Senators Urge Withdrawal of Rice's Whale Rule in GOM

U.S. Senator Bill Cassidy and 15 other colleagues said the rule was a 'clear attempt' to shut down oil and gas operations in the U.S. Gulf of Mexico.

By Rocky Teodoro | Rigzone Staff

U.S. Senator Bill Cassidy and 15 other colleagues have urged the National Oceanic and Atmospheric Administration (NOAA) and the National Marine Fisheries Service (NMFS) to withdraw a proposed rule designating more than 28,270 square miles of the U.S. Gulf of Mexico (GOM) as a “critical habitat” for the newly discovered Rice’s whale, which they said was a “clear attempt” to shut down oil and gas operations in the area over a single sighting of a whale in 2017.

The group of U.S. senators, which includes Senators Ted Cruz and Joe Manchin, wrote in a letter to the agencies that the proposed rule “lacks sufficient evidence, relies on an incomplete study, and vastly underestimates the economic and national security impacts of such a designation”, according to a statement Friday.

In July, the NMFS published a proposed rule in the Federal Register designating critical habitat for the Rice’s Whale, designating waters from the 100-meter isobath to the 400-meter isobath in the GOM as critical habitat for the whale and restricting the transit of oil and gas vessels in the designated area.

According to the statement, the Biden administration entered into "a closed-door de facto settlement agreement" with the Sierra Club, Center for Biological Diversity, Friends of the Earth, and Turtle Island Restoration Network, where the administration voluntarily removed six million acres in the GOM from offshore oil and gas leasing as well as imposed a 10-knot speed limit and restricted nighttime transit for certain oil and gas vessels. These restrictions “significantly” disrupt companies’ ability to explore for and produce oil and gas under the basis of protecting the Rice’s whale, the statement said. However, “previous analysis performed by NOAA has stated that additional mitigations for the Rice’s whale were not warranted and federal statutes and regulations require much more evidence and opportunity for public comment before such a sweeping decision could be implemented”, the statement continued.

“The proposed rule as written fails to comply with important elements of the Endangered Species Act (ESA) and would jeopardize domestic energy production, national security, and other important interests”, the senators wrote in the letter.

“For one, the proposed rule claims, without adequate evidence, ‘that at the time of listing Rice’s whales occupied the Gulf of Mexico.’ NFMS claims this based on only a single sighting of a Rice’s whale off the central Texas coast in 2017 and de minimis possible acoustic detections in the western and northern Gulf of Mexico. The reality is decades of surveys of the Gulf have made very few observations of Rice’s whales and only in limited geographic areas. This is both legally and scientifically insufficient to demonstrate the Rice’s whales occupied the habitat. The proposed designation also fails to meet the ESA’s requirement that a critical habitat be ‘specific areas within’ the broader geographical area occupied by the species. Instead, the rule would designate more than 28,270 square miles of the Gulf of Mexico as a critical habitat, an area larger than West Virginia”, the senators continued.

“The proposed rule also cites unreliable and incomplete sources for its conclusions. NMFS inappropriately cites an unpublished, still-in-peer-review study for the modeling that serves as the basis for including vast suitable areas of habitat of the Rice’s whale outside of the smaller core distribution area”, the senators stated. “Recently, NMFS was obligated to engage in a corrective rulemaking on a separate issue due to miscalculations in the supporting analysis—something that would have been made clear to NMFS earlier had it allowed public comment on the supporting analysis. That same risk is present with this proposed rule. NFMS cannot be sure of the accuracy and integrity of the data it used to define this vast critical habitat area before the study and its peer review are complete. If NMFS chooses to rely on this study, it should wait until the study is complete and has been peer-reviewed then allow public comment on a proposed rule that is based upon completed work, so the public can verify its use and accuracy”.

“NMFS’s economic analysis in the proposed rule similarly falls short. It vastly underestimates costs for consultations under the ESA and fails to account for potentially significant project delays, modifications, and other economic costs resulting from the critical habitat designation”, the senators added. “Further, the economic impact analysis completely dismisses the potential for modifications to federally permitted activities and their associated economic costs. The proposed critical habitat area stretches across many important oil and gas leases, shipping channels for major U.S. ports, and commercial and recreational fishing grounds—all activities that are likely to be dramatically curtailed if this rule is finalized. Yet the proposed rule completely disregards the potential impact on these industries. NMFS estimates designating the Gulf of Mexico’s entire 28,270.65 square miles as a critical habitat will have 'incremental administrative costs' of $240,000 over ten years—an absurdly low assessment”.

“For these reasons, we request NMFS withdraw its proposed rule. If the service insists on moving forward with a critical habitat designation, then that proposed rule must comply with the ESA, be based on the best available science, designate a reduced critical habitat area within the total occupied area, and contain proper analysis of the economic costs and national security implications”, the senators concluded.

The letter was also signed by U.S. Senators Roger Wicker, John Barrasso, Shelley Moore Capito, Jim Risch, Mike Crapo, John Kennedy, Tommy Tuberville, Mike Lee, Cynthia Lummis, Pete Ricketts, Cindy Hyde-Smith, Katie Boyd Britt, and Rick Scott.

A recent statement from the American Petroleum Institute (API) agreed with the senators’ concerns, saying that the proposed restrictions on oil and natural gas vessels operating in the GOM would lead to a nearly one-quarter decline in U.S. energy production, or more than 500,000 barrels of oil equivalent per day, citing a study conducted by advisory services firm Energy & Industrial Advisory Partners (EIAP).

The study was submitted to the NMFS alongside joint comments from API, EnerGeo Alliance, Independent Petroleum Association of America, and the National Ocean Industries Association in response to the agency’s proposal to designate Rice’s whale critical habitat in the GOM.

“If implemented, these restrictions would greatly reduce the ability of oil and gas vessels to transit through this area, which would include all vessels transiting to deepwater, drilling and production platforms”, the EIAP study said.

“These transit restrictions would essentially reduce the capacity of the existing offshore oil and gas supply fleet, as the journey between shore and platforms would be extended. This reduction in transport capacity would reduce the ability to support exploration, drilling, development, and production operations, reducing the industry’s ability to explore for, develop, and produce oil and natural gas”, the study added.