacco-style health warning labels on some of the jets at the European Business Aviation Convention and Exhibition…

The so-called climate crisis is a war on humanity, not a crusade to save birds, bats, whales or anything else. Remove the human – as Attenborough tells us – and there’s no problem.

Last edited 8 days ago by strativarius
Reply to  strativarius
May 24, 2023 3:37 am

Darn it, I was too subtle.

Reply to  HotScot
May 24, 2023 4:06 am

But we are on the same page.

Reply to  strativarius
May 24, 2023 5:18 am


Reply to  HotScot
May 24, 2023 5:22 am

And, where are the conservative lawyers. If the roles were reversed, Greenpeace and other left wing activists would be suing in every court to block the sinking of pylons.

David Wojick
Reply to  mohatdebos
May 24, 2023 6:25 am

Several NEPA suits have been filed, with more coming.

May 24, 2023 5:23 am

Whales should benefit from CAGW. — Big seal level rises, more ocean to swim in! Bring it on say the whales..

Tom Abbott
May 24, 2023 7:10 am

Radical Leftists don’t care about people, so we shouldn’t expect them to care about whales, either.

Daniel Church
May 24, 2023 9:16 am

Ship strikes are literally the least of the whales’ worries. The seismic mapping is deafening whales, which kills them in a process that can’t be much less than agonizing. They’re washing up on shore dead. To use the word “harass,” as the government does in the context, is pure Big Brother. The “greens” are green meanies, wolves in sheep’s clothing … evil. They’ve pre-justified the whale slaughter in their icy hearts. But they’ll get on TV for their moral courage, etc. Please continue to oppose them at every turn.

Kevin Kilty
May 24, 2023 1:05 pm

There is supposed to be an Environmental Impact Statement (EIS) for the proposed harassment but it is not there with the proposal….

I know of others. It may be a common practice. Time for everyone to pay closer attention.

Martin Cornell
Reply to  Kevin Kilty
May 24, 2023 7:39 pm

it is common practice for the BOEM to ignore EIS before activity begins. as prescribed by statute. This neglect is done under the “Smart-from-the-Start” program, based on a regulatory initiative that purports to allow BOEM to issue, publish, and award offshore wind leases without satisfying its statutory duty of pre-leasing review. Such action, which counters Federal Law, is the prerogative of Congress, not agencies of the Executive branch.
It is Congress that needs to challenge the BOEM on their arbitrary circumvention of law.

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