The Regulation of Seismic Exploration in the United States

The National Marine Fisheries Service (“NMFS”) Should Defer Final Take Rules for Oil and Gas Marine Mammal Take Authorizations in the Gulf of Mexico  Until After Courts Decide Related Issues in Pending Litigation over NMFS’  Take Authorizations for Oil and Gas Exploration off the Atlantic Coast and Alaska

NMFS currently intends to publish final Marine Mammal Protection Act (“MMPA”) Rules for oil and gas geophysical surveys in the Gulf of Mexico by November 5, 2019  (“GOM Take Rules”).  These GOM Take Rules were originally requested by the Department of Interior’s Bureau of Ocean Energy management (“BOEM”). There is no legal deadline requiring this or any other publication date.[1] No statute or settlement agreement requires NMFS to promulgate final GOM Take rules by this date. Oil and gas operations have been and will continue to be heavily regulated under OCSLA, NEPA and the ESA, which also protect marine mammals.

The U.S. National Marine Fisheries Service has issued an incidental harassment authorization to the U.S.  Office of Naval Research to incidentally harass, by Level B harassment only, marine mammals during Arctic Research Activities in the Beaufort and Chukchi Seas.  ONR’s activities are considered military readiness activities pursuant to the MMPA, as amended by the National Defense Authorization Act for Fiscal Year 2004 . This Authorization is effective from September 10, 2019 through September 9, 2020. It is issued under the U.S. Marine Mammal Protection Act.

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