H.R. 6008

Statement for the Record
Bureau of Ocean Energy Management
U.S. Department of the Interior
Before the
House Natural Resources
Subcommittee on Water, Wildlife, and Fisheries
On
H.R. 6008, To prohibit the implementation of certain documents until the Assistant
Administrator for Fisheries of the National Marine Fisheries Service issues documents
relating to the Rice’s whale

October 25, 2023

Introduction

The Bureau of Ocean Energy Management (BOEM, Bureau) within the Department of the Interior (Department) appreciates the opportunity to provide feedback on legislation related to the Endangered Species Act (ESA) consultation and Rice’s Whale in the Gulf of Mexico.

BOEM is taking a leading role in transitioning the U.S. to a clean energy future – one that will advance renewable energy, create good-paying jobs, and ensure economic opportunities are accessible to all communities. BOEM is working with Tribal Nations; Federal, state and local governments; underserved communities; ocean users; and key stakeholders to ensure that any future offshore energy development is done safely and responsibly and relies on the best available science and Indigenous knowledge. Together with our partners, we can move forward with offshore energy development in a way that helps create a cleaner, more sustainable energy future for our Nation.

The ESA and resulting consultations are fundamental for preventing the extinction and promoting the recovery of imperiled species, and conserving the habitats upon which they depend.

The Bureau strongly supports safe and responsible domestic energy production that relies on the best available science. Accordingly, the Bureau does not support the goals of H.R. 6008 to prevent enforcement of the voluntary recommendations in the Notice to Lessees that were provided as precautionary measures to protect the Rice’s Whale in the Gulf of Mexico. We appreciate the Subcommittee’s interest in this topic and welcome future opportunities to work together on these critical issues.

Background

On October 25, 2022, BOEM, along with the Bureau of Safety and Environmental Enforcement (BSEE), formally requested reinitiation of consultation with National Ocean and Atmospheric Administration (NOAA) Fisheries on the 2020 Biological Opinion on the Federally Regulated Oil and Gas Program Activities in the Gulf of Mexico (BiOp), pursuant to Section 7 of the ESA.

The reasons for requesting to reinitiate the consultation included:  (1) reevaluation of the oil spill risk analysis in the BiOp in response to a new oil spill risk analysis that was performed by BOEM, and (2) incorporation of conditions of approval developed with NOAA Fisheries that are related to impact pile driving for Outer Continental Shelf (OCS) oil and gas activities, and to potential transit of OCS oil and gas activity vessels through the core Rice’s Whale Area that NOAA Fisheries identified in the 2020 BiOp reasonable and prudent alternative. The reinitiation request also stated that the Bureaus may seek to conference on critical habitat for the Rice’s Whale if it is proposed during the consultation. Thereafter, NOAA Fisheries published a proposed critical habitat designation for Rice’s Whale on July 24, 2023, which includes all marine waters between the 100-meter (m) and 400-m isobaths in the Gulf of Mexico from the U.S. Exclusive Economic Zone boundary off of Texas east to the boundary between the South Atlantic Fishery Management Council and the Gulf of Mexico Fishery Management Council.

Additionally, prior to and during the reinitiated consultation process, new information became available about the occurrence of Rice’s Whales in the Gulf of Mexico, such as evidence that Rice’s Whales may occur in the Expanded Rice’s Whale Area (an area generally defined as between the 100-m and 400-m isobaths in the Gulf of Mexico eastward from the Texas-Mexico boundary and west of the core Rice’s Whale Area identified in the 2020 BiOp reasonable and prudent alternative). The reinitiated consultation is ongoing.

Notice to Lessees and Operators

Given this new information regarding the Rice’s Whale’s range, the fact that the species is one of the most endangered whales in the world (51 or fewer mature individuals), and the ongoing reinitiated consultation, BOEM issued a Notice to Lessees (NTL) on August 21, 2023, that recommended that lessees and operators in the Gulf of Mexico implement certain voluntary avoidance and mitigation measures in the Expanded Rice’s Whale Area, until such time as a new or amended BiOp is issued by NOAA Fisheries and any measures identified by them can be implemented. These recommendations apply to the area comprising the northern Gulf of Mexico OCS between the 100-m and 400-m isobaths. This delineation is based on recent third-party scientific information indicating that Rice’s Whales may occur in portions of this area. Because the possibility of incidental take of Rice’s Whales in the Expanded Rice’s Whale Area cannot be dismissed at this time, these additional voluntary precautions are warranted.

The recommended voluntary measures within this area include:

• training visual observers to monitor the vessel for strike avoidance,
• documenting and retaining records for three years on details of transit,
• having all vessels engaged in oil and gas activities, regardless of size, maintain 10-knots or less and avoiding transit through the area after dusk and before dawn, as practicable and consistent with safe operations,
• maintaining a minimum vessel distance of 500-m from Rice’s Whales, and
• using an automatic identification system onboard all vessels 65 feet or greater that are engaged in oil and gas activity.

The recommendations do not apply when compliance would place the safety of the vessel or crew, or the safety of life at sea, in doubt. Implementing precautionary measures in the interim, while consultation is ongoing, furthers the goals of protecting marine species and ensuring safe and responsible energy development.

Analysis

H.R. 6008 would prohibit enforcement of BOEM’s August 2023 NTL until a new BiOp is complete according to certain specifications. BOEM appreciates the Subcommittee’s interest in the ESA and in the Bureau’s efforts to support domestic energy production that relies on the best available science. The Bureau does not support the goals of the bill to prevent the precautionary measures that were recommended to protect the Rice’s Whale in the Gulf of Mexico. We believe that the recommended guidance will help protect Rice’s Whale while ensuring we meet the energy needs of the Nation. BOEM defers to NOAA on any relevant Marine Mammal Protection Act and Endangered Species Act related matters.