Notice2021-11904
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Offshore of Massachusetts, Rhode Island, Connecticut, and New York
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Published
June 8, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS received a request from Vineyard Wind, LLC (Vineyard Wind) for the Renewal of their currently active incidental harassment authorization (IHA) to take marine mammals incidental to marine site characterization survey activities off the coast of Massachusetts in the areas of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0501 and OCS-A 0522) and along potential submarine cable routes to landfall locations in Massachusetts, Rhode Island, Connecticut, and New York. These activities consist of activities that are covered by the current authorization but will not be completed prior to its expiration. Pursuant to the Marine Mammal Protection Act (MMPA), prior to issuing the currently active IHA, NMFS requested comments on both the proposed IHA and the potential for renewing the initial authorization if certain requirements were satisfied. The Renewal requirements have been satisfied, and NMFS is now providing an additional 15-day comment period to allow for any additional comments on the proposed Renewal not previously provided during the initial 30-day comment period.
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<title>Federal Register, Volume 86 Issue 108 (Tuesday, June 8, 2021)</title>
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[Federal Register Volume 86, Number 108 (Tuesday, June 8, 2021)]
[Notices]
[Pages 30435-30442]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-11904]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB067]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Offshore of Massachusetts, Rhode Island, Connecticut, and New
York
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; request for comments on proposed renewal incidental
harassment authorization.
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SUMMARY: NMFS received a request from Vineyard Wind, LLC (Vineyard
Wind) for the Renewal of their currently active incidental harassment
authorization (IHA) to take marine mammals incidental to marine site
characterization survey activities off the coast of Massachusetts in
the areas of the Commercial Lease of Submerged Lands for Renewable
Energy Development on the Outer Continental Shelf (OCS-A 0501 and OCS-A
0522) and along potential submarine cable routes to landfall locations
in Massachusetts, Rhode Island, Connecticut, and New York. These
activities consist of activities that are covered by the current
authorization but will not be completed prior to its expiration.
Pursuant to the Marine Mammal Protection Act (MMPA), prior to issuing
the currently active IHA, NMFS requested comments on both the proposed
IHA and the potential for renewing the initial authorization if certain
requirements were satisfied. The Renewal requirements have been
satisfied, and NMFS is now providing an additional 15-day comment
period to allow for any additional comments on the proposed Renewal not
previously provided during the initial 30-day comment period.
DATES: Comments and information must be received no later than June 23,
2021.
ADDRESSES: Comments should be addressed to Jolie Harrison, Chief,
Permits and Conservation Division, Office of Protected Resources,
National Marine Fisheries Service. Written comments should be submitted
via email to <a href="/cdn-cgi/l/email-protection#440d10146a303d372b2a6a292b2b3621042a2b25256a232b32"><span class="__cf_email__" data-cfemail="9ad3cecab4eee3e9f5f4b4f7f5f5e8ffdaf4f5fbfbb4fdf5ec">[email protected]</span></a>.
Instructions: NMFS is not responsible for comments sent by any
other method, to any other address or individual, or received after the
end of the comment period. Comments, including all attachments, must
not exceed a 25-megabyte file size. All comments received are a part of
the public record and will generally be posted online at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a> without change. All personal identifying
information (e.g., name, address) voluntarily submitted by the
commenter may be publicly accessible. Do not submit confidential
business information or otherwise sensitive or protected information.
FOR FURTHER INFORMATION CONTACT: Reny Tyson Moore, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the original
application, Renewal request, and supporting documents (including NMFS
Federal Register notices of the original proposed and final
authorizations, and the previous IHA), as well as a list of the
references cited in this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D)
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon request, the incidental, but not
intentional, taking of small numbers of marine mammals by U.S. citizens
who engage in a specified activity (other than commercial fishing)
within a specified geographical region if certain findings are made and
either regulations are proposed or, if the taking is limited to
harassment, a notice of a proposed incidental take authorization is
provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to here as ``mitigation
measures''). Monitoring and reporting of such takings are also
required. The meaning of key terms such as ``take,'' ``harassment,''
and ``negligible impact'' can be found in section 3 of the MMPA (16
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e)
indicate that IHAs may be renewed for additional periods of time not to
exceed one year for each reauthorization. In the notice of proposed IHA
for the initial authorization, NMFS described the circumstances under
which we would consider issuing a Renewal for this activity and
requested public comment on a potential Renewal under those
circumstances. Specifically, on a case-by-case basis, NMFS may issue a
one-time, one-year Renewal IHA following notice to the public providing
an additional 15 days for public comments when (1) up to another year
of identical or nearly identical, or nearly identical, activities as
described in the Detailed Description of Specified Activities section
of the initial IHA issuance notice is planned or (2) the activities as
described in the Detailed Description of Specified Activities section
of the initial IHA issuance notice would not be completed by the time
the initial IHA expires and a Renewal would allow for completion of the
activities beyond that described in the DATES section of the notice of
issuance of the initial IHA, provided all of the following conditions
are met:
(1) A request for Renewal is received no later than 60 days prior
to the needed Renewal IHA effective date (recognizing that the Renewal
IHA expiration date
[[Page 30436]]
cannot extend beyond one year from expiration of the initial IHA).
(2) The request for Renewal must include the following:
<bullet> An explanation that the activities to be conducted under
the requested Renewal IHA are identical to the activities analyzed
under the initial IHA, are a subset of the activities, or include
changes so minor (e.g., reduction in pile size) that the changes do not
affect the previous analyses, mitigation and monitoring requirements,
or take estimates (with the exception of reducing the type or amount of
take).
<bullet> A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized.
(3) Upon review of the request for Renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
An additional public comment period of 15 days (for a total of 45
days), with direct notice by email, phone, or postal service to
commenters on the initial IHA, is provided to allow for any additional
comments on the proposed Renewal. A description of the Renewal process
may be found on our website at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>. Any
comments received on the potential Renewal, along with relevant
comments on the initial IHA, have been considered in the development of
this proposed IHA Renewal, and a summary of agency responses to
applicable comments is included in this notice. NMFS will consider any
additional public comments prior to making any final decision on the
issuance of the requested Renewal, and agency responses will be
summarized in the final notice of our decision.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action with respect to environmental
consequences on the human environment.
This action is consistent with categories of activities identified
in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A,
which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has
preliminarily determined that the issuance of the proposed IHA Renewal
qualifies to be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice
prior to concluding our NEPA process or making a final decision on the
IHA Renewal request.
History of Request
On May 06, 2020, NMFS issued an IHA to Vineyard Wind to take marine
mammals incidental to marine site characterization survey activities
off the coast of Massachusetts in the areas of the Commercial Lease of
Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf (OCS-A 0501 and OCS-A 0522) and along potential
submarine cable routes to landfall locations in Massachusetts, Rhode
Island, Connecticut, and New York (85 FR 26940), effective from June
01, 2020 through May 31, 2021. This IHA was re-issued on July 14, 2020
with the only change being a change in effective dates from June 21,
2020 through June 20, 2021 (85 FR 42357). On March 25, 2021, NMFS
received a request for a Renewal of the re-issued IHA. As described in
the request for Renewal IHA, the activities for which incidental take
is requested consist of activities that are covered by the initial
authorization but will not be completed prior to its expiration. As
required, the applicant also provided a preliminary monitoring report
(available at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>) which confirms that
the applicant has implemented the required mitigation and monitoring,
and which also shows that no impacts of a scale or nature not
previously analyzed or authorized have occurred as a result of the
activities conducted.
Description of the Specified Activities and Anticipated Impacts
Vineyard Wind plans to conduct high-resolution geophysical (HRG)
surveys in support of offshore wind development projects in the areas
of Commercial Lease of Submerged Lands for Renewable Energy Development
on the Outer Continental Shelf (#OCS-A 0501 and #OCS-A 0522) (Lease
Areas) and along potential submarine cable routes to landfall locations
in Massachusetts, Rhode Island, Connecticut, and New York. The purpose
of the marine site characterization surveys is to obtain a baseline
assessment of seabed/sub-surface soil conditions in the Lease Area and
cable route corridors to support the siting of potential future
offshore wind projects. Underwater sound resulting from Vineyard Wind's
planned site characterization surveys has the potential to result in
incidental take of 14 marine mammal species in the form of Level B
behavioral harassment. Vineyard Wind requested a Renewal of the initial
IHA that was re-issued by NMFS in July 2020 on the basis that the
activities as described in the Specified Activities section of the
initial IHA would not be completed by the time the IHA expires and a
Renewal would allow for completion of the activities beyond that
described in the Dates and Duration section of the initial IHA.
In their 2020 IHA application, Vineyard Wind estimated that it
would take a year to complete the HRG surveys. This schedule was based
on 24-hour operations and included potential down time due to inclement
weather. With up to eight survey vessels operating concurrently, a
maximum of 736 vessel days were anticipated. Each vessel would maintain
a speed of approximately 3.5 knots (kn; 6.5 kilometers [km]/hour) while
transiting survey lines and each vessel would cover approximately 100
km per day. However, during the 2020-2021 survey season, Vineyard Wind
completed only 184 vessel days of the 736 vessel days estimated to
complete the work and only surveyed approximately 25 percent of the
planned survey routes. Vineyard Wind predicts that a maximum of 552
vessel days, with up to eight survey vessels operating concurrently,
over 181 days will be required to survey the remaining routes,
estimated to be approximately 55,200 km. The Renewal IHA would
authorize harassment of marine mammals for this remaining survey
distance using survey methods identical to those described in the
initial IHA application; therefore, the anticipated effects on marine
mammals and the affected stocks also remain the same. All active
acoustic sources and mitigation and monitoring measures would remain as
described in the Federal Register notices of the proposed IHA (85 FR
7952, February 12, 2020) and issued IHA (85 FR 26940, May 06, 2020).
The amount of take requested for the Renewal IHA reflects the amount of
remaining work in consideration of marine mammal monitoring data from
the 2020 survey season resulting in
[[Page 30437]]
equal or less take than that authorized in the initial IHA.
Detailed Description of the Activity
A detailed description of the HRG activities for which take is
proposed here may be found in the Federal Register notices of the
proposed IHA (85 FR 7952, February 12, 2020), issued IHA (85 FR 26940,
May 06, 2020), and reissued IHA (85 FR 42357, July 14, 2020) for the
initial authorization. As described above, Vineyard Wind is not able to
complete the survey activities analyzed in the initial IHA by the date
the IHA is set to expire (June 20, 2021). As such, the surveys Vineyard
Wind proposes to conduct under this Renewal would be a continuation of
the surveys as described in the initial IHA. The location and nature of
the activities, including the types of equipment planned for use, are
identical to those described in the previous notices. Because part of
the work has already been completed, the duration of the surveys
conducted under the Renewal IHA will occur over less time than that
described for the initial IHA (181 days versus 365 days); however,
Vineyard Wind will continue to operate 24 hours per day to complete the
work. Vineyard Wind proposes to continue its activities on June 21,
2021, after the initial IHA expires on June 20, 2021. The proposed
Renewal would be effective for a period of one year from the date of
issuance.
Description of Marine Mammals
A description of the marine mammals in the area of the activities
for which authorization of take is proposed here, including information
on abundance, status, distribution, and hearing, may be found in the
notices of the proposed and final IHAs for the initial authorization
(85 FR 7952, February 12, 2020; 85 FR 26940, May 06, 2020). NMFS has
reviewed the monitoring data from the initial IHA, recent draft Stock
Assessment Reports, information on relevant Unusual Mortality Events,
and other scientific literature, and determined that neither this nor
any other new information affects which species or stocks have the
potential to be affected or the pertinent information in the
Description of the Marine Mammals in the Area of Specified Activities
contained in the supporting documents for the initial IHA.
The draft 2020 Stock Assessment Report (SAR, available online at:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports</a>) states that estimated abundance
has increased for the Western North Atlantic stock of common dolphins,
from 172,825 (CV = 0.21) to 172,974 (CV = 0.21), and decreased for the
following marine mammal stocks: The Gulf of Maine stock of humpback
whales (from 1,396 (CV = 0) to 1,393 (CV = 0.15)), the Western North
Atlantic stock of fin whales (from 7,418 (CV = 0.25) to 6,802 (CV =
0.24)), and the Canadian East coast stock of minke whales (from 24,202
(CV = 0.3) to 21,968 (CV=0.31)). Abundance estimates for the Western
North Atlantic stock of North Atlantic right whales have also been
updated, and state that right whale abundance has decreased from 428 to
368 (95% CI 356-378) individuals (Pace 2021).
Roberts et al. (2020) provided updated monthly densities of North
Atlantic right whales in the area of proposed activities since the time
of the initial IHA. These updated data for North Atlantic right whale
densities incorporate additional sighting data and include increased
spatial resolution. We reviewed the updated model documentation and
recalculated the North Atlantic right whale density estimates following
the same methods outlined in the proposed and final IHAs for the
initial authorization (85 FR 7952, February 12, 2020; 85 FR 26940, May
06, 2020). The new model results state that the mean annual North
Atlantic right whale densities have slightly increased in the activity
area.
NMFS has preliminarily determined that neither the updated
abundance and density information presented above nor any other new
information affects which species or stocks have the potential to be
affected or the pertinent information in the Description of the Marine
Mammals in the Area of Specified Activities contained in the supporting
documents for the initial IHA.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activity on
marine mammals and their habitat for the activities for which take is
proposed here may be found in the notices of the proposed and final
IHAs for the initial authorization (85 FR 7952, February 12, 2020; 85
FR 26940, May 06, 2020). NMFS has reviewed the monitoring data from the
initial IHA, recent draft Stock Assessment Reports, Technical Reports
(e.g., Pace 2021), information on relevant Unusual Mortality Events,
and other scientific literature and data (e.g., Roberts et al. 2020)
and determined that neither this nor any other new information affects
our initial analysis of impacts on marine mammals and their habitat.
Estimated Take
A detailed description of the methods and inputs used to estimate
take for the specified activity are found in the notices of the
proposed and final IHAs for the initial authorization (85 FR 7952,
February 12, 2020; 85 FR 26940, May 06, 2020). The acoustic source
types, as well as source levels applicable to this authorization remain
unchanged from the initial IHA. Similarly, the stocks taken, methods of
take, and type of take (i.e., Level B harassment only) remain unchanged
from the initial IHA.
In the initial authorization for the HRG survey activities, the
potential for take was estimated using the following parameters: (1)
Maximum number of survey days that could occur over a 12-month period;
(2) maximum distance each vessel could travel per 24-hour period in
each of the identified survey areas; (3) maximum ensonified area (zone
of influence (ZOI)); and (4) maximum marine mammal densities for any
given season that a survey could occur. The calculated radial distances
to the Level B harassment threshold (160 decibel (dB) root mean square
(rms)) from a survey vessel are included in Table 1.
Table 1--Modeled Radial Distances From HRG Survey Equipment to Isopleths Corresponding to Level A Harassment and
Level B Harassment Thresholds
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
HRG Survey Equipment Level B harassment
horizontal impact
distance (m)
----------------------------------------------------------------------------------------------------------------
Shallow subbottom profilers.................... EdgeTech Chirp 216.................... 4
Deep seismic profilers......................... Applied Acoustics AA251 Boomer........ 178
Deep seismic profilers......................... GeoMarine Geo Spark 2000 (400 tip).... 195
----------------------------------------------------------------------------------------------------------------
[[Page 30438]]
The equation for estimating take for all species remains the same
as the initial IHA:
Estimated Take = D x ZOI x # of days
Where:
D = species density (per km2) and ZOI = maximum daily ensonified
area
In the notices of the proposed and final IHAs for the initial
authorization (85 FR 7952, February 12, 2020; 85 FR 26940, May 06,
2020), a conservative ZOI was calculated by applying the maximum radial
distance for any category and type of HRG survey equipment considered
in its assessment to the mobile source ZOI calculation. This maximum
calculated distance to the Level B harassment threshold for the
GeoMarine Geo Spark 2000 of 195 m was also used to calculate the ZOI
for the requested extension. Vineyard Wind estimates that proposed
survey vessels will achieve a maximum daily track line distance of 100
km per day during proposed HRG surveys. This distance accounts for the
vessel traveling at roughly 3.5 kn (6.5 km/hour) and accounts for non-
active survey periods. Based on the maximum estimated distance to the
Level B harassment threshold of 195 m (Table 1) and the maximum
estimated daily track line distance of 100 km, Vineyard Wind estimated
that an area of 39.12 km\2\ would be ensonified to the Level B
harassment threshold per day during Vineyard Wind's proposed HRG
surveys. This is a conservative estimate as it assumes the HRG sources
that result in the greatest isopleth distances to the Level B
harassment threshold would be operated at all times during the all
vessel days.
This methodology of calculating take in the initial IHA applies to
the proposed Renewal IHA for all species, with the only difference
being the fewer amount of vessel days (i.e., 552 versus 736). The
result is that the amount of take is reduced proportionally to the
reduction in the number of days of work remaining. Vineyard Wind has
requested a deviation from the proportionally reduced calculated take
for Risso's dolphins as described below. Other than in the additional
instances described below, NMFS agrees with Vineyard Wind's request for
take and we propose to authorize the same amount of take as described
in their request.
In their request for a Renewal IHA application, Vineyard Wind
requested that the number of Level B harassment takes (per the equation
above) for Risso's dolphins be equal to their average group size
estimate (6 individuals), given a proportional reduction in take based
on the reduction in the number of days of work remaining would result
in a take estimate that is smaller than the average group size
estimate. As described in Vineyard Wind's preliminary monitoring
report, they did not observe any Risso's dolphins during the survey
work thus far completed. Therefore, we have carried over the same
amount of take as proposed in the initial IHA, which is based on an
average group size of 6 Risso's dolphins (Table 2).
In the notices of the proposed and final IHAs for the initial
authorization (85 FR 7952, February 12, 2020; 85 FR 26940, May 06,
2020) takes by Level B harassment authorized for North Atlantic right
whales were limited to 10 individuals, which was reduced from the
calculated take of 31 whales. There were several reasons justifying
this reduction. Vineyard Wind established and monitored a shutdown zone
at least 2.5 times (500-meters (m)) greater than the predicted Level B
harassment threshold distance (195 m). Take had also been
conservatively calculated based on the largest source, which will not
be operating at all times, and take is therefore likely over-estimated
to some degree. Furthermore, the potential for incidental take during
daylight hours is very low given that two Protected Species Observers
(PSOs) are required for monitoring. Additionally, sightings of right
whales had been uncommon during previous HRG surveys conducted in areas
near the proposed surveys. For example, no North Atlantic right whales
were sighted during Bay State Wind surveys in adjacent and overlapping
survey areas over 376 vessel days between May 11, 2018 and March 14,
2019. Vineyard Wind also had no North Atlantic right whales sighted in
their marine mammal monitoring report that included Lease Areas OCS-A
0501 and OCS-A 0522 from May 31, 2019 through January 7, 2020.
Therefore, the aforementioned factors led NMFS to conclude that the
unadjusted modeled exposure estimate was likely a significant
overestimate of actual potential exposure. Accordingly, in the initial
IHA NMFS made a reasonable adjustment to conservatively account for
these expected mitigating effects on actual taking of right whales.
During the 2020-2021 surveys, Vineyard Wind reported four sightings
of seven North Atlantic right whales in their preliminary monitoring
report. While all of these individuals were observed on a single day
(December 20, 2020) and outside both the estimated 195-m Level B
harassment Zone and the 500 m Exclusion Zone (EZ) for North Atlantic
right whales (closest approaches were >900 m), they represent an
increased amount of sightings observed during HRG surveys, though the
information suggests that there were no takes. Updated model outputs
from Roberts et al. (2020) also suggest that there has been a slight
increase in North Atlantic right whale density in the survey area.
Despite the increase in sightings and densities of North Atlantic right
whales in the survey area, we believe that an updated unadjusted
modeled exposure estimate based on these slightly increased densities
would still represent a significant overestimate of the actual
potential exposure, and therefore propose to carry over the same amount
of take (10 individuals) as proposed in the initial IHA, which accounts
for the expected mitigating effects on the actual taking of right
whales.
As documented in Vineyard Wind's preliminary monitoring report,
there was a number of sightings of delphinids both within the estimated
195 m Level B Harassment Zone and the 100 m EZ that were characterized
by the PSOs as `voluntary approaches.' A ``voluntary approach'' is
defined as a purposeful approach toward the vessel by the delphinid(s)
with a speed and vector that indicates that the delphinid(s) is
approaching the vessels and remains near the vessel or towed equipment
(BOEM 2014). Vineyard Wind PSOs reported 270 sightings of approximately
3,332 individual common dolphins within the estimated 195 m Level B
harassment zone for the sparker. During these marine mammal
observations, no behavior was observed that would be considered
consistent with a behavioral response to harassment (i.e., rapid
swimming away from the sound source or vessel; repeated fin slaps or
breaches; notable changes in behavior as a result of vessel approach),
and no animals demonstrated signs of harm. Therefore, Vineyard Wind
concluded that these animals did not experience Level B Harassment, as
defined under the MMPA. Given that Vineyard Wind observed more common
dolphins than expected, we propose to carry over the same amount of
take (2,036 individuals) as proposed in the initial IHA, as opposed to
decreasing it commensurate to the reduced amount of activity remaining.
Thus, take numbers proposed in this IHA Renewal (Table 2) represent
prorated estimates for all species except North Atlantic right whales,
Risso's dolphins, and common dolphins whose proposed take estimates
remain the same as authorized in the initial IHA.
On August 20, 2020 Vineyard Wind PSOs observed two white-beaked
[[Page 30439]]
dolphins within the 195 m Level B harassment zone for the sparker
during the first year of Vineyard Wind's survey activities. White-
beaked dolphins were considered unlikely to be encountered in the
survey area and, therefore, take was not considered reasonably likely
to occur and was not authorized in the initial IHA. This species has
historically been found in waters outside of the survey area, from
southern New England to southern Greenland and Davis Straits
(Leatherwood et al. 1976; CETAP 1982, Hayes et al. 2019), across the
Atlantic to the Barents Sea and south to at least Portugal (Reeves et
al. 1999). In waters off the northeastern U.S. coast, white-beaked
dolphin sightings are typically concentrated in the western Gulf of
Maine and around Cape Cod (CETAP 1982, Hayes et al. 2019). The dolphins
observed during the 2020-2021 surveys were first sighted as
unidentified dolphins due to the decreased visibility under sea state 3
conditions, creating challenges in identification. Given the dolphins
were of genera Delphinus, Lagenorhynchus, or Tursiops, and in
accordance with IHA condition 4(f)(vii), the PSO used their best
professional judgment in determining that the animals were exempted
from the shutdown requirement. After less than a minute of bow riding
the dolphins began swimming away and at the end of the sighting the PSO
was able to make a positive ID. The PSO determined the animal was
leaving the zone and therefore no mitigation was required. The PSO
determined that there was no behavioral change or signs of distress and
thus Vineyard Wind did not report the sighting as a potentially
unauthorized Level B harassment take. Despite this single observation
of white beaked dolphins, encounters with the species in the survey
area remain unlikely. For example, no sightings of white beaked
dolphins have been reported in monitoring reports from other IHAs
issued in the same region in recent years. Therefore, NMFS has
determined that the initial determination that take of the species is
not reasonably likely to occur and, therefore, that take authorization
for the species is not warranted. We have clarified with Vineyard Wind
the need to communicate any sightings of rare species to NMFS as soon
as possible.
Table 2--Initial IHA Take Authorized and Renewal IHA Proposed Take
----------------------------------------------------------------------------------------------------------------
Level B harassment
--------------------------------
Species Take Percent
authorized Proposed take population \1\
initial IHA renewal IHA
----------------------------------------------------------------------------------------------------------------
Fin whale....................................................... 67 51 1.1
Humpback whale.................................................. 46 34 2.1
Minke whale..................................................... 41 31 1.5
North Atlantic right whale...................................... 10 10 2.7
Sei whale....................................................... 4 3 0.4
Atlantic white sided dolphin.................................... 1,011 758 2.0
Bottlenose dolphin (WNA Offshore)............................... 815 611 1.0
Long-finned pilot whales........................................ 142 107 0.6
Risso's dolphin................................................. 6 6 0.08
Common dolphin.................................................. 2,036 2,036 2.3
Sperm whale..................................................... 4 3 0.06
Harbor porpoise................................................. 1,045 784 1.7
Gray seal....................................................... 4,044 3,033 11.17
Harbor seal..................................................... 4,044 3,033 4.0
----------------------------------------------------------------------------------------------------------------
\1\ Calculations of percentage of stock taken are based on the best available abundance estimate as shown in
Table 2 in the notice of the final IHA for the initial authorization (85 FR 26940, May 06, 2020). In most
cases the best available abundance estimate is provided by Roberts et al. (2016, 2017, 2018), when available,
to maintain consistency with density estimates derived from Roberts et al. (2016, 2017, 2018). For North
Atlantic right whales the best available abundance estimate is derived from the 2021 NOAA Technical Memorandum
NMFS-NE-269 Revisions and Further Evaluations of the Right Whale Abundance Model: Improvements for Hypothesis
Testing (Pace, 2021). For bottlenose dolphins and seals, Roberts et al. (2016, 2017, 2018) provides only a
single abundance estimate and does not provide abundance estimates at the stock or species level
(respectively), so abundance estimates used to estimate percentage of stock taken for bottlenose dolphins,
gray and harbor seals are derived from NMFS SARs (Hayes et al., 2019).
Description of Proposed Mitigation, Monitoring and Reporting Measures
The proposed mitigation, monitoring, and reporting measures
included as requirements in this authorization are identical to those
included in the FR Notice announcing the issuance of the initial IHA
(85 FR 26940, May 06, 2020), and the discussion of the least
practicable adverse impact included in that document and the notice of
the proposed IHA remains accurate (85 FR 7952, February 12, 2020; 85 FR
26940, May 06, 2020). All mitigation, monitoring and reporting measures
in the initial IHA are carried over to this proposed Renewal IHA and
summarized here:
<bullet> EZ: Marine mammal EZs will be established around the HRG
survey equipment and monitored by PSO during HRG surveys as follows: A
500-m EZ is required for North Atlantic right whales and a 100-m EZ is
required for all other marine mammals (with the exception of certain
genera of small delphinids (i.e., Delphinus, Lagenorhynchus, and
Tursiops) under certain circumstances, such as individuals voluntary
approaching the vessel). If a marine mammal is detected approaching or
entering the EZs during the planned survey, the vessel operator would
adhere to the shutdown procedures described below. In addition to the
EZs described above, PSOs would visually monitor a 200-m Buffer Zone;
however, this Buffer Zone is not applicable when the EZ is greater than
100 meters. PSOs would also be required to observe a 500-m Monitoring
Zone and record the presence of all marine mammals within this zone and
within the Level B harassment zone. The zones described above would be
based upon the radial distance from the active equipment (rather than
being based on distance from the vessel itself).
<bullet> PSO: A minimum of two NMFS-approved PSOs must be on duty
and conducting visual observations at all times on all active survey
vessels when HRG equipment is operating, including both daytime and
nighttime operations.
[[Page 30440]]
Visual monitoring would begin no less than 30 minutes prior to
initiation of HRG survey equipment and would continue until 30 minutes
after use of the acoustic source ceases or until 30 minutes past
sunset. However, Vineyard Wind has committed to 24-hr use of PSOs. PSOs
would establish and monitor the applicable EZs, Buffer Zone and
Monitoring Zone as described above.
<bullet> Pre-Operation Clearance Protocols: Prior to initiating HRG
survey activities, Vineyard Wind would implement a 30-minute pre-
clearance period. Ramp-up of the survey equipment would not begin until
the relevant zones (500-m EZ for North Atlantic right whales and 200-m
Buffer Zone for all other species) have been cleared by the PSOs. If
any marine mammals are detected within the relevant EZs or Buffer Zone
during the pre-clearance period, initiation of HRG survey equipment
would not begin until the animal(s) has been observed exiting the
respective EZ or Buffer Zone, or, until an additional time period has
elapsed with no further sighting (i.e., minimum 15 minutes for small
odontocetes and seals, and 30 minutes for all other species). The pre-
clearance requirement would include small delphinids that approach the
vessel (e.g., bow ride). PSOs would also continue to monitor the zone
for 30 minutes after survey equipment is shut down or survey activity
has concluded.
<bullet> Ramp-up: A ramp-up procedure would be used for geophysical
survey equipment capable of adjusting energy levels at the start or re-
start of survey activities. Ramp-up of the survey equipment would not
begin until the relevant EZs and Buffer Zone has been cleared by the
PSOs, as described above. HRG equipment would be initiated at their
lowest power output and would be incrementally increased to full power.
If any marine mammals are detected within the EZs or Buffer Zone prior
to or during ramp-up, the HRG equipment would be shut down (as
described below).
<bullet> Shutdown of HRG Equipment: If an HRG source is active and
a marine mammal is observed within or entering a relevant EZ (as
described above) an immediate shutdown of the HRG survey equipment
would be required. Note this shutdown requirement would be waived for
certain genera of small delphinids as described above. Subsequent
restart of the HRG equipment would only occur after the marine mammal
has either been observed exiting the relevant EZ, or, until an
additional time period has elapsed with no further sighting of the
animal within the relevant EZ (i.e., 15 minutes for small odontocetes
and seals, and 30 minutes for all other species).
<bullet> Vessel strike avoidance measures: Separation distances for
large whales (500 m North Atlantic Right Whales, 100 m other large
whales; 50 m other cetaceans and pinnipeds), restricted vessel speeds,
and operational maneuvers.
Seasonal Operating Requirements:
<bullet> Vineyard Wind will conduct HRG survey activities in the
Cape Cod Bay Mid-Atlantic U.S. Seasonal Management Area (SMA) and Off
Race Point SMA only during the months of August and September to ensure
sufficient buffer between the SMA restrictions (January to May 15) and
known seasonal occurrence of the North Atlantic right whale north and
northeast of Cape Cod (fall, winter, and spring). Vineyard Wind will
also limit to three the number survey vessels that will operate
concurrently from March through June within the lease areas (OCS-A 0501
and 0487) and offshore export cable corridor (OECC) areas north of the
lease areas up to, but not including, coastal and bay waters. Another
seasonal restriction area south of Nantucket will be in effect from
December to February in the area delineated by the DMA that was
effective from January 31, 2020 through February 15, 2020. In addition,
Vineyard Wind would operate either a single vessel, two vessels
concurrently or, for short periods, no more than three survey vessels
concurrently in the areas described above during the December-February
and March-June timeframes when right whale densities are greatest. The
seasonal restrictions described above will help to reduce both the
number and intensity of North Atlantic right whale takes.
<bullet> Reporting: Vineyard Wind will submit a final technical
report within 90 days following completion of the surveys. In the event
that Vineyard Wind personnel discover an injured or dead marine mammal,
Vineyard Wind shall report the incident to the Office of Protected
Resources (OPR), NMFS and to the New England/Mid-Atlantic Regional
Stranding Coordinator as soon as feasible. In the event of a ship
strike of a marine mammal by any vessel involved in the activities
covered by the authorization, Vineyard Wind shall report the incident
to OPR, NMFS and to the New England/Mid-Atlantic Regional Stranding
Coordinator as soon as feasible.
Comments and Responses
As noted previously, NMFS published a notice of a proposed IHA (85
FR 7952, February 12, 2020) and solicited public comments on both our
proposal to issue the initial IHA for marine site characterization
surveys and on the potential for a Renewal IHA, should certain
requirements be met.
All public comments were addressed in the notice announcing the
issuance of the initial IHA (85 FR 26940, May 06, 2020). Below, we
describe how we have addressed, with updated information where
appropriate, any comments received that specifically pertain to the
Renewal of the 2020 IHA.
Comment: The Marine Mammal Commission (Commission) recommended that
NMFS refrain from issuing Renewals for any authorization and instead
use its abbreviated Federal Register notice process. They argued that
the process is similarly expeditious and fulfills NMFS's intent to
maximize efficiencies, and that NMFS (1) stipulate that a Renewal is a
one-time opportunity (a) in all Federal Register notices requesting
comments on the possibility of a Renewal, (b) on its web page detailing
the Renewal process, and (c) in all draft and final authorizations that
include a term and condition for a Renewal and, (2) if NMFS refuses to
stipulate a Renewal being a one-time opportunity, explain why it will
not do so in its Federal Register notices, on its web page, and in all
draft and final authorizations.
Response: NMFS expressed how it does not agree with the Commission
that we instead use the abbreviated notice process and did not adopt
the Commission's recommendation. As explained in the response to the
following comment, NMFS believes Renewals can be issued in certain
limited circumstances.
The Commission was also concerned that NMFS had not explicitly
identified that a 1-year Renewal IHA was a one-time opportunity in our
Federal Register notices nor on our website. NMFS has since identified
in Federal Register notices and on our website that a Renewal IHA is
one time opportunity.
Comment: A group of environmental non-governmental organizations
(ENGOs) objected to NMFS' process to consider extending any 1-year IHA
with a truncated 15-day comment period as contrary to the MMPA.
Response: NMFS' IHA Renewal process meets all statutory
requirements. All IHAs issued, whether an initial IHA or a Renewal IHA,
are valid for a period of not more than 1 year. And the public has at
least 30 days to comment on all proposed IHAs, with a cumulative total
of 45 days for IHA Renewals. As noted above, the Request for Public
Comments section in the initial IHA made clear that the agency was
seeking comment on both the initial
[[Page 30441]]
proposed IHA and the potential issuance of a Renewal for this project.
Because any Renewal (as explained in the Request for Public Comments
section in the initial IHA) is limited to another year of identical or
nearly identical activities in the same location (as described in the
Description of Proposed Activity section in the initial IHA) or the
same activities that were not completed within the one-year period of
the initial IHA, reviewers have the information needed to effectively
comment on both the immediate proposed IHA and a possible 1-year
Renewal, should the IHA holder choose to request one.
While there are additional documents submitted with a Renewal
request, for a qualifying Renewal these are limited to documentation
that NMFS will make available and use to verify that the activities are
identical to those in the initial IHA, are nearly identical such that
the changes would have either no effect on impacts to marine mammals or
decrease those impacts, or are a subset of activities already analyzed
and authorized but not completed under the initial IHA. NMFS will also
confirm, among other things, that the activities will occur in the same
location; involve the same species and stocks; provide for continuation
of the same mitigation, monitoring, and reporting requirements; and
that no new information has been received that would alter the prior
analysis. The renewal request also contains a preliminary monitoring
report, but that is to verify that effects from the activities do not
indicate impacts of a scale or nature not previously analyzed. The
additional 15-day public comment period provides the public an
opportunity to review these few documents, provide any additional
pertinent information and comment on whether they think the criteria
for a renewal have been met. NMFS also will provide direct notice of
the proposed Renewal to those who commented on the initial IHA, to
provide an opportunity to submit any additional comments. Between the
initial 30-day comment period on these same activities and the
additional 15 days, the total comment period for a renewal is 45 days.
In addition to the IHA Renewal process being consistent with all
requirements under section 101(a)(5)(D), it is also consistent with
Congress's intent for issuance of IHAs to the extent reflected in
statements in the legislative history of the MMPA. Through the
provision for Renewals in the regulations, description of the process
and express invitation to comment on specific potential Renewals in the
Request for Public Comments section of each proposed IHA, the
description of the process on NMFS' website, further elaboration on the
process through responses to comments such as these, posting of
substantive documents on the agency's website, and provision of 30 or
45 days for public review and comment on all proposed initial IHAs and
Renewals respectively, NMFS has ensured that the public ``is invited
and encouraged to participate fully in the agency decision-making
process.''
For more information, NMFS has published a description of the
Renewal process on our website (available at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>).
Preliminary Determinations
The survey activities proposed by Vineyard Wind are identical to
(and a subset of) those analyzed in the initial IHA, as are the method
of taking and the effects of the action. The mitigation measures and
monitoring and reporting requirements as described above are also
identical to the initial IHA. The planned number of days of activity
will be reduced given the completion of a small portion of the
originally planned work. Therefore, the amount of take proposed is
equal to or less than that authorized in the initial IHA. The potential
effect of Vineyard Winds' activities remains limited to Level B
harassment in the form of behavioral disturbance. In analyzing the
effects of the activities in the initial IHA, NMFS determined that
Vineyard Wind's activities would have a negligible impact on the
affected species or stocks and that the authorized take numbers of each
species or stock were small relative to the relevant stocks (e.g., less
than one-third of the abundance of all stocks).
NMFS has preliminarily concluded that there is no new information
suggesting that our analysis or findings should change from those
reached for the initial IHA. This includes consideration of the
estimated abundances of four stocks (North Atlantic right whales,
humpback whales, fin whales, and minke whales) decreasing and the
estimated abundances of one stock (common dolphins) increasing (Hayes
et al. 2020, Pace 2021). This also includes consideration of the
increased density estimates for North Atlantic right whales based on
updated model outputs from Roberts et al. (2020) as described above in
the Estimated Take section. Based on the information and analysis
contained here and in the referenced documents, NMFS has determined the
following: (1) The required mitigation measures will effect the least
practicable impact on marine mammal species or stocks and their
habitat; (2) the authorized takes will have a negligible impact on the
affected marine mammal species or stocks; (3) the authorized takes
represent small numbers of marine mammals relative to the affected
stock abundances; (4) Vineyard Wind's activities will not have an
unmitigable adverse impact on taking for subsistence purposes as no
relevant subsistence uses of marine mammals are implicated by this
action, and; (5) appropriate monitoring and reporting requirements are
included.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) requires that each Federal agency insure that any action
it authorizes, funds, or carries out is not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of designated critical
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS
consults internally, in this case with the NMFS Greater Atlantic
Regional Fisheries Office (GARFO), whenever we propose to authorize
take for endangered or threatened species.
The NMFS Office of Protected Resources is authorizing the
incidental take of four species of marine mammals which are listed
under the ESA: The North Atlantic right, fin, sei and sperm whale. We
requested initiation of consultation under Section 7 of the ESA with
NMFS GARFO on February 12, 2020, for the issuance of this IHA. BOEM
consulted with NMFS GARFO under section 7 of the ESA on commercial wind
lease issuance and site assessment activities on the Atlantic Outer
Continental Shelf in Massachusetts, Rhode Island, New York and New
Jersey Wind Energy Areas. The NMFS GARFO issued a Biological Opinion
concluding that these activities may adversely affect but are not
likely to jeopardize the continued existence of the North Atlantic
right, fin, sei and sperm whale. Upon request from the NMFS Office of
Protected Resources, NMFS GARFO issued an amended incidental take
statement associated with this Biological Opinion to include the take
of the ESA-listed marine mammal species authorized through this IHA in
April 2020. On May 12, 2021 NMFS GARO determined that their initial
consultation remains valid and that the proposed MMPA Renewal IHA
provides no new information about
[[Page 30442]]
the effects of the action, nor does it change the extent of effects of
the action, or any other basis to require reinitiation of the opinion.
Proposed Renewal IHA and Request for Public Comment
As a result of these preliminary determinations, NMFS proposes to
issue a Renewal IHA to Vineyard Wind for conducting marine site
characterization survey activities off the coast of Massachusetts in
the areas of the Commercial Lease of Submerged Lands for Renewable
Energy Development on the Outer Continental Shelf (OCS-A 0501 and OCS-A
0522) and along potential submarine cable routes to landfall locations
in Massachusetts, Rhode Island, Connecticut, and New York for a period
of one year from the date of issuance, provided the previously
described mitigation, monitoring, and reporting requirements are
incorporated. A draft of the proposed and final initial IHA can be
found at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. We request comment
on our analyses, the proposed Renewal IHA, and any other aspect of this
Notice. Please include with your comments any supporting data or
literature citations to help inform our final decision on the request
for MMPA authorization.
Dated: June 2, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2021-11904 Filed 6-7-21; 8:45 am]
BILLING CODE 3510-22-P
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