Notice2021-13530
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off of Delaware and New Jersey
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 25, 2021
Effective
June 11, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an IHA to Garden State Offshore Energy, LLC (Garden State) to incidentally harass, by Level B harassment, marine mammals incidental to marine site characterization surveys offshore of Delaware and New Jersey in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0482) and along potential export cable routes to landfall locations in Delaware and New Jersey.
Full Text
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<title>Federal Register, Volume 86 Issue 120 (Friday, June 25, 2021)</title>
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[Federal Register Volume 86, Number 120 (Friday, June 25, 2021)]
[Notices]
[Pages 33664-33682]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-13530]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB162]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Off of Delaware and New Jersey
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an IHA to Garden State Offshore Energy, LLC
(Garden State) to incidentally harass, by Level B harassment, marine
mammals incidental to marine site characterization surveys offshore of
Delaware and New Jersey in the area of the Commercial Lease of
Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf (OCS-A 0482) and along potential export cable routes
to landfall locations in Delaware and New Jersey.
DATES: This authorization is effective from June 11, 2021 through June
10, 2022.
FOR FURTHER INFORMATION CONTACT: Carter Esch, Office of Protected
Resources, NMFS, (301) 427-8421. Electronic copies of the application
and supporting documents, 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 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 issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be 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 the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth.
The definitions of all applicable MMPA statutory terms cited above
are included in the relevant sections below.
[[Page 33665]]
Summary of Request
On November 2, 2020, NMFS received a request from Garden State for
an IHA to take marine mammals incidental to marine site
characterization surveys offshore of Delaware and New Jersey in the
area of the Commercial Lease of Submerged Lands for Renewable Energy
Development on the Outer Continental Shelf (OCS-A 0482) and along
potential export cable routes (ECRs) to a landfall location in Delaware
and New Jersey. Following NMFS' review of the draft application, a
revised version was submitted on March 30, 2021. The application was
deemed adequate and complete on April 5, 2021. Garden State's request
is for take of a small number of 16 species of marine mammals (with 17
managed stocks) by Level B harassment only. Neither Garden State nor
NMFS expects serious injury or mortality to result from this activity
and, therefore, an IHA is appropriate.
Description of Specified Activity
Overview
As part of its overall marine site characterization survey
operations, Garden State plans to conduct high-resolution geophysical
(HRG) surveys in the Lease Area and along potential ECRs to landfall
locations in Delaware and New Jersey.
The purpose of the marine site characterization surveys is to
obtain a baseline assessment of seabed (geophysical, geotechnical, and
geohazard), ecological, and archeological conditions within the
footprint of offshore wind facility development. Surveys are also
conducted to support engineering design and to map unexploded ordnance.
Underwater sound resulting from Garden State's site characterization
survey activities, specifically HRG surveys, has the potential to
result in incidental take of marine mammals in the form of Level B
harassment. Table 1 identifies representative survey equipment with the
expected potential to result in exposure of marine mammals and
potentially result in take. The survey activities planned by Garden
State are described in detail in the notice of the proposed IHA (86 FB
22160; April 27, 2021).
Dates and Duration
The estimated duration of HRG survey activity is expected to be up
to 350 survey days over the course of a single year (``survey day''
defined as a 24-hour (hr) activity period), with 200 vessel survey days
expected in the Lease Area and 150 vessel survey days expected in the
ECR area. This schedule is based on 24-hour operations and includes
potential down time due to inclement weather. Although some shallow-
water locations may be surveyed by a smaller vessel during daylight
hours only, the estimated number of survey days assumes uniform 24-hr
operations.
Specific Geographic Region
The survey activities will occur within the Project Area which
includes the Lease Area and potential ECRs to landfall locations, as
shown in Figure 1 of the notice of the proposed IHA. The Lease Area is
approximately 284 square kilometers (km\2\) and is within the Delaware
Wind Energy Area (WEA) of the Bureau of Ocean Energy Management (BOEM)
Mid-Atlantic planning area. Water depths in the Lease Area range from
15 meters (m) to 30 m. Water depths in the ECR area extend from the
shoreline to approximately 30 m.
Table 1--Summary of Representative HRG Survey Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
CF = Crocker and
Acoustic source Operating SLrms (dB SL0-pk (dB Pulse duration Repetition Beamwidth Fratantonio
Equipment type frequency re 1 [mu]Pa re 1 [mu]Pa (width) rate (Hz) (degrees) (2016) MAN =
(kHz) m) m) (millisecond) Manufacturer
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-Impulsive, Non-Parametric, Shallow Sub-Bottom Profilers (CHIRP Sonars)
--------------------------------------------------------------------------------------------------------------------------------------------------------
ET 216 (2000DS or 3200 top Non-impulsive, 2-16; 2-8 195 ........... 20 6 24 MAN.
unit). mobile,
intermittent.
ET 424........................ Non-impulsive, 4-24 176 ........... 3.4 2 71 CF.
mobile,
intermittent.
ET 512........................ Non-impulsive, 0.7-12 179 ........... 9 8 80 CF.
mobile,
intermittent.
GeoPulse 5430A................ Non-impulsive, 2-17 196 ........... 50 10 55 MAN.
mobile,
intermittent.
Teledyne Benthos Chirp III-- Non-impulsive, 2-7 197 ........... 60 15 100 MAN.
TTV 170. mobile,
intermittent.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Impulsive, Medium Sub-Bottom Profilers (Sparkers & Boomers)
--------------------------------------------------------------------------------------------------------------------------------------------------------
AA, Dura-spark UHD (400 tips, Impulsive, mobile 0.3-1.2 203 211 1.1 4 Omni CF.
500 J) 1.
AA, Dura-spark UHD (400+400) 1 Impulsive, mobile 0.3-1.2 203 211 1.1 4 Omni CF (AA Dura-spark
UHD Proxy).
GeoMarine, Geo-Source dual 400 Impulsive, mobile 0.4-5 203 211 1.1 2 Omni CF (AA Dura-spark
tip sparker (800 J) 1. UHD Proxy).
GeoMarine Geo-Source 200 tip Impulsive, mobile 0.3-1.2 203 211 1.1 4 Omni CF (AA Dura-spark
sparker (400 J) 1. UHD Proxy).
GeoMarine Geo-Source 200-400 Impulsive, mobile 0.3-1.2 203 211 1.1 4 Omni CF (AA Dura-spark
tip light weight sparker (400 UHD Proxy).
J) 1.
GeoMarine Geo-Source 200-400 Impulsive, mobile 0.3-1.2 203 211 1.1 4 Omni CF (AA Dura-spark
tip freshwater sparker (400 UHD Proxy).
J) 1.
[[Page 33666]]
AA, triple plate S-Boom....... Impulsive, mobile 0.1-5 205 211 0.6 4 80 CF
(700-1,000 J) 2...............
--------------------------------------------------------------------------------------------------------------------------------------------------------
- = not applicable; NR = not reported; [mu]Pa = micropascal; AA = Applied Acoustics; dB = decibel; ET = EdgeTech; HF = high-frequency; J = joule; LF =
low-frequency; Omni = omnidirectional source; re = referenced to; PK = zero-to-peak sound pressure level; SL = source level; SPLrms = root-mean-square
sound pressure level; UHD = ultra-high definition; WFA = weighting factor adjustments.
1 The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey.
The data provided in Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods
and settings when manufacturer or other reliable measurements are not available.
2 Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP-D700 and CSP-N). The CSP-D700 power source was used
in the 700 J measurements but not in the 1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted in a
lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boo.
As noted above, a detailed description of Garden State's planned
surveys is provided in the Federal Register notice for the proposed IHA
(86 FR 22160; April 27, 2021). Since that time, no changes have been
made to the planned survey activities; therefore, a detailed
description if not provided here. Please refer to that Federal Register
notice for the more thorough description of the specified activity.
Required mitigation, monitoring, and reporting measures are described
in detail later in this document (please see Mitigation and Monitoring
and Reporting).
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Garden State was
published in the Federal Register on April 27, 2021 (86 FR 22160).
During the 30-day comment period, NMFS received comments from: (1) A
group of environmental non-governmental organizations (ENGOs) including
the Natural Resources Defense Council, Conservation Law Foundation,
National Wildlife Federation, Defenders of Wildlife, Southern
Environmental Law Center, Wildlife Conservation Society, Surfrider
Foundation, Mass Audubon, Friends of the Earth, International Fund for
Animal Welfare, NY4WHALES, WDC Whale and Dolphin Conservation, Marine
Mammal Alliance Nantucket, Gotham Whale, All Our Energy, Seatuck
Environmental Association, Inland Ocean Coalition, Nassau Hiking &
Outdoor Club, and Connecticut Audubon Society; and (2) the Delaware
Department of Resources and Environmental Control (DNREC).
NMFS has posted the comments online at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. Please see the letters for full detail and
rationale for the comments.
Comment 1: The ENGOs recommended that NMFS incorporate additional
data sources into calculations of marine mammal density and take and
that NMFS must ensure all available data are used to ensure that any
potential shifts in North Atlantic right whale habitat usage are
reflected in estimations of marine mammal density and take. The ENGOs
asserted in general that the density models used by NMFS do not fully
reflect the abundance, distribution, and density of marine mammals for
the U.S. East Coast and therefore result in an underestimate of take.
Response: At the outset of their letter, the ENGOs note that the
comments reflect overarching concerns regarding NMFS' IHAs for marine
site characterization survey (including HRG survey) activities required
for offshore wind energy development, as well as their intention that
the comments be considered in relation to all authorizations associated
with marine site characterization activities for offshore wind energy
off the U.S. East Coast. The comments provided in the letter apparently
focus concern on available data regarding the Massachusetts and Rhode
Island and Massachusetts Wind Energy Areas, and on North Atlantic right
whale habitat usage within those areas. As such, the specific comments
pertaining to those data and right whale habitat usage within those
areas are not germane to this specific action, i.e., issuance of an IHA
associated with HRG survey activity off of Delaware and New Jersey. We
address the general comments regarding sufficiency of the available
data on marine mammal occurrence below.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Lab (MGEL) (Roberts et al. 2016, 2017, 2018, 2020)
represent the best available scientific information concerning marine
mammal occurrence within the U.S. Atlantic Ocean. Density models were
originally developed for all cetacean taxa in the U.S. Atlantic
(Roberts et al., 2016); more information, including the model results
and supplementary information for each of those models, is available at
<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>. These models provided key
improvements over previously available information, by incorporating
additional aerial and shipboard survey data from NMFS and from other
organizations collected over the period 1992-2014, incorporating 60
percent more shipboard and 500 percent more aerial survey hours than
did previously available models; controlling for the influence of sea
state, group size, availability bias, and perception bias on the
probability of making a sighting; and modeling density from an expanded
set of eight physiographic and 16 dynamic oceanographic and biological
covariates. In subsequent years, certain models have been updated on
the basis of additional data as well as methodological improvements. In
addition, a new density model for seals was produced as part of the
2017-18 round of model updates.
Of particular note, Roberts et al. (2020) further updated density
model results for North Atlantic right whales by incorporating
additional sighting data and implementing three major changes:
increasing spatial resolution, generating monthly estimates on three
time periods of survey data, and dividing the study area into five
discrete regions. This most recent update--model version 9 for North
Atlantic right whales--was undertaken with the following objectives
(Roberts et al., 2020):
<bullet> To account for recent changes to right whale
distributions, the model should be based on survey data that extend
through 2018, or later if possible. In addition to updates from
existing collaborators, data should be solicited from two survey
programs not used in prior model versions:
[cir] Aerial surveys of the Massachusetts and Rhode Island Wind
Energy Areas led by New England Aquarium (Kraus et
[[Page 33667]]
al., 2016), spanning 2011-2015 and 2017-2018.
[cir] Recent surveys of New York waters, either traditional aerial
surveys initiated by the New York State Department of Environmental
Conservation in 2017, or digital aerial surveys initiated by the New
York State Energy Research and Development Authority in 2016, or both.
<bullet> To reflect a view in the right whale research community
that spatiotemporal patterns in right whale density changed around the
time the species entered a decline in approximately 2010, consider
basing the new model only on recent years, including contrasting
``before'' and ``after'' models that might illustrate shifts in
density, as well as a model spanning both periods, and specifically
consider which model would best represent right whale density in the
near future.
<bullet> To facilitate better application of the model to near-
shore management questions, extend the spatial extent of the model
farther in-shore, particularly north of New York.
<bullet> Increase the resolution of the model beyond 10 kilometers
(km), if possible.
All of these objectives were met in developing the most recent
update to the North Atlantic right whale density model. The commenters
do not cite this most recent report, and the comments suggest that the
aforementioned data collected by the New England Aquarium is not
reflected in the model. Therefore, it is unclear whether the commenters
are aware of the most recently available data, which is used herein.
As noted above, NMFS has determined that the Roberts et al. suite
of density models represent the best available scientific information,
and we specifically note that the 2020 version of the North Atlantic
right whale model may address some of the specific concerns provided by
the commenters. (Note that there has been an additional minor model
update affecting predictions for Cape Cod Bay in the month of December,
which is not relevant to the location of this survey off of Delaware
and New Jersey.) However, NMFS acknowledges that there will always be
additional data that is not reflected in the models and that may inform
our analyses, whether because the data were not made available to the
model authors or because the data is more recent than the latest model
version for a specific taxon. NMFS will review any recommended data
sources to evaluate their applicability in a quantitative sense (e.g.,
to an estimate of take numbers) and, separately, to ensure that
relevant information is considered qualitatively when assessing the
impacts of the specified activity on the affected species or stocks and
their habitat. NMFS will continue to use the best available scientific
information, and we welcome future input from interested parties on
data sources that may be of use in analyzing the potential presence and
movement patterns of marine mammals, including North Atlantic right
whales, in U.S. Atlantic waters.
The ENGOs cited several additional sources of information that are
not reflected in currently available density models, including
sightings databases and passive acoustic monitoring (PAM) efforts.
However, no specific recommendations were made with regard to use of
this information in informing the take estimates. Rather, the
commenters reference a disparate array of data sources (some which are
indeed reflected in the most recent models) and suggest that NMFS
should ``collate and integrate these and more recent data sets to more
accurately reflect marine mammal presence for future IHAs and other
work.'' NMFS would welcome in the future constructive suggestions as to
how these objectives might be more effectively accomplished. NMFS used
the best scientific information available at the time the analyses for
the proposed IHA were conducted, and has considered all available data,
including sources referenced by the commenters, in reaching its
determinations in support of issuance of the IHA requested by Garden
State.
Comment 2: The ENGOs noted that the Roberts et al. model does not
differentiate between species of pilot whale or seal or between stocks
of bottlenose dolphin. The ENGOs express concern that, as a result,
NMFS may not conduct the appropriate species-or stock-specific
negligible impact analysis. The ENGOs also imply that use of these
models may produce inaccurate take numbers by stating that
``[m]iscalculation of take levels based on incomplete data could have
serious implications for the future conservation of these species and
stocks.''
Response: The MMPA requires that species- or stock-specific
negligible impact determinations be made, and NMFS has done so. In this
case, NMFS has authorized take numbers specific to each affected
species or stock. As a general matter, NMFS is unaware of any available
density data which differentiates between species of pilot whales or
seals, or stocks of bottlenose dolphins. However, lack of such data
does not preclude the requisite species- or stock-specific findings. In
the event that an amount of take is authorized at the guild or species
level only, e.g., for pilot whales or bottlenose dolphins,
respectively, NMFS may adequately evaluate the effects of the activity
by conservatively assuming (for example) that all takes authorized for
the guild or species would accrue to each potentially affected species
or stock. In this case, NMFS has apportioned the overall take number
for bottlenose dolphins according to stock, as described in the
Estimated Take section and, for pilot whales, has assigned take on the
basis of an assumed group size of 10 for each potentially affected
species. NMFS does not agree that use of these models is likely to
result in miscalculation of take levels, and the commenters do not
provide support for this statement.
Comment 3: The ENGOs assert that NMFS has not acknowledged the use
of areas south of Nantucket and Martha's Vineyard as important habitat
for foraging and social behavior for North Atlantic right whales, but
rather that NMFS believes the areas are important solely as a migratory
pathway. The commenters also asserted that NMFS is overly reliant on
the description of biologically important areas (BIA) provided in
LaBrecque et al. (2015), stating that ``NMFS should not rely on the
North Atlantic right whale migratory corridor BIA as the sole indicator
of habitat importance for the species.''
Response: The specified activity associated with the IHA addressed
herein is located off of Delaware and New Jersey. Therefore, this
comment is not relevant to issuance of this IHA. However, as a general
matter, NMFS disagrees with the commenters' assertion. Although NMFS
has in other notices discussed at length the use of the referenced area
as a migratory pathway (and recognition of such use through the area's
description as a BIA for right whales), we have also acknowledged the
more recent data and its implications for the use of the referenced
area (85 FR 63508; December 7, 2018; 86 FR 11930; March 1, 2021).
Similarly, NMFS does not agree with the assertion that our
understanding of important habitat for marine mammals stems solely from
existing, described BIAs. NMFS concurs with the statement that BIAs are
not comprehensive and are intended to be periodically reviewed and
updated and we routinely review newly available information to inform
our understanding of important marine mammal habitat. In this case, the
specified geographical region does not include important habitat other
than that described as being the migratory pathway for right whales.
Comment 4: The ENGOs commented that the waters off Cape Hatteras,
North Carolina, have high marine mammal
[[Page 33668]]
biodiversity and that marine mammals occur at unusually high densities
off Cape Hatteras compared to other areas along the East Coast. The
ENGOs asserted that this area demands special attention from NMFS.
Response: NMFS concurs with the commenters regarding the importance
of deepwater areas off of Cape Hatteras. However, the specific activity
associated with the IHA addressed herein does not occur off of Cape
Hatteras and, in general, the site characterization surveys conducted
in support of wind energy development that are the subject of the ENGO
comment letter occur in shallow water (not the area of high
biodiversity and density referenced by commenters). When appropriate,
NMFS has accorded special attention to the development of additional
mitigation for activities conducted in that location (83 FR 63268;
December 7, 2018). NMFS uses the best available scientific information
when analyzing potential impacts to marine mammals and in developing
prescribed mitigation sufficient to meet the MMPA's ``least practicable
adverse impact'' standard, and has done so in this case.
Comment 5: The ENGOs asserted that NMFS must analyze cumulative
impacts to North Atlantic right whales and other marine mammal species
and stocks and ensure appropriate mitigation of these cumulative
impacts. The ENGOs express particular concern about the cumulative
impacts of survey activities off Rhode Island and Massachusetts on
North Atlantic right whales. They further recommended that NMFS develop
programmatic incidental take regulations applicable to site
characterization activities. DNREC noted that an IHA was recently
issued to Skipjack for take of marine mammals incidental to marine site
characterization surveys offshore of Delaware (86 FR 18943; April 12,
2021) and recommended that NMFS consider the potential cumulative
impacts of Skipjack and Garden State surveys prior to issuing an IHA to
Garden State.
Response: Neither the MMPA nor NMFS' codified implementing
regulations call for consideration of other unrelated activities and
their impacts on populations. The preamble for NMFS' implementing
regulations (54 FR 40338; September 29, 1989) states in response to
comments that the impacts from other past and ongoing anthropogenic
activities are to be incorporated into the negligible impact analysis
via their impacts on the baseline. Consistent with that direction, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline, e.g., as reflected in the density/distribution and status of
the species, population size and growth rate, and other relevant
stressors. The 1989 implementing regulations also addressed public
comments regarding cumulative effects from future, unrelated
activities. There NMFS stated that such effects are not considered in
making findings under section 101(a)(5) concerning negligible impact.
In this case, both this IHA, as well as other IHAs currently in effect
or proposed within the specified geographic region, are appropriately
considered an unrelated activity relative to the others. The IHAs are
unrelated in the sense that they are discrete actions under section
101(a)(5)(D), issued to discrete applicants. Therefore, the IHA issued
to Skipjack for take associated with marine site characterization
surveys is considered discrete from and unrelated to Garden State's
IHA.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of the specified activity or
class of activities that can be expected to result in incidental taking
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, Garden State was the applicant for the IHA, and we are
responding to the specified activity as described in that application
(and making the necessary findings on that basis).
Through the response to public comments in the 1989 implementing
regulations, we also indicated (1) that NMFS would consider cumulative
effects that are reasonably foreseeable when preparing a NEPA analysis,
and (2) that reasonably foreseeable cumulative effects would also be
considered under section 7 of the ESA for ESA-listed species. In this
case, cumulative impacts have been adequately addressed under NEPA in
prior environmental analyses that form the basis for NMFS'
determination that this action is appropriately categorically excluded
from further NEPA analysis. Regarding activities in the Mid- and South
Atlantic region, in 2018 NMFS signed a Record of Decision that (1)
adopted the Bureau of Ocean Energy Management's 2014 Final Programmatic
Environmental Impact Statement that evaluated the direct, indirect, and
cumulative impacts of geological and geophysical survey activities on
the Mid- and South Atlantic Outer Continental Shelf to support NMFS'
analysis associated with issuance of incidental take authorizations
pursuant to sections 101(a)(5)(A) or (D) of the MMPA and the
regulations governing the taking and importing of marine mammals (50
CFR part 216), and (2) in accordance with 40 CFR 1505.2, announced and
explained the basis for our decision to review and potentially issue
incidental take authorizations under the MMPA on a case-by-case basis,
if appropriate. Separately, NMFS has previously written Environmental
Assessments (EA) that addressed cumulative impacts related to
substantially similar activities, in similar locations, e.g., 2019
[Oslash]rsted EA for survey activities offshore southern New England;
2019 Avangrid EA for survey activities offshore North Carolina and
Virginia; 2018 Deepwater Wind EA for survey activities offshore
Delaware, Massachusetts, and Rhode Island.
Separately, cumulative effects were analyzed as required through
NMFS' required intra-agency consultation under section 7 of the ESA,
which determined that NMFS' action of issuing the IHA is not likely to
adversely affect listed marine mammals or their critical habitat.
Finally, the ENGOs suggested that NMFS should promulgate
programmatic incidental take regulations for site characterization
activities. Although NMFS is open to this approach, we have not
received a request for such regulations. The ENGOs do not explain their
apparent position that NMFS may advance regulations absent a requester.
Comment 6: The ENGOs state that NMFS should not adjust estimated
take numbers for large whales on the basis of assumed efficacy of
mitigation requirements, and assert that NMFS' assumptions regarding
effectiveness of mitigation requirements are unfounded.
Response: In this case, NMFS did not propose to adjust downward any
estimated take number based on proposed mitigation measures, and has
not done so in the issued IHA. Therefore, the comment is not relevant
to this specific action. Generally, NMFS does not agree with the
apparent contention that it is never appropriate to reduce estimated
take numbers based on anticipated implementation and effectiveness of
mitigation measures, and will continue to evaluate the appropriateness
of doing so on a case-specific basis.
While we acknowledge the commenters' concerns regarding unfounded
assumptions concerning the
[[Page 33669]]
effectiveness of mitigation requirements in reducing actual take, it is
important to also acknowledge the circumstances of a particular action.
In most cases, the maximum estimated Level B harassment zone associated
with commonly-used acoustic sources is approximately 150 meters (m),
whereas the typically-required shutdown zone for North Atlantic right
whales is 500 m. For North Atlantic right whales, NMFS expects that
this requirement will indeed be effective in reducing actual take below
the estimated amount, which typically does not account for the
beneficial effects of mitigation.
Comment 7: The ENGOs state that NMFS must require mitigation
measures that meet the least practicable adverse impact standard, imply
that the requirements prescribed by NMFS have not met that standard,
and recommend various measures that the commenters state NMFS should
require.
The ENGOs first state that NMFS should prohibit site assessment and
characterization activities involving equipment with noise levels that
the commenters assert could cause injury or harassment to North
Atlantic right whales during periods of highest risk, which the
commenters define as times of highest relative density of animals
during their migration, and times when mother-calf pairs, pregnant
females, surface active groups, or aggregations of three or more whales
are, or are expected to be, present. The commenters additionally state
that NMFS should require that work commence only during daylight hours
and good visibility conditions to maximize the probability that marine
mammals are detected and confirmed clear of the exclusion zone before
activities begin. If the activity is halted or delayed because of
documented or suspected North Atlantic right whale presence in the
area, the commenters state that NMFS should require operators to wait
until daylight hours and good visibility conditions to recommence.
Response: NMFS acknowledges the limitations inherent in detection
of marine mammals at night. However, no injury is expected to result
even in the absence of mitigation, given the characteristics of the
sources planned for use (supported by the very small estimated Level A
harassment zones). The ENGOs do not provide any support for the
apparent contention that injury is a potential outcome of these
activities. Regarding Level B harassment, any potential impacts would
be limited to short-term behavioral responses, as described in greater
detail herein. The commenters establish that the status of North
Atlantic right whales in particular is precarious. NMFS agrees in
general with the discussion of this status provided by the commenters.
NMFS also agrees with the commenters that certain recommended
mitigation requirements, e.g., avoiding impacts in places and times of
greatest importance to marine mammals, limiting operations to times of
greatest visibility, would be effective in reducing impacts. However,
the commenters fail entirely to establish that Garden State's specified
site assessment and characterization survey activities--or site
assessment and characterization survey activities in general--would
have impacts on North Atlantic right whales (or any other species) such
that operational limitations would be warranted. In fact, NMFS
considers this category of survey operations to be near de minimis,
with the potential for Level A harassment for any species to be
discountable and the severity of Level B harassment (and, therefore,
the impacts of the take event on the affected individual), if any, to
be low. In that context, there is no need for more restrictive
mitigation requirements, and the commenters offer no justification to
the contrary.
Restricting surveys in the manner suggested by the commenters may
reduce marine mammal exposures by some degree in the short term, but
would not result in any significant reduction in either intensity or
duration of noise exposure. Vessels would also potentially be on the
water for an extended time introducing noise into the marine
environment. The restrictions recommended by the commenters could
result in the surveys spending increased time on the water, which may
result in greater overall exposure to sound for marine mammals; thus
the commenters have not demonstrated that such a requirement would
result in a net benefit. Furthermore, restricting the applicant to
begin operations only during daylight hours would have the potential to
result in lengthy shutdowns of the survey equipment, which could result
in the applicant failing to collect the data they have determined is
necessary and, subsequently, the need to conduct additional surveys the
following year. This would result in significantly increased costs
incurred by the applicant. Thus, the restriction suggested by the
commenters would not be practicable for the applicant to implement.
Finally, NMFS is requiring the use of night vision equipment (night
vision goggles with thermal clip-ons and infrared/thermal imaging
technology) to facilitate detection of marine mammals approaching and
within the exclusion zones during pre-start clearance and active survey
operations during nighttime operations, In consideration of the likely
effects of the activity on marine mammals absent mitigation, potential
unintended consequences of the measures as proposed by the commenters,
practicability of the recommended measures for the applicant, and
required use of night vision equipment, NMFS has determined that
restricting operations as recommended is not warranted or practicable
in this case.
Comment 8: The ENGOs recommended that NMFS establish an exclusion
zone (EZ) of 1,000-m around each vessel conducting activities with
noise levels that they assert could result in injury or harassment to
North Atlantic right whales, and a minimum EZ of 500 m for all other
large whale species and strategic stocks of small cetaceans.
Response: NMFS disagrees with this recommendation, and has
determined that the EZs included here are sufficiently protective. We
note that the 500-m EZ for North Atlantic right whales exceeds the
modeled distance to the largest Level B harassment isopleth distance
(141 m) by a factor of more than three. The commenters do not provide
any justification for the contention that the existing EZs are
insufficient, and do not provide any rationale for their recommended
alternatives (other than that they are larger).
Comment 9: The ENGOs stated that NMFS' requirements related to
visual monitoring are inadequate. The commenters specifically noted
their belief that a requirement for one Protected Species Observer
(PSO) to be on duty during daylight hours is insufficient, and
recommended that NMFS require the use of infrared equipment to support
visual monitoring by PSOs during periods of darkness. DNREC also
recommended that infrared equipment be used to support visual
monitoring by PSOs during periods of darkness.
Response: NMFS typically requires that a single PSO must be
stationed at the highest vantage point and engaged in general 360-
degree scanning during daylight hours only. Although NMFS acknowledges
that the single PSO cannot reasonably maintain observation of the
entire 360-degree area around the vessel, it is reasonable to assume
that the single PSO engaged in continual scanning of such a small area
(i.e., 500-m EZ, which is greater than the maximum 141-m harassment
zone) will
[[Page 33670]]
be successful in detecting marine mammals that are available for
detection at the surface. The monitoring reports submitted to NMFS have
demonstrated that PSOs active only during daylight operations are able
to detect marine mammals and implement appropriate mitigation measures.
As far as visual monitoring at night, we have not historically required
visual monitoring at night because available information demonstrated
that such monitoring should not be considered effective. However, as
night vision technology has continued to improve, NMFS has adapted its
practice, and two PSOs are required to be on duty at night. Moreover,
as previously noted, NMFS has included a requirement in the final IHA
that night-vision equipment (i.e., night-vision goggles with thermal
clip-ons and infrared/thermal imaging technology) must be available for
use.
Regarding specific technology cited by the ENGOs, NMFS appreciates
the suggestion and agrees that relatively new detection platforms have
shown promising results. Following review of the ENGO's letter, we
considered these and other supplemental platforms as suggested.
However, to our knowledge, there is no clear guidance available for
operators regarding characteristics of effective systems, and the
detection systems cited by the commenters are typically extremely
expensive, and are therefore considered impracticable for use in most
surveys. The commenters do not provide specific suggestions with regard
to recommended systems or characteristics of systems. NMFS does not
generally consider requirements to use systems such as those cited by
the commenters to currently be practicable.
Comment 10: The ENGOs recommended that NMFS should require PAM at
all times, both day and night, to maximize the probability of detection
for North Atlantic right whales, and other species and stocks. DNREC
also recommended the combined use of visual monitoring and PAM,
especially during nighttime operations, to minimize impacts on
protected species.
Response: The foremost concern expressed by the ENGOs in making the
recommendation to require use of PAM is with regard to North Atlantic
right whales. However, the commenters do not explain why they expect
that PAM would be effective in detecting vocalizing mysticetes. It is
generally well-accepted fact that, even in the absence of additional
acoustic sources, using a towed passive acoustic sensor to detect
baleen whales (including right whales) is not typically effective
because the noise from the vessel, the flow noise, and the cable noise
are in the same frequency band and will mask the vast majority of
baleen whale calls. Vessels produce low-frequency noise, primarily
through propeller cavitation, with main energy in the 5-300 Hertz (Hz)
frequency range. Source levels range from about 140 to 195 decibel (dB)
re 1 [mu]Pa (micropascal) at 1 m (NRC, 2003; Hildebrand, 2009),
depending on factors such as ship type, load, and speed, and ship hull
and propeller design. Studies of vessel noise show that it appears to
increase background noise levels in the 71-224 Hz range by 10-13 dB
(Hatch et al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM
systems employ hydrophones towed in streamer cables approximately 500 m
behind a vessel. Noise from water flow around the cables and from
strumming of the cables themselves is also low-frequency and typically
masks signals in the same range. Experienced PAM operators
participating in a recent workshop (Thode et al., 2017) emphasized that
a PAM operation could easily report no acoustic encounters, depending
on species present, simply because background noise levels rendered any
acoustic detection impossible. The same workshop report stated that a
typical eight-element array towed 500 m behind a vessel could be
expected to detect delphinids, sperm whales, and beaked whales at the
required range, but not baleen whales, due to expected background noise
levels (including seismic noise, vessel noise, and flow noise).
There are several additional reasons why we do not agree that use
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM
can be an important tool for augmenting detection capabilities in
certain circumstances, its utility in further reducing impact during
HRG survey activities is limited. First, for this activity, the area
expected to be ensonified above the Level B harassment threshold is
relatively small (a maximum of 141 m)--this reflects the fact that, to
start with, the source level is comparatively low and the intensity of
any resulting impacts would be lower level and, further, it means that
inasmuch as PAM will only detect a portion of any animals exposed
within a zone, the overall probability of PAM detecting an animal in
the harassment zone is low--together these factors support the limited
value of PAM for use in reducing take with smaller zones. PAM is only
capable of detecting animals that are actively vocalizing, while many
marine mammal species vocalize infrequently or during certain
activities, which means that only a subset of the animals within the
range of the PAM would be detected (and potentially have reduced
impacts). Additionally, localization and range detection can be
challenging under certain scenarios. For example, odontocetes are fast
moving and often travel in large or dispersed groups which makes
localization difficult.
Given that the effects to marine mammals from the types of surveys
authorized in this IHA are expected to be limited to low level
behavioral harassment even in the absence of mitigation, the limited
additional benefit anticipated by adding this detection method
(especially for right whales and other low frequency cetaceans, species
for which PAM has limited efficacy), and the cost and impracticability
of implementing a full-time PAM program, we have determined the current
requirements for visual monitoring are sufficient to ensure the least
practicable adverse impact on the affected species or stocks and their
habitat.
Comment 11: The ENGOs recommended that NMFS require applicants to
use the lowest practicable source level.
Response: Wind energy developers selected the equipment necessary
during HRG surveys to achieve their objectives. As part of the analysis
for all HRG IHAs, NMFS evaluated the effects expected as a result of
use of this equipment, made the necessary findings, and imposed
mitigation requirements sufficient to achieve the least practicable
adverse impact on the affected species and stocks of marine mammals. It
is not within NMFS' purview to make judgments regarding what
constitutes the ``lowest practicable source level'' for an operator's
survey objectives.
Comment 12: The ENGOs recommended that NMFS require all offshore
wind energy related project vessels operating within or transiting to/
from survey areas, regardless of size, to observe a 10-knot speed
restriction during the entire survey period.
Response: NMFS does not concur with these measures. NMFS has
analyzed the potential for ship strike resulting from various HRG
activities and has determined that the mitigation measures specific to
ship strike avoidance are sufficient to avoid the potential for ship
strike. These include: A requirement that all vessel operators comply
with 10 knot (18.5 km/hour) or less speed restrictions in any
established dynamic management area (DMA) or seasonal management area
(SMA); a requirement that all vessel operators reduce vessel speed to
10
[[Page 33671]]
knots (18.5 km/hour) or less when any large whale, mother/calf pairs,
pods, or large assemblages of non-delphinid cetaceans are observed
within 100 m of an underway vessel; a requirement that all survey
vessels maintain a separation distance of 500 m or greater from any
sighted North Atlantic right whale; a requirement that, if underway,
vessels must steer a course away from any sighted North Atlantic right
whale at 10 knots or less until the 500 m minimum separation distance
has been established; a requirement that all vessels must maintain a
minimum separation distance of 100 m from sperm whales and all other
baleen whales; and a requirement that all vessels must, to the maximum
extent practicable, attempt to maintain a minimum separation distance
of 50 m from all other marine mammals, with an understanding that at
times this may not be possible (e.g., for animals that approach the
vessel). We have determined that the ship strike avoidance measures are
sufficient to ensure the least practicable adverse impact on species or
stocks and their habitat. Furthermore, no documented vessel strikes
have occurred for any marine site characterization survey activities
which were issued IHAs from NMFS.
Comment 13: The ENGOs recommend that NMFS work with relevant
experts and stakeholders towards developing a robust and effective near
real-time monitoring and mitigation system for North Atlantic right
whales and other endangered and protected species (e.g., fin, sei,
minke, and humpback whales) during offshore wind energy development.
Response: NMFS is generally supportive of this concept. A network
of near real-time baleen whale monitoring devices are active or have
been tested in portions of New England and Canadian waters. These
systems employ various digital acoustic monitoring instruments which
have been placed on autonomous platforms including slocum gliders, wave
gliders, profiling floats and moored buoys. Systems that have proven to
be successful will likely see increased use as operational tools for
many whale monitoring and mitigation applications. The ENGOs cited the
NMFS publication ``Technical Memorandum NMFS[hyphen]OPR[hyphen]64:
North Atlantic Right Whale Monitoring and Surveillance: Report and
Recommendations of the National Marine Fisheries Service's Expert
Working Group'' which is available at: <a href="https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whale-monitoring-and-surveillance-report-and-recommendations">https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whale-monitoring-and-surveillance-report-and-recommendations</a>. This report summarizes a
workshop NMFS convened to address objectives related to monitoring
North Atlantic right whales and presents the Expert Working Group's
recommendations for a comprehensive monitoring strategy to guide future
analyses and data collection. Among the numerous recommendations found
in the report, the Expert Working Group encouraged the widespread
deployment of auto-buoys to provide near real-time detections of North
Atlantic right whale calls that visual survey teams can then respond to
for collection of identification photographs or biological samples.
Comment 14: The ENGOs state that NMFS must not issue renewal IHAs,
and assert that the process is contrary to statutory requirements.
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 one 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. The notice of the proposed IHA published
in the Federal Register on April 27, 2021 (86 FR 22160) made clear that
the agency was seeking comment on both the initial proposed IHA and the
potential issuance of a renewal for this project. Because any renewal
(as explained in the Comments and Responses section) is limited to
another year of identical or nearly identical activities in the same
location (as described in the Description of Specified Activity
section) or the same activities that were not completed within the 1-
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 in
the coming months.
While there will be additional documents submitted with a renewal
request, for a qualifying renewal these will be 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
will also contain a preliminary monitoring report, in order 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. 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.
Comment 15: The ENGOs expressed concern about past instances where
NMFS has modified issued IHAs in response to preliminary monitoring
data indicating that certain species of marine mammal were being
encountered more frequently than anticipated.
Response: No modifications are included as part of this action and,
therefore, this comment is not relevant to this IHA.
Comment 16: DNREC recommended that NMFS require the implementation
of seasonal restrictions on site characterization activities that have
the potential to injure or harass the North Atlantic right whale from
November 1 through April 30.
Response: NMFS is concerned about the status of the North Atlantic
right whale, given that a UME has been in effect for this species since
June of 2017 and that there have been a number of recent mortalities.
NMFS appreciates the value of seasonal restrictions under some
circumstances. However, in this case, we have determined seasonal
restrictions are not warranted. NMFS is requiring Garden State to
comply with restrictions associated with identified SMAs and they must
comply with DMAs, if any DMAs are established near the project area.
Furthermore, we have established a 500-m shutdown zone for North
Atlantic right whales, which is more than three times as large as the
greatest Level B harassment isopleth calculated for the specified
activities for this IHA. The largest behavioral isopleth is 141 m
associated with the Applied Acoustics Dura-Spark UHD and GeoMarine Geo-
Source sparkers. Take estimation conservatively assumes that these
acoustic sources will operate on all survey days although it is
probable that Garden State will only use sparkers on a subset of survey
days, and on the remaining days utilize HRG equipment with considerably
smaller Level B harassment isopleths. Therefore, the
[[Page 33672]]
number of Level B harassment takes is likely an overestimate. Finally,
significantly shortening Garden State's work season is impracticable
given the number of survey days planned for the specified activity for
this IHA.
Comment 17: DNREC noted that NMFS published an extension of
emergency measures to address fishery observer coverage during the
COVID-19 coronavirus pandemic, providing NMFS with continued authority
under the Magnuson-Stevens Fishery Conservation and Management Act
(MSA) to waiver observer coverage requirements when such action is
necessary due to the COVID-19 public health emergency (85 FR 17285;
March 27, 2020). DNREC's understanding is that this emergency action is
not related to the PSO requirement under the MMPA, and that NMFS does
not have any intention of waiving the PSO requirement for Garden
State's marine site characterization surveys.
Response: DNREC is correct in its understanding that the extension
of emergency measures providing NMFS with the authority to waive
fishery observer coverage under the MSA does not apply to required PSO
coverage under an issued MMPA IHA.
Changes From the Proposed IHA to Final IHA
NMFS has clarified that night vision equipment PSOs will be
required to use during nighttime survey operations will include night
vision goggles with thermal clip-ons and infrared/thermal imagery.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history, of the potentially affected species.
Additional information regarding population trends and threats may be
found in NMFS' Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS'
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species or stocks for which take is authorized
for this action, and summarizes information related to the population
or stock, including regulatory status under the MMPA and Endangered
Species Act (ESA) and potential biological removal (PBR), where known.
For taxonomy, NMFS follows the Committee on Taxonomy (2020). PBR is
defined by the MMPA as the maximum number of animals, not including
natural mortalities, that may be removed from a marine mammal stock
while allowing that stock to reach or maintain its optimum sustainable
population (as described in NMFS' SARs). While no mortality is
anticipated or authorized here, PBR and annual serious injury and
mortality from anthropogenic sources are included here as gross
indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in
Table 2 are the most recent available at the time of publication and
are available in the 2019 SARs (Hayes et al., 2020) and draft 2020 SARS
available (except as otherwise noted) at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>.
Table 2--Marine Mammal Species Likely To Occur Near the Project Area That May Be Affected by Garden State's Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock Strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale \4\.. Eubalaena glacialis.... Western North Atlantic. E/D; Y 368 (0; 356; 2020).... 0.8 18.6
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae (rorquals):
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -/-; Y 1,393 (0; 1,375; 2016) 22 58
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E/D; Y 6,802 (0.24; 5,573; 11 2.35
2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E/D; Y 6,292 (1.015; 3,098).. 6.2 1.2
Minke whale..................... Balaenoptera Canadian East Coast.... -/-; N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. NA..................... E; Y 4,349 (0.28;3,451).... 3.9 0
Family Delphinidae:
Long-finned pilot whale......... Globicephala melas..... Western North Atlantic. -/-; N 39,215 (0.30; 30,627). 306 21
Short finned pilot whale........ Globicephala Western North Atlantic. -/-;Y 28,924 (0.24; 23,637). 236 160
macrorhynchus.
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic -/-; N 62,851 (0.23; 51,914). 519 28
Offshore.
W.N.A. Northern -/-;Y 6,639 (0.41,4 ,759, 48 12.2-21.5
Migratory Coastal. 2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -/-; N 172,947 (0.21; 1,452 399
145,216; 2016).
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -/-; N 93,233 (0.71; 54,443). 544 26
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -/-; N 39,921 (0.27; 32,032; 320 0
2012).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -/-; N 35,493 (0.19; 30,289). 303 54.3
Family Phocoenidae (porpoises):
[[Page 33673]]
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -/-; N 95,543 (0.31; 74,034). 851 217
Fundy.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \5\................... Halichoerus grypus..... Western North Atlantic. -/-; N 27,131 (0.19; 23,158, 1,389 4,729
2016).
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -/-; N 75,834 (0.15; 66,884, 2,006 350
2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>-region. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ Abundance source is Pace (2021). PBR and Annual M/SI source is draft 2020 SAR (Hayes et al. 2020). Because PBR is based on the minimum population
estimate, we anticipate it will be slightly lower than what is presented here given the Pace (2021) abundance; however, the 2020 SARs are not yet
finalized. Regardless of final numbers, NMFS recognizes the NARW stock is critically endangered with a low PRB and high annual M/SI rate due primarily
to ship strikes and entanglement.
\5\ The NMFS stock abundance estimate applies to U.S. population only, however the actual stock abundance is approximately 451,431.
As indicated above, all 16 species (with 17 managed stocks) in
Table 2 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur and has been authorized
by NMFS. In addition to what is included in Sections 3 and 4 of the
application, the SARs, and NMFS' website, further detail informing the
baseline for select species (i.e., information regarding current
Unusual Mortality Events (UME) and important habitat areas) was
provided in the notice of the proposed IHA (86 FR 22160; April 27,
2021) and is not repeated here. Except for the updated North Atlantic
right whale abundance (Pace 2021), no additional new relevant
information is available since publication of that notice.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65 dB
threshold from the normalized composite audiograms, with the exception
for lower limits for low-frequency cetaceans where the lower bound was
deemed to be biologically implausible and the lower bound from Southall
et al. (2007) retained. Marine mammal hearing groups and their
associated hearing ranges are provided in Table 3.
Table 3--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009).
For more detail concerning these groups and associated frequency
ranges,
[[Page 33674]]
please see NMFS (2018) for a review of available information. Sixteen
marine mammal species (14 cetacean and 2 pinniped (both phocid)
species) have the reasonable potential to co-occur with the planned
survey activities. Please refer to Table 2. Of the cetacean species
that may be present, five are classified as low-frequency cetaceans
(i.e., all mysticete species), eight are classified as mid-frequency
cetaceans (i.e., all delphinid species and the sperm whale), and one is
classified as a high-frequency cetacean (i.e., harbor porpoise).
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The notice of proposed IHA included a summary of the ways that
Garden State's specified activity may impact marine mammals and their
habitat (86 FR 22160; April 27, 2021). Detailed descriptions of the
potential effects of similar specified activities have been provided in
other recent Federal Register notices, including for survey activities
using the same methodology, over a similar amount of time, and
occurring within the same specified geographical region (e.g., 82 FR
20563, May 3, 2017; 85 FR 36537, June 17, 2020; 85 FR 37848, June 24,
2020; 85 FR 48179, August 10, 2020; 86 FR 26465; May 14, 2021). No
significant new information is available, and NMFS refers the reader to
the notice of proposed IHA and to these documents rather than repeating
the details here. The Estimated Take section includes a quantitative
analysis of the number of individuals that are expected to be taken by
Garden State's activity. The Negligible Impact Analysis and
Determination section considers the potential effects of the specified
activity, the Estimated Take section, and the Mitigation section, to
draw conclusions regarding the likely impacts of these activities on
the reproductive success or survivorship of individuals and how those
impacts on individuals are likely to impact marine mammal species or
stocks. The notice of proposed IHA also provided background information
regarding active acoustic sound sources and acoustic terminology, which
is not repeated here.
The potential effects of Ocean Wind's specified survey activity are
expected to be limited to Level B behavioral harassment. No permanent
or temporary auditory effects, or significant impacts to marine mammal
habitat, including prey, are expected.
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through this IHA, which will inform both NMFS' consideration
of ``small numbers'' and the negligible impact determination.
Level B behavioral harassment is the only type of take expected to
result from these activities. Except with respect to certain activities
not pertinent here, section 3(18) of the MMPA defines ``harassment'' as
any act of pursuit, torment, or annoyance, which (i) has the potential
to injure a marine mammal or marine mammal stock in the wild (Level A
harassment); or (ii) has the potential to disturb a marine mammal or
marine mammal stock in the wild by causing disruption of behavioral
patterns, including, but not limited to, migration, breathing, nursing,
breeding, feeding, or sheltering (Level B behavioral harassment).
Authorized takes are by Level B harassment only, in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to noise from certain HRG acoustic sources.
Based on the characteristics of the signals produced by the acoustic
sources planned for use, Level A harassment is neither anticipated,
even absent mitigation, nor authorized. Consideration of the
anticipated effectiveness of the mitigation measures (i.e., exclusion
zones and shutdown measures), discussed in detail below in the
Mitigation section, further strengthens the conclusion that Level A
harassment is not a reasonably anticipated outcome of the survey
activity. As described previously, no serious injury or mortality is
anticipated, even absent mitigation, or authorized for this activity.
Generally speaking, NMFS estimates take by considering: (1)
Acoustic thresholds above which NMFS believes the best available
science indicates marine mammals will be behaviorally harassed or incur
some degree of permanent hearing impairment; (2) the area or volume of
water that will be ensonified above these levels in a day; (3) the
density or occurrence of marine mammals within these ensonified areas;
and, (4) and the number of days of activities. NMFS notes that while
these basic factors can contribute to a basic calculation to provide an
initial prediction of takes, additional information that can
qualitatively inform take estimates is also sometimes available (e.g.,
previous monitoring results or average group size). Below, NMFS
describes the factors considered here in more detail and present the
take estimate.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source (e.g., frequency, predictability, duty cycle), the environment
(e.g., bathymetry), and the receiving animals (hearing, motivation,
experience, demography, behavioral context) and can be difficult to
predict (Southall et al., 2007, Ellison et al., 2012). NMFS uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS predicts that marine mammals are
likely to be behaviorally harassed (i.e., Level B harassment) when
exposed to underwater anthropogenic noise above received levels of 160
dB re 1 [mu]Pa (rms) for the impulsive sources (i.e., boomers,
sparkers) and non-impulsive, intermittent sources (e.g., CHIRP SBPs)
evaluated here for Garden State's survey activities.
Level A harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive). For more
information, see NMFS' 2018 Technical Guidance, which may be accessed
at <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Garden State's activity includes the use of impulsive (i.e.,
sparkers and boomers) and non-impulsive (e.g., CHIRP SBP) sources.
However, as discussed above, NMFS has concluded that Level A harassment
is not a reasonably likely outcome for marine mammals exposed to noise
through use of the sources Garden State plans to use, and the potential
for Level A harassment is not evaluated further in this document.
Please see Garden State's application for details of a quantitative
exposure analysis exercise (i.e., calculated Level A harassment
isopleths and estimated Level A harassment exposures). Maximum
estimated Level
[[Page 33675]]
A harassment isopleths were less than 3 m for all sources and hearing
groups with the exception of an estimated 37 m zone and 17 m zone
calculated for high-frequency cetaceans during use of the GeoPulse 5430
CHIRP SBP and the TB CHIRP III, respectively (see Table 1 for source
characteristics). Garden State did not request authorization of take by
Level A harassment, and no take by Level A harassment is authorized by
NMFS.
Ensonified Area
NMFS has developed a user-friendly methodology for estimating the
extent of the Level B harassment isopleths associated with relevant HRG
survey equipment (NMFS, 2020). This methodology incorporates frequency
and directionality to refine estimated ensonified zones. For acoustic
sources that operate with different beamwidths, the maximum beamwidth
was used, and the lowest frequency of the source was used when
calculating the frequency-dependent absorption coefficient (Table 1).
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG equipment and, therefore, recommends that source levels
provided by Crocker and Fratantonio (2016) be incorporated in the
method described above to estimate isopleth distances to harassment
thresholds. In cases when the source level for a specific type of HRG
equipment is not provided in Crocker and Fratantonio (2016), NMFS
recommends that either the source levels provided by the manufacturer
be used, or, in instances where source levels provided by the
manufacturer are unavailable or unreliable, a proxy from Crocker and
Fratantonio (2016) be used instead. Table 1 shows the HRG equipment
types that may be used during the planned surveys and the sound levels
associated with those HRG equipment types.
Results of modeling using the methodology described above indicated
that, of the HRG survey equipment planned for use by Garden State that
has the potential to result in Level B harassment of marine mammals,
the Applied Acoustics Dura-Spark UHD and GeoMarine Geo-Source sparkers
would produce the largest Level B harassment isopleth (141 m; please
see Table 4 of Garden State's application). Estimated Level B
harassment isopleths associated with the boomer and CHIRP SBP systems
planned for use are estimated as 25 and 36 m, respectively. Although
Garden State does not expect to use sparker sources on all planned
survey days, it assumed for purposes of analysis that the sparker would
be used on all survey days. This is a conservative approach, as the
actual sources used on individual survey days may produce smaller
harassment distances.
Marine Mammal Occurrence
In this section, NMFS provides information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020)
represent the best available information regarding marine mammal
densities in the planned survey area. The density data presented by
Roberts et al. (2016, 2017, 2018, 2020) incorporates aerial and
shipboard line-transect survey data from NMFS and other organizations
and incorporates data from 8 physiographic and 16 dynamic oceanographic
and biological covariates, and controls for the influence of sea state,
group size, availability bias, and perception bias on the probability
of making a sighting. These density models were originally developed
for all cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In
subsequent years, certain models have been updated based on additional
data as well as certain methodological improvements. More information
is available online at <a href="http://seamap.env.duke.edu/models/Duke-EC-GOM-2015/">seamap.env.duke.edu/models/Duke-EC-GOM-2015/</a>.
Marine mammal density estimates in the survey area (animals/km\2\) were
obtained using the most recent model results for all taxa (Roberts et
al., 2016, 2017, 2018, 2020). The updated models incorporate additional
sighting data, including sightings from the NOAA Atlantic Marine
Assessment Program for Protected Species (AMAPPS) surveys.
For the exposure analysis, density data from Roberts et al. (2016,
2017, 2018, 2020) were mapped using a geographic information system
(GIS). Density grid cells that included any portion of the planned
survey area were selected for all survey months (see Figure 3 in Garden
State's application).
Densities from each of the selected density blocks were averaged
for each month available to provide monthly density estimates for each
species (when available based on the temporal resolution of the model
products), along with the average annual density. Please see Tables 7
and 8 of Garden State's application for density values used in the
exposure estimation process for the Lease Area and the potential ECRs,
respectively. Note that no density estimates are available for the
portion of the ECR area in Delaware Bay, so the marine mammal densities
from the density models of Roberts et al. (2016, 2017, 2018, 2020) were
assumed to apply to this area. Additional data regarding average group
sizes from survey effort in the region was considered to ensure
adequate take estimates are evaluated.
Take Calculation and Estimation
Here NMFS describes how the information provided above is brought
together to produce a quantitative take estimate. In order to estimate
the number of marine mammals predicted to be exposed to sound levels
that would result in harassment, radial distances to predicted
isopleths corresponding to Level B harassment thresholds are
calculated, as described above. The maximum distance (i.e., 141 m
distance associated with sparkers) to the Level B harassment criterion
and the estimated trackline distance traveled per day by a given survey
vessel (i.e., 70 km) are then used to calculate the daily ensonified
area, or zone of influence (ZOI) around the survey vessel.
The ZOI is a representation of the maximum extent of the ensonified
area around a sound source over a 24-hr period. The ZOI for each piece
of equipment operating below 200 kHz was calculated per the following
formula:
ZOI = (Distance/day x 2r) + [pi]r\2\
Where r is the linear distance from the source to the harassment
isopleth.
ZOIs associated with all sources with the expected potential to
cause take of marine mammals are provided in Table 6 of Garden State's
application. The largest daily ZOI (19.8 km\2\), associated with the
various sparkers planned for use, was applied to all planned survey
days.
Potential Level B harassment exposures are estimated by multiplying
the average annual density of each species within either the Lease Area
or potential ECR area by the daily ZOI. That product is then multiplied
by the number of operating days expected for the survey in each area
assessed, and the product is rounded to the nearest whole number. These
results are shown in Table 4.
[[Page 33676]]
Table 4--Summary of Authorized Take Numbers
----------------------------------------------------------------------------------------------------------------
Level B takes Max percent
Species Abundance \1\ population
----------------------------------------------------------------------------------------------------------------
Low-Frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Fin whale....................................................... 6,802 9 0.13
Sei whale....................................................... 6,292 0 (1) 0.02
Minke whale..................................................... 21,968 3 0.01
Humpback whale.................................................. 1,393 4 0.29
North Atlantic right whale...................................... 412 14 3.40
----------------------------------------------------------------------------------------------------------------
Mid-Frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Sperm whale \3\................................................. 4,349 0 (3) 0.07
Atlantic white-sided dolphin.................................... 93,233 15 0.00
Atlantic spotted dolphin........................................ 39,921 9 0.00
Common bottlenose dolphin: \2\
Offshore Stock.............................................. 62,851 437 0.21
Migratory Stock............................................. 6,639 1,192 7.77
Pilot Whales \3\
Short-finned pilot whale.................................... 28,924 3 (10) 0.03
Long-finned pilot whale..................................... 39,215 3 (10) 0.03
Risso's dolphin................................................. 35,493 0 (30) 0.08
Common dolphin.................................................. 172,974 112 0.06
----------------------------------------------------------------------------------------------------------------
High-Frequency Cetaceans
----------------------------------------------------------------------------------------------------------------
Harbor porpoise................................................. 95,543 98 0.03
----------------------------------------------------------------------------------------------------------------
Pinnipeds
----------------------------------------------------------------------------------------------------------------
Seals: \4\
Gray seal................................................... 451,431 9 0.00
Harbor seal................................................. 75,834 9 0.01
----------------------------------------------------------------------------------------------------------------
\1\ Parenthesis denote changes from calculated take estimates. Increases from calculated values are based on
assumed average group size for the species; sei whale, Kenney and Vigness-Raposa, 2010; sperm whale and
Risso's dolphin, Barkaszi and Kelly, 2018.
\2\ Roberts et al. (2016) does not provide density estimates for individual stocks of common bottlenose
dolphins; therefore, stock densities were delineated using the 20-m isobath.
\3\ Roberts (2018) only provides density estimates for ``generic'' pilot whales; therefore, an equal potential
for takes has been assumed either for each species.
\4\ Roberts (2018) only provides density estimates for ``generic'' seals; therefore, densities were split evenly
between the two species.
The take numbers shown in Table 4 are those requested by Garden
State, with the exception of the two pilot whale species. Garden State
requested 3 takes by Level B harassment for each pilot whale species
(i.e., short-finned and long-finned pilot whales). However, the
requested number of takes is below the mean group size for each of
these species; therefore, NMFS increased to 10 (from 3, proposed by
Garden State) the number of takes by Level B harassment for each of
these species, based on published mean group sizes (Kenney and Vigness-
Raposa, 2010). For all other species, NMFS concurs with the take
numbers requested by Garden State and has authorized them.
Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, NMFS
carefully considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations.
Mitigation for Marine Mammals and Their Habitat
NMFS has prescribed the following mitigation measures to be
implemented during Garden State's marine site characterization surveys.
Marine Mammal Exclusion Zones
Marine mammal EZs must be established around the HRG survey
equipment and monitored by PSOs:
<bullet> 500 m EZ for North Atlantic right whales during use of all
acoustic sources; and
[[Page 33677]]
<bullet> 100 m EZ for all marine mammals, with certain exceptions
specified below, during operation of impulsive acoustic sources (boomer
and/or sparker).
If a marine mammal is detected approaching or entering the EZs
during the HRG survey, the vessel operator must adhere to the shutdown
procedures described below to minimize noise impacts on the animals.
These stated requirements will be included in the site-specific
training to be provided to the survey team.
Pre-Start Clearance of the Exclusion Zones
Garden State must implement a 30-minute pre-start clearance period
of the EZs prior to the initiation of ramp-up of HRG equipment. During
this period, the EZ will be monitored by the PSOs, using the
appropriate visual technology. Ramp-up may not be initiated if any
marine mammal(s) is within its respective EZ. If a marine mammal is
observed within an EZ during the pre-start clearance period, ramp-up
may not begin until the animal(s) has been observed exiting its
respective EZ or until an additional time period has elapsed with no
further sighting (i.e., 15 minutes for small odontocetes and seals, and
30 minutes for all other species).
Ramp-Up of Survey Equipment
When technically feasible, a ramp-up procedure must be used for HRG
survey equipment capable of adjusting energy levels at the start or
restart of survey activities. The ramp-up procedure must be used at the
beginning of HRG survey activities in order to provide additional
protection to marine mammals near the survey area by allowing them to
vacate the area prior to the commencement of survey equipment operation
at full power.
A ramp-up must begin with the powering up of the smallest acoustic
HRG equipment at its lowest practical power output appropriate for the
survey. When technically feasible, the power will then be gradually
turned up and other acoustic sources would be added.
Ramp-up activities will be delayed if a marine mammal(s) enters its
respective exclusion zone. Ramp-up will continue if the animal has been
observed exiting its respective exclusion zone or until an additional
time period has elapsed with no further sighting (i.e., 15 minutes for
small odontocetes and seals and 30 minutes for all other species).
Activation of survey equipment through ramp-up procedures may not
occur when visual observation of the pre-start clearance zone is not
expected to be effective (i.e., during inclement conditions such as
heavy rain or fog).
Shutdown Procedures
An immediate shutdown of the impulsive HRG survey equipment will be
required if a marine mammal is sighted entering or within its
respective exclusion zone. The vessel operator must comply immediately
with any call for shutdown by the Lead PSO. Any disagreement between
the Lead PSO and vessel operator should be discussed only after
shutdown has occurred. Subsequent restart of the survey equipment can
be initiated if the animal has been observed exiting its respective
exclusion zone or until an additional time period has elapsed (i.e., 30
minutes for all other species).
If a species for which authorization has not been granted, or, a
species for which authorization has been granted but the authorized
number of takes have been met, approaches or is observed within the
Level B harassment zone (36 m, non-impulsive; 141 m impulsive),
shutdown must occur.
If the acoustic source is shut down for reasons other than
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it
may be activated again without ramp-up if PSOs have maintained constant
observation and no detections of any marine mammal have occurred within
the respective EZs. If the acoustic source is shut down for a period
longer than 30 minutes and PSOs have maintained constant observation,
then pre-start clearance and ramp-up procedures will be initiated as
described in the previous section.
The shutdown requirement will be waived for small delphinids of the
following genera: Delphinus, Lagenorhynchus, Stenella, and Tursiops and
seals. Specifically, if a delphinid from the specified genera or a
pinniped is visually detected approaching the vessel (i.e., to bow
ride) or towed equipment, shutdown is not required. Furthermore, if
there is uncertainty regarding identification of a marine mammal
species (i.e., whether the observed marine mammal(s) belongs to one of
the delphinid genera for which shutdown is waived), PSOs must use best
professional judgement in making the decision to call for a shutdown.
Additionally, shutdown is required if a delphinid or pinniped detected
in the exclusion zone and belongs to a genus other than those
specified.
Vessel Strike Avoidance
Garden State will ensure that vessel operators and crew maintain a
vigilant watch for cetaceans and pinnipeds and slow down or stop their
vessels to avoid striking these species. Survey vessel crew members
responsible for navigation duties will receive site-specific training
on marine mammals sighting/reporting and vessel strike avoidance
measures. Vessel strike avoidance measures must include the following,
except under circumstances when complying with these requirements would
put the safety of the vessel or crew at risk:
<bullet> Vessel operators and crews must maintain a vigilant watch
for all protected species and slow down, stop their vessel, or alter
course, as appropriate and regardless of vessel size, to avoid striking
any protected species. A visual observer aboard the vessel must monitor
a vessel strike avoidance zone based on the appropriate separation
distance around the vessel (distances stated below). Visual observers
monitoring the vessel strike avoidance zone may be third-party
observers (i.e., PSOs) or crew members, but crew members responsible
for these duties must be provided sufficient training to (1)
distinguish protected species from other phenomena and (2) broadly to
identify a marine mammal as a right whale, other whale (defined in this
context as sperm whales or baleen whales other than right whales), or
other marine mammal;
<bullet> All vessels, regardless of size, must observe a 10-knot
speed restriction in specific areas designated by NMFS for the
protection of North Atlantic right whales from vessel strikes including
SMAs and DMAs when in effect;
<bullet> All vessels greater than or equal to 19.8 m in overall
length operating from November 1 through April 30 will operate at
speeds of 10 knots or less while transiting to and from Project Area;
<bullet> All vessels must reduce their speed to 10 knots or less
when mother/calf pairs, pods, or large assemblages of cetaceans are
observed near a vessel;
<bullet> All vessels must maintain a minimum separation distance of
500 m from right whales. If a whale is observed but cannot be confirmed
as a species other than a right whale, the vessel operator must assume
that it is a right whale and take appropriate action;
<bullet> All vessels must maintain a minimum separation distance of
100 m from sperm whales and all other baleen whales;
<bullet> All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50 m from all
other marine mammals, with an understanding that at times this may not
be possible (e.g., for animals that approach the vessel);
[[Page 33678]]
<bullet> When marine mammals are sighted while a vessel is
underway, the vessel shall take action as necessary to avoid violating
the relevant separation distance (e.g., attempt to remain parallel to
the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area). If marine mammals are
sighted within the relevant separation distance, the vessel must reduce
speed and shift the engine to neutral, not engaging the engines until
animals are clear of the area. This does not apply to any vessel towing
gear or any vessel that is navigationally constrained;
<bullet> These requirements do not apply in any case where
compliance would create an imminent and serious threat to a person or
vessel or to the extent that a vessel is restricted in its ability to
maneuver and, because of the restriction, cannot comply.
Members of the monitoring team will consult NMFS North Atlantic
right whale reporting system and Whale Alert, as able, for the presence
of North Atlantic right whales throughout survey operations, and for
the establishment of a DMA. If NMFS should establish a DMA in the
Project Area during the survey, the vessels will abide by speed
restrictions in the DMA.
Project-specific training will be conducted for all vessel crew
prior to the start of a survey and during any changes in crew such that
all survey personnel are fully aware and understand the mitigation,
monitoring, and reporting requirements. Prior to implementation with
vessel crews, the training program will be provided to NMFS for review
and approval. Confirmation of the training and understanding of the
requirements will be documented on a training course log sheet. Signing
the log sheet will certify that the crew member understands and will
comply with the necessary requirements throughout the survey
activities.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, NMFS has determined that the
required mitigation measures provide the means of effecting the least
practicable impact on marine mammal species or stocks and their
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance.
Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
planned action area. Effective reporting is critical both to compliance
as well as ensuring that the most value is obtained from the required
monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
<bullet> Mitigation and monitoring effectiveness.
Monitoring Measures
Visual monitoring will be performed by qualified, NMFS-approved
PSOs, the resumes of whom will be provided to NMFS for review and
approval prior to the start of survey activities. Garden State would
employ independent, dedicated, trained PSOs, meaning that the PSOs must
(1) be employed by a third-party observer provider, (2) have no tasks
other than to conduct observational effort, collect data, and
communicate with and instruct relevant vessel crew with regard to the
presence of marine mammals and mitigation requirements (including brief
alerts regarding maritime hazards), and (3) have successfully completed
an approved PSO training course appropriate for their designated task
and/or have demonstrated experience in the role of an independent PSO
during an HRG survey. At least one PSO aboard each acoustic source
vessel must have a minimum of 90 days at-sea experience working as a
PSO during a geophysical survey, with no more than 18 months elapsed
since the conclusion of the at-sea experience. On a case-by-case basis,
non-independent observers may be approved by NMFS for limited, specific
duties in support of approved, independent PSOs on smaller vessels with
limited crew capacity operating in nearshore waters.
The PSOs will be responsible for monitoring the waters surrounding
each survey vessel to the farthest extent permitted by sighting
conditions, including EZs, during all HRG survey operations. PSOs will
visually monitor and identify marine mammals, including those
approaching or entering the established EZs during survey activities.
It will be the responsibility of the Lead PSO on duty to communicate
the presence of marine mammals as well as to communicate the action(s)
that are necessary to ensure mitigation and monitoring requirements are
implemented as appropriate.
During all HRG survey operations (e.g., any day on which use of an
HRG source is planned to occur), a minimum of one PSO must be on duty
during daylight operations on each survey vessel, conducting visual
observations at all times on all active survey vessels during daylight
hours (i.e., from 30 minutes prior to sunrise through 30 minutes
following sunset). Two PSOs will be on watch during nighttime
operations. The PSO(s) would ensure 360[deg] visual coverage around the
vessel from the most appropriate observation posts and would conduct
visual observations using binoculars and/or night vision goggles and
the naked eye while free from distractions and in a consistent,
systematic, and diligent manner. PSOs may be on watch for a maximum of
4 consecutive hours followed by a break of at least two hours between
watches and may conduct a maximum of 12 hours of observation per 24-
hour period. In cases where multiple vessels are surveying
concurrently, any observations of marine mammals would be communicated
to PSOs on all nearby survey vessels.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
[[Page 33679]]
proximity to EZs. Reticulated binoculars must also be available to PSOs
for use as appropriate based on conditions and visibility to support
the sighting and monitoring of marine mammals. During nighttime
operations, night-vision goggles with thermal clip-ons and infrared/
thermal imaging technology would be used to facilitate detection of
marine mammals approaching and within the EZs during pre-start
clearance and active survey operations. Position data would be recorded
using hand-held or vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state
(BSS) 3 or less), to the maximum extent practicable, PSOs would also
conduct observations when the acoustic source is not operating for
comparison of sighting rates and behavior with and without use of the
active acoustic sources. Any observations of marine mammals by crew
members aboard any vessel associated with the survey would be relayed
to the PSO team. Data on all PSO observations would be recorded based
on standard PSO collection requirements. This would include dates,
times, and locations of survey operations; dates and times of
observations, location and weather; details of marine mammal sightings
(e.g., species, numbers, behavior); and details of any observed marine
mammal behavior that occurs (e.g., noted behavioral disturbances).
Reporting Measures
Within 90 days after completion of survey activities or expiration
of this IHA, whichever comes sooner, a final technical report will be
provided to NMFS that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring, summarizes
the number of marine mammals observed during survey activities (by
species, when known), summarizes the mitigation actions taken during
surveys (including what type of mitigation and the species and number
of animals that prompted the mitigation action, when known), and
provides an interpretation of the results and effectiveness of all
mitigation and monitoring. Any recommendations made by NMFS must be
addressed in the final report prior to acceptance by NMFS. All draft
and final marine mammal and acoustic monitoring reports must be
submitted to <a href="/cdn-cgi/l/email-protection#5f0f0d71160b0f71123031362b302d3631380d3a2f302d2b2c1f31303e3e71383029"><span class="__cf_email__" data-cfemail="5101037f1805017f1c3e3f38253e23383f360334213e232522113f3e30307f363e27">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#a6eff2f688e3d5c5cee6c8c9c7c788c1c9d0"><span class="__cf_email__" data-cfemail="6f263b3f412a1c0c072f01000e0e41080019">[email protected]</span></a>.
The report must contain at minimum, the following:
<bullet> PSO names and affiliations;
<bullet> Dates of departures and returns to port with port name;
<bullet> Dates and times (Greenwich Mean Time) of survey effort and
times corresponding with PSO effort;
<bullet> Vessel location (latitude/longitude) when survey effort
begins and ends, vessel location at beginning and end of visual PSO
duty shifts;
<bullet> Vessel heading and speed at beginning and end of visual
PSO duty shifts and upon any line change;
<bullet> Environmental conditions while on visual survey (at
beginning and end of PSO shift and whenever conditions change
significantly), including wind speed and direction, Beaufort sea state,
Beaufort wind force, swell height, weather conditions, cloud cover, sun
glare, and overall visibility to the horizon;
<bullet> Factors that may be contributing to impaired observations
during each PSO shift change or as needed as environmental conditions
change (e.g., vessel traffic, equipment malfunctions); and
<bullet> Survey activity information, such as type of survey
equipment in operation, acoustic source power output while in
operation, and any other notes of significance (i.e., pre-start
clearance survey, ramp-up, shutdown, end of operations, etc.).
If a marine mammal is sighted, the following information should be
recorded:
<bullet> Watch status (sighting made by PSO on/off effort,
opportunistic, crew, alternate vessel/platform);
<bullet> PSO who sighted the animal;
<bullet> Time of sighting;
<bullet> Vessel location at time of sighting;
<bullet> Water depth;
<bullet> Direction of vessel's travel (compass direction);
<bullet> Direction of animal's travel relative to the vessel;
<bullet> Pace of the animal;
<bullet> Estimated distance to the animal and its heading relative
to vessel at initial sighting;
<bullet> Identification of the animal (e.g., genus/species, lowest
possible taxonomic level, or unidentified); also note the composition
of the group if there is a mix of species;
<bullet> Estimated number of animals (high/low/best);
<bullet> Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
<bullet> Description (as many distinguishing features as possible
of each individual seen, including length, shape, color, pattern, scars
or markings, shape and size of dorsal fin, shape of head, and blow
characteristics);
<bullet> Detailed behavior observations (e.g., number of blows,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior);
<bullet> Animal's closest point of approach and/or closest distance
from the center point of the acoustic source;
<bullet> Platform activity at time of sighting (e.g., deploying,
recovering, testing, data acquisition, other); and
<bullet> Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration,
etc.) and time and location of the action.
If a North Atlantic right whale is observed at any time by PSOs or
personnel on any project vessels, during surveys or during vessel
transit, Garden State must immediately report sighting information to
the NMFS North Atlantic Right Whale Sighting Advisory System: (866)
755-6622. North Atlantic right whale sightings in any location may also
be reported to the U.S. Coast Guard via channel 16.
In the event that Garden State personnel discover an injured or
dead marine mammal, Garden State will report the incident to the NMFS
Office of Protected Resources (OPR) and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report would
include the following information:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition if
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.
In the unanticipated event of a ship strike of a marine mammal by
any vessel involved in the activities covered by the IHA, Garden State
must report the incident to the NMFS OPR and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report would
include the following information:
<bullet> Time, date, and location (latitude/longitude) of the
incident;
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Vessel's speed during and leading up to the incident;
<bullet> Vessel's course/heading and what operations were being
conducted (if applicable);
<bullet> Status of all sound sources in use;
[[Page 33680]]
<bullet> Description of avoidance measures/requirements that were
in place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
<bullet> Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
<bullet> Estimated size and length of animal that was struck;
<bullet> Description of the behavior of the marine mammal
immediately preceding and following the strike;
<bullet> If available, description of the presence and behavior of
any other marine mammals immediately preceding the strike;
<bullet> Estimated fate of the animal (e.g., dead, injured but
alive, injured and moving, blood or tissue observed in the water,
status unknown, disappeared); and
<bullet> To the extent practicable, photographs or video footage of
the animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any responses (e.g., intensity, duration), the context
of any responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of the mitigation. NMFS also assesses the number, intensity, and
context of estimated takes by evaluating this information relative to
population status. Consistent with the 1989 preamble for NMFS'
implementing regulations (54 FR 40338; September 29, 1989), the impacts
from other past and ongoing anthropogenic activities are incorporated
into this analysis via their impacts on the environmental baseline
(e.g., as reflected in the regulatory status of the species, population
size and growth rate where known, ongoing sources of human-caused
mortality, or ambient noise levels).
To avoid repetition, our analysis applies to all the species listed
in Table 4, given that NMFS expects the anticipated effects of the
planned survey to be similar in nature. Where there are meaningful
differences between species or stocks--as is the case of the North
Atlantic right whale--they are included as separate subsections below.
NMFS does not anticipate that serious injury or mortality would occur
as a result from HRG surveys, even in the absence of mitigation, and no
serious injury or mortality is anticipated or authorized. As discussed
in the Potential Effects of Specified Activities on Marine Mammals and
their Habitat section of the notice of the proposed IHA (86 FR 22160;
April 27, 2021), non-auditory physical effects and vessel strike are
not expected to occur. NMFS expects that all potential takes would be
in the form of short-term Level B behavioral harassment in the form of
temporary avoidance of the area or decreased foraging (if such activity
was occurring), reactions that are considered to be of low severity and
with no lasting biological consequences (e.g., Southall et al., 2007).
Even repeated Level B harassment of some small subset of an overall
stock is unlikely to result in any significant realized decrease in
viability for the affected individuals, and thus would not result in
any adverse impact to the stock as a whole. As described above, Level A
harassment is not expected to occur given the nature of the operations
and the estimated small size of the Level A harassment zones.
In addition to being temporary, the maximum expected harassment
zone around a survey vessel is 141 m. Therefore, the ensonified area
surrounding each vessel is relatively small compared to the overall
distribution of the animals in the area and their use of the habitat.
Feeding behavior is not likely to be significantly impacted as prey
species are mobile and are broadly distributed throughout the survey
area; therefore, marine mammals that may be temporarily displaced
during survey activities are expected to be able to resume foraging
once they have moved away from areas with disturbing levels of
underwater noise. Because of the temporary nature of the disturbance
and the availability of similar habitat and resources in the
surrounding area, the impacts to marine mammals and the food sources
that they utilize are not expected to cause significant or long-term
consequences for individual marine mammals or their populations.
There are no rookeries, mating or calving grounds known to be
biologically important to marine mammals within the survey area and
there are no feeding areas known to be biologically important to marine
mammals within the survey area. There is no designated critical habitat
for any ESA-listed marine mammals in the survey area.
North Atlantic Right Whales
The status of the North Atlantic right whale population is of
heightened concern and, therefore, merits additional analysis. As
discussed in the notice of the proposed IHA (86 FR 22160; April 27,
2021), elevated North Atlantic right whale mortalities began in June
2017 and there is an active UME. Overall, preliminary findings support
human interactions, specifically vessel strikes and entanglements, as
the cause of death for the majority of right whales. As noted
previously, the survey area overlaps a migratory corridor Biologically
Important Area (BIA) for North Atlantic right whales. Due to the fact
that that the survey activities are temporary and the spatial extent of
sound produced by the survey would be very small relative to the
spatial extent of the available migratory habitat in the BIA, right
whale migration is not expected to be impacted by the survey. Given the
relatively small size of the ensonified area, it is unlikely that prey
availability would be adversely affected by HRG survey operations.
Required vessel strike avoidance measures will also decrease risk of
ship strike during migration; no ship strike is expected to occur
during Garden State's planned activities. Additionally, only very
limited take by Level B harassment of North Atlantic right whales has
been requested and is being authorized by NMFS as HRG survey operations
are required to maintain a 500 m EZ and shutdown if a North Atlantic
right whale is sighted at or within the EZ. The 500 m shutdown zone for
right whales is conservative, considering the Level B harassment
isopleth for the most impactful acoustic source (i.e., GeoMarine Geo-
Source 400 tip sparker) is estimated to be 141 m, and thereby minimizes
the potential for behavioral harassment of this species. As noted
previously, Level A harassment is not expected due to the small Level A
harassment zones associated with HRG equipment types planned for use.
NMFS does not anticipate that North Atlantic right whales takes
resulting from Garden State's activities would impact annual rates of
recruitment or survival. Thus, any takes that occur would not result in
population level impacts.
[[Page 33681]]
Other Marine Mammal Species With Active UMEs
As discussed in the notice of the proposed IHA (86 FR 22160; April
27, 2021), there are several active UMEs occurring in the vicinity of
Garden State's survey area. Elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine through Florida since
January 2016. Of the cases examined, approximately half had evidence of
human interaction (ship strike or entanglement). The UME does not yet
provide cause for concern regarding population-level impacts. Despite
the UME, the relevant population of humpback whales (the West Indies
breeding population, or DPS) remains stable at approximately 12,000
individuals.
Beginning in January 2017, elevated minke whale strandings have
occurred along the Atlantic coast from Maine through South Carolina,
with highest numbers in Massachusetts, Maine, and New York. This event
does not provide cause for concern regarding population level impacts,
as the likely population abundance is greater than 20,000 whales.
Elevated numbers of harbor seal and gray seal mortalities were
first observed in July 2018 and have occurred across Maine, New
Hampshire, and Massachusetts. Based on tests conducted so far, the main
pathogen found in the seals is phocine distemper virus, although
additional testing to identify other factors that may be involved in
this UME are underway. The UME does not yet provide cause for concern
regarding population-level impacts to any of these stocks. For harbor
seals, the population abundance is over 75,000 and annual mortality/
serious injury (M/SI; 350) is well below PBR (2,006) (Hayes et al.,
2020). The population abundance for gray seals in the United States is
over 27,000, with an estimated abundance, including seals in Canada, of
approximately 450,000. In addition, the abundance of gray seals is
likely increasing in the U.S. Atlantic exclusive economic zone as well
as in Canada (Hayes et al., 2020).
The required mitigation measures are expected to reduce the number
and/or severity of takes for all species listed in Table 4, including
those with active UMEs to the level of least practicable adverse
impact. In particular they would provide animals the opportunity to
move away from the sound source throughout the survey area before HRG
survey equipment reaches full energy, thus preventing them from being
exposed to sound levels that have the potential to cause injury (Level
A harassment) or more severe Level B harassment. No Level A harassment
is anticipated, even in the absence of mitigation measures, or
authorized.
NMFS expects that takes would be in the form of short-term Level B
behavioral harassment by way of brief startling reactions and/or
temporary vacating of the area, or decreased foraging (if such activity
was occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals would only be exposed briefly to a small ensonified area that
might result in take. Additionally, required mitigation measures would
further reduce exposure to sound that could result in more severe
behavioral harassment.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect the species or stock through
effects on annual rates of recruitment or survival:
<bullet> No mortality or serious injury is anticipated or
authorized;
<bullet> No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, or authorized;
<bullet> Foraging success is not likely to be significantly
impacted as effects on species that serve as prey species for marine
mammals from the survey are expected to be minimal;
<bullet> The availability of alternate areas of similar habitat
value for marine mammals to temporarily vacate the survey area during
the planned survey to avoid exposure to sounds from the activity;
<bullet> Take is anticipated to be primarily Level B behavioral
harassment consisting of brief startling reactions and/or temporary
avoidance of the survey area;
<bullet> While the survey area is within areas noted as a migratory
BIA for North Atlantic right whales, the activities will occur in such
a comparatively small area such that any avoidance of the survey area
due to activities would not affect migration. In addition, mitigation
measures to shutdown at 500 m to minimize potential for Level B
behavioral harassment would limit any take of the species; and
<bullet> The required mitigation measures, including visual
monitoring and shutdowns, are expected to minimize potential impacts to
marine mammals.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the
activity will have a negligible impact on all affected marine mammal
species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is less than one third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
NMFS has authorized incidental take of 16 marine mammal species
(with 17 managed stocks.) The total amount of takes authorized relative
to the best available population abundance is less than 8 percent for
one stock (bottlenose dolphin northern coastal migratory stock) and
less than 4 percent of all other species and stocks, which NMFS finds
are small numbers of marine mammals relative to the estimated overall
population abundances for those stocks (see Table 4).
Based on the analysis contained herein of the planned activity
(including the mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS finds that small numbers of marine mammals
will be taken relative to the population size of the affected species
or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
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,
[[Page 33682]]
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 whenever NMFS proposes to authorize take for endangered or
threatened species, in this case with NMFS Greater Atlantic Regional
Fisheries Office (GARFO).
The NMFS OPR is authorizing the incidental take of four species of
marine mammals which are listed under the ESA: North Atlantic right,
fin, sei, and sperm whales. The OPR requested initiation of Section 7
consultation with NMFS GARFO on April 19, 2021, for the issuance of the
IHA. On June 1, 2021, NMFS GARFO determined that issuance of the IHA to
Garden State is not likely to adversely affect the North Atlantic, fin,
sei, or sperm whale or result in take of any marine mammals that would
violate the ESA.
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 (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) 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 NMFS have not identified any extraordinary circumstances that
would preclude this categorical exclusion. Accordingly, NMFS has
determined that the issuance of the IHA qualifies to be categorically
excluded from further NEPA review.
Authorization
NMFS has issued an IHA to Garden State for the potential harassment
of small numbers of 16 marine mammal species (with 17 managed stocks)
incidental to conducting marine site characterization surveys offshore
of Delaware and New Jersey in the area of the Commercial Lease of
Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf (OCS-A 0482) and along potential export cable routes
to landfall locations in Delaware and New Jersey, provided the
previously mentioned mitigation, monitoring, and reporting requirements
are followed.
Dated: June 14, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2021-13530 Filed 6-24-21; 8:45 am]
BILLING CODE 3510-22-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.