Notice2021-15383
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Offshore of Massachusetts, Rhode Island, Connecticut, and New York
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Published
July 20, 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 a Renewal incidental harassment authorization (IHA) to Vineyard Wind, LLC (Vineyard Wind) to incidentally harass marine mammals incidental to marine site characterization survey activities off the coast of Massachusetts in the areas of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0501 and OCS-A 0522) and along potential submarine cable routes to landfall locations in Massachusetts, Rhode Island, Connecticut, and New York.
Full Text
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<title>Federal Register, Volume 86 Issue 136 (Tuesday, July 20, 2021)</title>
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[Federal Register Volume 86, Number 136 (Tuesday, July 20, 2021)]
[Notices]
[Pages 38296-38314]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-15383]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB217]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Offshore of Massachusetts, Rhode Island, Connecticut, and New
York
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
[[Page 38297]]
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of renewal 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 a Renewal incidental harassment authorization
(IHA) to Vineyard Wind, LLC (Vineyard Wind) to incidentally harass
marine mammals incidental to marine site characterization survey
activities off the coast of Massachusetts in the areas of the
Commercial Lease of Submerged Lands for Renewable Energy Development on
the Outer Continental Shelf (OCS-A 0501 and OCS-A 0522) and along
potential submarine cable routes to landfall locations in
Massachusetts, Rhode Island, Connecticut, and New York.
DATES: This Renewal IHA is valid from July 15, 2021 through June 20,
2022.
FOR FURTHER INFORMATION CONTACT: Reny Tyson Moore, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the original
application, renewal request, and supporting documents (including NMFS
Federal Register notices of the original proposed and final
authorizations, and the previous IHA), as well as a list of the
references cited in this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D)
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon request, the incidental, but not
intentional, taking of small numbers of marine mammals by U.S. citizens
who engage in a specified activity (other than commercial fishing)
within a specified geographical region if certain findings are made and
either regulations are proposed or, if the taking is limited to
harassment, a notice of a proposed incidental take authorization is
provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to here as ``mitigation
measures''). Monitoring and reporting of such takings are also
required. The meaning of key terms such as ``take,'' ``harassment,''
and ``negligible impact'' can be found in section 3 of the MMPA (16
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e)
indicate that IHAs may be renewed for additional periods of time not to
exceed one year for each reauthorization. In the notice of proposed IHA
for the initial authorization, NMFS described the circumstances under
which we would consider issuing a Renewal. Specifically, on a case-by-
case basis, NMFS may issue a one-time one-year Renewal IHA following
notice to the public providing an additional 15 days for public
comments when (1) up to another year of identical or nearly identical,
or nearly identical, activities as described in the Detailed
Description of Specified Activities section of the initial IHA issuance
notice is planned or (2) the activities as described in the Detailed
Description of Specified Activities section of the initial IHA issuance
notice would not be completed by the time the initial IHA expires and a
Renewal IHA would allow for completion of the activities beyond that
described in the Dates section of the initial IHA issuance, provided
all of the following conditions are met:
(1) A request for renewal is received no later than 60 days prior
to the needed Renewal IHA effective date (recognizing that the Renewal
IHA expiration date cannot extend beyond one year from expiration of
the initial IHA);
(2) The request for renewal must include the following:
<bullet> An explanation that the activities to be conducted under
the requested Renewal IHA are identical to the activities analyzed
under the initial IHA, are a subset of the activities, or include
changes so minor (e.g., reduction in pile size) that the changes do not
affect the previous analyses, mitigation and monitoring requirements,
or take estimates (with the exception of reducing the type or amount of
take); and
<bullet> A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized;
(3) Upon review of the request for renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
An additional public comment period of 15 days (for a total of 45
days), with direct notice by email, phone, or postal service to
commenters on the initial IHA, is provided to allow for any additional
comments on the proposed Renewal IHA. A description of the renewal
process may be found on our website at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>.
History of Request
On May 06, 2020, NMFS issued an IHA to Vineyard Wind to take marine
mammals incidental to marine site characterization survey activities
off the coast of Massachusetts in the areas of the Commercial Lease of
Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf (OCS-A 0501 and OCS-A 0522) and along potential
submarine cable routes to landfall locations in Massachusetts, Rhode
Island, Connecticut, and New York (85 FR 26940), effective from June
01, 2020 through May 31, 2021. This IHA was re-issued on July 14, 2020
with the only change being a change in effective dates from June 21,
2020 through June 20, 2021 (85 FR 42357). On March 25, 2021, NMFS
received an application for the Renewal IHA of the re-issued IHA. As
described in the application for renewal, the activities for which
incidental take is requested consist of activities that are covered by
the initial authorization but will not be completed prior to its
expiration. As required, the applicant also provided a preliminary
monitoring report (available at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>)
which confirms that the applicant has implemented the required
mitigation and monitoring, and which also shows that no impacts of a
scale or nature not previously analyzed or authorized have occurred as
a result of the activities conducted. The notice of the proposed
[[Page 38298]]
Renewal IHA was published on June 8, 2021 (86 FR 30442).
Description of the Specified Activities and Anticipated Impacts
Vineyard Wind plans to conduct marine site characterization
surveys, specifically high-resolution geophysical (HRG) surveys, in
support of offshore wind development projects in the areas of
Commercial Lease of Submerged Lands for Renewable Energy Development on
the Outer Continental Shelf (#OCS-A 0501 and #OCS-A 0522) (Lease Areas)
and along potential submarine cable routes to landfall locations in
Massachusetts, Rhode Island, Connecticut, and New York. The purpose of
the marine site characterization surveys is to obtain a baseline
assessment of seabed/sub-surface soil conditions in the Lease Areas and
cable route corridors to support the siting of potential future
offshore wind projects. Underwater sound resulting from Vineyard Wind's
planned marine site characterization surveys has the potential to
result in incidental take of 14 marine mammal species in the form of
Level B behavioral harassment. Vineyard Wind requested a renewal of the
initial IHA that was re-issued by NMFS in July 2020 on the basis that
the activities as described in the Specified Activities section of the
initial IHA would not be completed by the time the IHA expires and a
Renewal IHA would allow for completion of the activities beyond that
described in the Dates and Duration section of the initial IHA.
In their 2020 IHA application, Vineyard Wind estimated that it
would take a year to complete the marine site characterization surveys.
This schedule was based on 24-hour operations and included potential
down time due to inclement weather. With up to eight survey vessels
operating concurrently, a maximum of 736 vessel days were anticipated.
Each vessel would maintain a speed of approximately 3.5 knots (kn; 6.5
kilometers (km)/hour) while transiting survey lines and each vessel
would cover approximately 100 km per day. However, during the 2020-2021
survey season, Vineyard Wind completed only 184 vessel days of the 736
vessel days estimated to complete the work and only surveyed
approximately 25 percent of the planned survey routes. Vineyard Wind
predicts that a maximum of 552 vessel days, with up to 8 survey vessels
operating concurrently, over 181 days will be required to survey the
remaining routes, estimated to be approximately 55,200 km. This Renewal
IHA authorizes harassment of marine mammals for this remaining survey
distance using survey methods identical to those described in the
initial IHA application; therefore, the anticipated effects on marine
mammals and the affected stocks also remain the same. All active
acoustic sources and mitigation and monitoring measures remain as
described in the Federal Register notices of the proposed IHA (85 FR
7952, February 12, 2020) and issued IHA (85 FR 26940, May 06, 2020).
The amount of take requested for the Renewal IHA reflects the amount of
remaining work in consideration of marine mammal monitoring data from
the 2020 survey season resulting in equal or less take than that
authorized in the initial IHA. The surveys would be a subset of, but
otherwise identical to, those analyzed for the initial IHA.
Detailed Description of the Activity
A detailed description of the survey activities for which take is
authorized here may be found in the Federal Register notices of the
proposed IHA (85 FR 7952, February 12, 2020), issued IHA (85 FR 26940,
May 06, 2020), and reissued IHA (85 FR 42357, July 14, 2020) for the
initial authorization. Vineyard Wind was not able to complete the
survey activities analyzed in the initial IHA by the date the IHA
expired (June 20, 2021). As such, the surveys Vineyard Wind will
conduct under this Renewal IHA will be a continuation of the surveys as
described in the initial IHA. The location and nature of the
activities, including the types of equipment planned for use, are
identical to those described in the previous notices. Because part of
the work has already been completed, the duration of the surveys
conducted under the Renewal IHA will occur over less time than that
described for the initial IHA (181 days versus 365 days); however,
Vineyard Wind will continue to operate 24 hours per day to complete the
work. This Renewal IHA is effective from July 15, 2021 through June 20,
2022.
Description of Marine Mammals
A description of the marine mammals in the area of the activities
for which take is authorized here, including information on abundance,
status, distribution, and hearing, may be found in the Federal Register
notices of the proposed and final IHAs for the initial authorization
(85 FR 7952, February 12, 2020; 85 FR 26940, May 06, 2020) and the
proposed Renewal IHA (85 FR 30435, June 08, 2021). Upon receipt of
Vineyard Wind's renewal request, NMFS reviewed the monitoring data from
the initial IHA, recent draft Stock Assessment Reports, information on
relevant Unusual Mortality Events, and other scientific literature.
The draft 2020 Stock Assessment Report (SAR, available online at:
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports</a>) states that estimated abundance
has increased for the Western North Atlantic stock of common dolphins,
from 172,825 (CV=0.21) to 172,974 (CV=0.21), and decreased for the
following marine mammal stocks since the issuance of the initial IHA:
The Gulf of Maine stock of humpback whales (from 1,396 (CV=0) to 1,393
(CV=0.15)), the Western North Atlantic stock of fin whales (from 7,418
(CV=0.25) to 6,802 (CV=0.24)), and the Canadian East coast stock of
minke whales (from 24,202 (CV=0.3) to 21,968 (CV=0.31)). Abundance and
density estimates for the Western North Atlantic stock of North
Atlantic right whales have also been updated, and state that right
whale abundance has decreased from 428 to 368 (95% CI 356-378)
individuals (Pace 2021) and that densities have slightly increased in
the Project Area from 0.105 whales per 100 square kilometers (km\2\) to
0.169 whales per 100 km\2\ (Roberts et al. 2020; note that the updated
density estimate was not included in the Proposed Renewal). In
addition, Oleson et al. (2020) provides evidence that was not available
at time of the initial IHA that part of Vineyard Wind's Project Area
coincides directly with year-round core foraging habitat North Atlantic
right whales. NMFS discussed the importance of portions of the Project
Area as core habitat for North Atlantic right whales in the proposed
and final notices of the initial IHA, but did not include this
discussion, or reference to the visual and acoustic detections of North
Atlantic right whales indicating a nearly year-round presence discussed
by Oleson et al. (2020) in the Proposed Renewal.
An additional update related to species for which take is
authorized here that was not included in the proposed Renewal IHA, is
the change in status of the Gulf of Maine humpback whale stock from
non-strategic to strategic reported in the draft SAR. This change was
made because the detected mortality is estimated to be only 19 percent
of all mortalities, and the total estimated human-caused annual
mortality and serious injury is 51.5 animals compared to the Potential
Biological Removal (PBR) estimate of 22 animals.
NMFS has determined that neither the updated abundance and density
information presented above nor any
[[Page 38299]]
other new information, including the information regarding year-round
North Atlantic right whale core foraging habitat and the designation of
the Gulf of Maine humpback whale stock as strategic, affects which
species or stocks have the potential to be affected or the pertinent
information in the Description of the Marine Mammals in the Area of
Specified Activities contained in the supporting documents for the
initial IHA.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activity on
marine mammals and their habitat for the activities for which take is
authorized here may be found in the Federal Register notices of the
proposed and final IHAs for the initial authorization (85 FR 7952,
February 12, 2020; 85 FR 26940, May 06, 2020). NMFS has reviewed the
monitoring data from the initial IHA, recent draft Stock Assessment
Reports, Technical Reports (e.g., Oleson et al. 2020, Pace 2021),
information on relevant Unusual Mortality Events, other scientific
literature (e.g., Roberts et al. 2020), and the public comments. NMFS
does not expect that the generally short-term, intermittent, and
transitory HRG survey activities would impact the reproduction or
survival of any of the species and stocks that have the potential to be
affected by this authorization. Therefore, NMFS has determined that
neither the information mentioned above nor any other new information
affects our initial analysis of impacts on marine mammals and their
habitat.
Estimated Take
A detailed description of the methods and inputs used to estimate
take for the specified activity are found in the Federal Register
notices of the proposed and final IHAs for the initial authorization
(85 FR 7952, February 12, 2020; 85 FR 26940, May 06, 2020). The
acoustic source types, as well as source levels applicable to this
authorization remain unchanged from the initial IHA. Similarly, the
stocks taken, methods of take, and type of take (i.e., Level B
harassment only) remain unchanged from the initial IHA.
In the initial authorization for the marine site characterization
survey activities, the potential for take was estimated using the
following parameters: (1) Maximum number of survey days that could
occur over a 12-month period; (2) maximum distance each vessel could
travel per 24-hour period in each of the identified survey areas; (3)
maximum ensonified area (zone of influence (ZOI)); and (4) mean annual
densities for species in the area of specified activity. The calculated
radial distances to the Level B harassment threshold (160 decibel (dB)
root mean square (rms)) from a survey vessel are included in Table 1.
Table 1--Modeled Radial Distances From HRG Survey Equipment to Isopleths
Corresponding to Level B Harassment Thresholds
------------------------------------------------------------------------
------------------------------------------------------------------------
HRG survey equipment Level B harassment
horizontal impact
distance
(m)
------------------------------------------------------------------------
Shallow subbottom profilers..... EdgeTech Chirp 216 4
Deep seismic profilers.......... Applied Acoustics 178
AA251 Boomer.
Deep seismic profilers.......... GeoMarine Geo 195
Spark 2000 (400
tip).
------------------------------------------------------------------------
The equation for estimating take for all species remains the same
as the initial IHA:
Estimated Take = D x ZOI x # of days
Where: D = species density (per km\2\) and ZOI = maximum daily
ensonified area
As described in the Federal Register notices of the proposed and
final IHAs for the initial authorization (85 FR 7952, February 12,
2020; 85 FR 26940, May 06, 2020), Vineyard Wind calculated a
conservative ZOI by applying the maximum radial distance for any
category and type of HRG survey equipment considered in its assessment
to the mobile source ZOI calculation. Vineyard Wind estimates that
survey vessels will achieve a maximum daily track line distance of 100
km per day during proposed surveys. This distance accounts for the
vessel traveling at roughly 3.5 kn (6.5 km/hour) and accounts for non-
active survey periods. Based on the maximum estimated distance to the
Level B harassment threshold of 195 m (Table 1) and the maximum
estimated daily track line distance of 100 km, which are the same as
were used in the initial IHA, Vineyard Wind estimated that an area of
39.12 km\2\ will be ensonified to the Level B harassment threshold per
day during Vineyard Wind's survey activities. This is a conservative
estimate as it assumes the HRG sources that result in the greatest
isopleth distances to the Level B harassment threshold will be operated
at all times during all vessel days.
This methodology of calculating take in the initial IHA applies to
this issued Renewal IHA for all species, with the only difference being
the fewer amount of vessel days (i.e., 552 versus 736). The result is
that the amount of take is reduced proportionally to the reduction in
the number of days of work remaining. Vineyard Wind has requested a
deviation from the proportionally reduced calculated take for Risso's
dolphins as described below. Other than in the additional instances
described below, NMFS agrees with Vineyard Wind's request for take and
we have authorized the same amount of take as described in their
request.
In their application for a Renewal IHA, Vineyard Wind requested
that the number of Level B harassment takes (per the equation above)
for Risso's dolphins be equal to their average group size estimate (6
individuals), given a proportional reduction in take based on the
reduction in the number of days of work remaining would result in a
take estimate that is smaller than the average group size estimate. As
described in Vineyard Wind's preliminary monitoring report, they did
not observe any Risso's dolphins during the survey work thus far
completed. Therefore, we have authorized the same amount of take as
proposed in the initial IHA, which is based on an average group size of
6 Risso's dolphins (Table 2).
In the Federal Register notices of the proposed and final IHAs for
the initial authorization (85 FR 7952, February 12, 2020; 85 FR 26940,
May 06, 2020) NMFS limited takes by Level B harassment authorized for
North Atlantic right whales to 10 individuals, which was reduced from
an initially calculated take of 31 whales. There were several reasons
justifying this reduction.
[[Page 38300]]
Vineyard Wind established and monitored a shutdown zone at least 2.5
times (500-meters (m)) greater than the predicted Level B harassment
threshold distance (195 m). Take had also been conservatively
calculated based on the largest source, which will not be operating at
all times, and take is therefore likely over-estimated to some degree.
Furthermore, the potential for incidental take during daylight hours is
very low given that two Protected Species Observers (PSOs) are required
for monitoring (over the 500-m shutdown zone for North Atlantic right
whales, compared with the 195-m estimated Level B harassment zone).
Additionally, sightings of right whales had been uncommon during
previous marine site characterization surveys conducted near Vineyard
Wind's Project Area. For example, no North Atlantic right whales were
sighted during Bay State Wind surveys in adjacent and overlapping
survey areas over 376 vessel days between May 11, 2018 and March 14,
2019. Vineyard Wind also had no North Atlantic right whales sighted in
their marine mammal monitoring report that included Lease Areas OCS-A
0501 and OCS-A 0522 from May 31, 2019 through January 7, 2020.
Therefore, the aforementioned factors led NMFS to conclude that the
unadjusted modeled exposure estimate was likely a significant
overestimate of actual potential exposure. Accordingly, in the initial
IHA NMFS made a reasonable adjustment to conservatively account for
these expected mitigating effects from the required mitigation measures
on actual taking of right whales.
During the 2020-2021 surveys, Vineyard Wind reported four sightings
of North Atlantic right whales (seven individuals) in their preliminary
monitoring report. While all of these individuals were observed on a
single day (December 20, 2020) and outside both the estimated 195-m
Level B harassment Zone and the 500 m Exclusion Zone (EZ) for North
Atlantic right whales (closest approaches were > 900 m), they represent
an increased amount of sightings observed during marine site
characterization surveys, though the information suggests that there
were no takes.
Roberts et al. (2020) provided updated monthly densities of North
Atlantic right whales in the area of proposed activities since the time
of the initial IHA. These updated data for North Atlantic right whale
densities incorporate additional sighting data and include increased
spatial resolution. We reviewed the updated model documentation and
recalculated the North Atlantic right whale density estimates following
the same methods outlined in the proposed and final IHAs for the
initial authorization (85 FR 7952, February 12, 2020; 85 FR 26940, May
06, 2020). The new model results state that the mean annual North
Atlantic right whale densities have slightly increased in the activity
area from 0.105 whales per 100 square kilometers (km\2\) to 0.169
whales per 100 km\2\. Despite the increase in sightings and densities
of North Atlantic right whales in the survey area, we believe that an
updated unadjusted modeled exposure estimate of 36 individuals based on
these slightly increased densities would still represent a significant
overestimate of the actual potential exposure, and therefore authorize
the same amount of take (10 individuals) for this Renewal IHA as was
authorized in the initial IHA, which accounts for the expected
mitigating effects from the required mitigation measures on the actual
taking of right whales.
As documented in Vineyard Wind's preliminary monitoring report,
there were a number of sightings of delphinids both within the
estimated 195 m Level B Harassment Zone and the 100 m EZ that were
characterized by the PSOs as `voluntary approaches.' A ``voluntary
approach'' is defined as a purposeful approach toward the vessel by the
delphinid(s) with a speed and vector that indicates that the
delphinid(s) is approaching the vessels and remains near the vessel or
towed equipment (BOEM 2014). Vineyard Wind PSOs reported 270 sightings
of approximately 3,332 individual common dolphins within the estimated
195 m Level B harassment zone (note that these observations did not all
occur during actual use of the source for which this zone is estimated,
and that the actual zone at the time of observation would have been
smaller). Given that Vineyard Wind observed more common dolphins than
expected, we authorize the same amount of take (2,036 individuals) as
authorized in the initial IHA, as opposed to decreasing it commensurate
to the reduced amount of activity remaining. Thus, take numbers
authorized in this Renewal IHA (Table 2) represent prorated estimates
for all species except North Atlantic right whales, Risso's dolphins,
and common dolphins whose authorized take estimates remain the same as
authorized in the initial IHA.
On August 20, 2020 Vineyard Wind PSOs observed two white-beaked
dolphins within the 195 m Level B harassment zone for the sparker
during the first year of Vineyard Wind's survey activities. White-
beaked dolphins were considered unlikely to be encountered in the
survey area and, therefore, take was not considered reasonably likely
to occur and was not authorized in the initial IHA. This species has
historically been found in waters outside of the survey area, from
southern New England to southern Greenland and Davis Straits
(Leatherwood et al. 1976, CETAP 1982, Hayes et al. 2019), across the
Atlantic to the Barents Sea and south to at least Portugal (Reeves et
al. 1999). In waters off the northeastern U.S. coast, white-beaked
dolphin sightings are typically concentrated in the western Gulf of
Maine and around Cape Cod (CETAP 1982, Hayes et al. 2019). The dolphins
observed during the 2020-2021 surveys were first sighted as
unidentified dolphins due to the decreased visibility under sea state 3
conditions, creating challenges in identification. Given the dolphins
were of genera Delphinus, Lagenorhynchus, or Tursiops, and in
accordance with IHA condition 4(f)(vii), the PSO used their best
professional judgment in determining that the animals were exempted
from the shutdown requirement. After less than a minute of bow riding
the dolphins began swimming away and at the end of the sighting the PSO
was able to make a positive ID. The PSO determined the animal was
leaving the zone and therefore no mitigation was required. The PSO
determined that there was no behavioral change or signs of distress and
thus Vineyard Wind did not report the sighting as a potentially
unauthorized Level B harassment take. Despite this single observation
of white beaked dolphins, encounters with the species in the survey
area remain unlikely. For example, no sightings of white beaked
dolphins have been reported in monitoring reports from other IHAs
issued in the same region in recent years. Therefore, NMFS has
determined that the initial determination that take of the species is
not reasonably likely to occur and, therefore, that take authorization
for the species is not warranted. We have clarified with Vineyard Wind
the need to communicate any sightings of rare species to NMFS as soon
as possible.
[[Page 38301]]
Table 2--Initial IHA Take Authorized and Renewal IHA Take Authorized
----------------------------------------------------------------------------------------------------------------
Level B harassment
-------------------------------------- Percent
Species Take authorized Take authorized population \1\
initial IHA renewal IHA
----------------------------------------------------------------------------------------------------------------
Fin whale................................................. 67 51 1.1
Humpback whale............................................ 46 34 2.1
Minke whale............................................... 41 31 1.5
North Atlantic right whale................................ 10 10 2.7
Sei whale................................................. 4 3 0.4
Atlantic white sided dolphin.............................. 1,011 758 2.0
Bottlenose dolphin (WNA Offshore)......................... 815 611 1.0
Long-finned pilot whales.................................. 142 107 0.6
Risso's dolphin........................................... 6 6 0.08
Common dolphin............................................ 2,036 2,036 2.3
Sperm whale............................................... 4 3 0.06
Harbor porpoise........................................... 1,045 784 1.7
Gray seal................................................. 4,044 3,033 11.17
Harbor seal............................................... 4,044 3,033 4.0
----------------------------------------------------------------------------------------------------------------
\1\ Calculations of percentage of stock taken are based on the best available abundance estimate as shown in
Table 2 in the notice of the final IHA for the initial authorization (85 FR 26940, May 06, 2020). In most
cases the best available abundance estimate is provided by Roberts et al. (2016, 2017, 2018), when available,
to maintain consistency with density estimates derived from Roberts et al. (2016, 2017, 2018). For North
Atlantic right whales the best available abundance estimate is derived from the 2021 NOAA Technical Memorandum
NMFS-NE-269 Revisions and Further Evaluations of the Right Whale Abundance Model: Improvements for Hypothesis
Testing (Pace, 2021). For bottlenose dolphins and seals, Roberts et al. (2016, 2017, 2018) provides only a
single abundance estimate and does not provide abundance estimates at the stock or species level
(respectively), so abundance estimates used to estimate percentage of stock taken for bottlenose dolphins,
gray and harbor seals are derived from NMFS SARs (available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports</a>).
Description of Mitigation, Monitoring and Reporting Measures
The mitigation, monitoring, and reporting measures included as
requirements in this authorization are identical to those included in
the Federal Register notice announcing the issuance of the initial IHA
(85 FR 26940, May 06, 2020), and the discussion of the least
practicable adverse impact included in that document and the notice of
the proposed IHA remains accurate (85 FR 7952, February 12, 2020; 85 FR
26940, May 06, 2020). All mitigation, monitoring and reporting measures
in the initial IHA are carried over to this Renewal IHA and summarized
here:
<bullet> EZ: Marine mammal EZs will be established around the HRG
survey equipment and monitored by PSO during HRG surveys as follows: A
500-m EZ is required for North Atlantic right whales and a 100-m EZ is
required for all other marine mammals (with the exception of certain
genera of small delphinids (i.e., Delphinus, Lagenorhynchus, and
Tursiops) under certain circumstances, such as individuals voluntary
approaching the vessel). If a marine mammal is detected approaching or
entering the EZs during the planned survey, the vessel operator would
adhere to the shutdown procedures described below. In addition to the
EZs described above, PSOs would visually monitor a 200-m Buffer Zone;
however, this Buffer Zone is not applicable when the EZ is greater than
100 m. PSOs would also be required to observe a 500-m Monitoring Zone
and record the presence of all marine mammals within this zone and
within the Level B harassment zone. The zones described above would be
based upon the radial distance from the active equipment (rather than
being based on distance from the vessel itself).
<bullet> PSO: A minimum of two NMFS-approved PSOs must be on duty
and conducting visual observations at all times on all active survey
vessels when HRG equipment is operating, including both daytime and
nighttime operations. Visual monitoring would begin no less than 30
minutes prior to initiation of HRG survey equipment and would continue
until 30 minutes after use of the acoustic source ceases or until 30
minutes past sunset. However, Vineyard Wind has committed to 24-hr use
of PSOs. PSOs would establish and monitor the applicable EZs, Buffer
Zone and Monitoring Zone as described above.
<bullet> Pre-Operation Clearance Protocols: Prior to initiating HRG
survey activities, Vineyard Wind would implement a 30-minute pre-
clearance period. Ramp-up of the survey equipment would not begin until
the relevant zones (500-m EZ for North Atlantic right whales and 200-m
Buffer Zone for all other species) have been cleared by the PSOs. If
any marine mammals are detected within the relevant EZs or Buffer Zone
during the pre-clearance period, initiation of HRG survey equipment
would not begin until the animal(s) has been observed exiting the
respective EZ or Buffer Zone, or, until an additional time period has
elapsed with no further sighting (i.e., minimum 15 minutes for small
odontocetes and seals, and 30 minutes for all other species). The pre-
clearance requirement would include small delphinids that approach the
vessel (e.g., bow ride). PSOs would also continue to monitor the zone
for 30 minutes after survey equipment is shut down or survey activity
has concluded.
<bullet> Ramp-up: A ramp-up procedure would be used for geophysical
survey equipment capable of adjusting energy levels at the start or re-
start of survey activities. Ramp-up of the survey equipment would not
begin until the relevant EZs and Buffer Zone has been cleared by the
PSOs, as described above. HRG equipment would be initiated at their
lowest power output and would be incrementally increased to full power.
If any marine mammals are detected within the EZs or Buffer Zone prior
to or during ramp-up, the HRG equipment would be shut down (as
described below).
<bullet> Shutdown of HRG Equipment: If an HRG source is active and
a marine mammal is observed within or entering a relevant EZ (as
described above) an immediate shutdown of the HRG survey equipment
would be required. Note this shutdown requirement would be waived for
certain genera of small delphinids as described above. Subsequent
restart of the HRG equipment would only occur after the marine mammal
has either been observed exiting the relevant EZ,
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or, until an additional time period has elapsed with no further
sighting of the animal within the relevant EZ (i.e., 15 minutes for
small odontocetes and seals, and 30 minutes for all other species).
<bullet> Vessel strike avoidance measures: Separation distances for
large whales (500 m North Atlantic Right Whales, 100 m other large
whales; 50 m other cetaceans and pinnipeds), restricted vessel speeds
including a requirement that all vessel operators comply with 10 kn
(18.5 km/hour) or less speed restrictions in any SMA or DMA while
underway, and operational maneuvers.
<bullet> Seasonal Operating Requirements: Vineyard Wind will
conduct survey activities in the Cape Cod Bay Mid-Atlantic U.S.
Seasonal Management Area (SMA) and Off Race Point SMA only during the
months of August and September to ensure sufficient buffer between the
SMA restrictions (January to May 15) and known seasonal occurrence of
the North Atlantic right whale north and northeast of Cape Cod (fall,
winter, and spring). Vineyard Wind will also limit to three the number
survey vessels that will operate concurrently from March through June
within the lease areas (OCS-A 0501 and 0487) and offshore export cable
corridor (OECC) areas north of the lease areas up to, but not
including, coastal and bay waters. Another seasonal restriction area
south of Nantucket will be in effect from December to February in the
area delineated by the DMA that was effective from January 31, 2020
through February 15, 2020. In addition, Vineyard Wind would operate
either a single vessel, two vessels concurrently or, for short periods,
no more than three survey vessels concurrently in the areas described
above during the December-February and March-June timeframes when right
whale densities are greatest. The seasonal restrictions described above
will help to reduce both the number and intensity of North Atlantic
right whale takes.
<bullet> Reporting: Vineyard Wind will submit a final technical
report within 90 days following completion of the surveys. In the event
that Vineyard Wind personnel discover an injured or dead marine mammal,
Vineyard Wind shall report the incident to the Office of Protected
Resources (OPR), NMFS and to the New England/Mid-Atlantic Regional
Stranding Coordinator as soon as feasible. In the event of a ship
strike of a marine mammal by any vessel involved in the activities
covered by the authorization, Vineyard Wind shall report the incident
to OPR, NMFS and to the New England/Mid-Atlantic Regional Stranding
Coordinator as soon as feasible.
Comments and Responses
A notice of NMFS' proposal to issue a Renewal IHA to Vineyard Wind
was published in the Federal Register on June 8, 2021 (86 FR 30435).
That notice either described, or referenced descriptions of, Vineyard
Wind's activity, the marine mammal species that may be affected by the
activity, the anticipated effects on marine mammals and their habitat,
estimated amount and manner of take, and proposed mitigation,
monitoring and reporting measures. 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, 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, Connecticut Audubon
Society, and Cetacean Society international; and (2) Oceana.
The comments and our responses are summarized below.
Comment 1: The ENGOs and Oceana both recommended that NMFS expand
upon the statement in the Federal Register notice of proposed Renewal
IHA (85 FR 30435, June 08, 2021) that ``the mean annual North Atlantic
right whale densities have slightly increased in the activity area''
since the initial IHA was published. They suggest that our qualitative
summation of increased North Atlantic right whale densities in the
project area likely underestimates the true importance of the area as a
year-round core foraging habitat to North Atlantic right whales (Leiter
et al. 2017; Oleson et al. 2020) and that this needs to be more fully
explored, considered, and analyzed before an IHA is renewed. The ENGOs
stressed that NMFS should be transparent in our decision-making
regardless of levels of take and that we must publish the results of
the updated analysis. They also stressed that NMFS must ensure
undisturbed access to foraging habitat to adequately protect North
Atlantic right whales since North Atlantic right whales employs a
``high-drag'' foraging strategy that enables them to selectively target
high-density prey patches, but is energetically expensive.
Response: When assessing the appropriateness of a Renewal IHA NMFS
must confirm, among other things, that no new information has been
received that would alter the prior analysis. In the Federal Register
notice of proposed Renewal IHA (85 FR 30435, June 08, 2021), NMFS
discussed new information related to North Atlantic right whales
including updated density estimates obtained from updated model outputs
reported by Roberts et al. (2020). These habitat-informed density
models offer the most comprehensive evaluation of North Atlantic right
whale density along the east coast to date and consider both the
spatial and temporal importance of the project area to right whales.
These updated density estimates, which incorporated additional sighting
data and included increased spatial resolution in the project area,
suggest that the North Atlantic right whale densities in the project
region slightly increased from 0.105 whales per 100 km\2\ to 0.169
whales per 100 km\2\. While the increase in density was described, NMFS
acknowledges that the actual updated density estimate was omitted from
the Federal Register notice of proposed Renewal IHA (85 FR 30435, June
08, 2021) and therefore we have included this information along with
the updated unadjusted modeled exposure estimate of 36 individuals in
this Federal Register notice of the Renewal IHA.
In the proposed and final notices of the initial IHA, we discuss
the importance of portions of the Project Area as core habitat for
North Atlantic right whales. For example, data indicates that right
whales occur at elevated densities in the Project Area south and
southwest of Martha's Vineyard in the spring (March-May) and south of
Nantucket during winter (December-February) (Roberts et al. 2018,
Leiter et al. 2017, Kraus et al. 2016). In addition, consistent
aggregations of right whales feeding and possibly mating within or
close to these specific areas is such that they have been considered
right whale ``hotspots'' (Leiter et al. 2017, Kraus et al. 2016).
Oleson et al. (2020), which was referenced by the commenters but was
not available at the time of the initial authorization of this IHA,
provides additional evidence that part of the Project Area coincides
directly with year-round core foraging habitat south of Martha's
Vineyard and Nantucket islands where both visual and acoustic
detections of North Atlantic right whales indicate a nearly year-round
presence. We have included this information in this Federal Register
notice of the issued Renewal IHA. Despite these areas being important
year-round foraging habitat for right
[[Page 38303]]
whales, NMFS notes that prey for North Atlantic right whales are mobile
and broadly distributed throughout the project area; therefore, North
Atlantic right whales are expected to be able to resume foraging once
they have moved away from any areas with disturbing levels of
underwater noise. There is ample foraging habitat adjacent to the
Project Area that is not ensonified by HRG sources. For example, in the
fall of 2019 and 2020, North Atlantic right whales were particularly
attracted to Nantucket Shoals, located to the east of the Project Area.
Furthermore, the spatial acoustic footprint of the survey is very small
relative to the spatial extent of the available foraging habitat.
NMFS concluded that there is no new information, including from the
reports referenced by the commenters, suggesting that our analysis or
findings should change for the Renewal IHA from those reached in the
initial IHA. This includes consideration of our take estimate of 10
North Atlantic right whales despite slightly increased densities of
right whales in the Project Area and the importance of portions of the
Project area as year-round foraging habitat for right whales. Based on
findings reported in Vineyard Wind's preliminary monitoring report and
the expected mitigating effects from the required mitigation measures
on the actual taking of right whales, we have concluded that the
updated exposure estimate based on the updated density estimate
represents a significant overestimate of the actual potential exposure,
and therefore authorize the same amount of take (10 individuals) as
proposed in the initial IHA and the Federal Register notice of proposed
Renewal IHA (85 FR 30435, June 08, 2021). These mitigation measures
include the use of two PSO observers at times when HRG equipment is in
use, shutdown measures and vessel strike avoidance measures when North
Atlantic right whales are sighted within the 500-m EZ (which is at
least 2.5 times greater than the predicted Level B harassment threshold
distance (195 m)), and seasonal restrictions that limit or prohibit
survey activities during times and areas when North Atlantic right
whales are found in higher densities. NMFS believes that these measures
will minimize the impact that the proposed activities will have on this
species, particularly in areas of importance such as year-round
foraging habitats, to North Atlantic right whales.
Comment 2: 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: 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 Ocean (Roberts et al. 2016); more information, including
the model results and supplementary information for each of those
models, is available at <a href="http://seamap.env.duke.edu/models/Duke-EC/">seamap.env.duke.edu/models/Duke-EC/</a> EC/. 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 8 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 5
discrete regions. This most recent update--model version nine 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 including aerial surveys of
the Massachusetts and Rhode Island Wind Energy Areas led by New England
Aquarium (Kraus et al. 2016), spanning 2011-2015 and 2017-2018 and
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; and
<bullet> Increase the resolution of the model beyond 10 km, if
possible.
All of these objectives were met in developing the most recent
update to the North Atlantic right whale density model.
As noted above, NMFS has determined that the Roberts et al. suite
of density models represent the best available scientific information.
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.
The ENGOs pointed to additional data that can be obtained from
sightings databases, passive acoustic monitoring efforts, aerial
surveys, and autonomous vehicles. The ENGO's pointed specifically to
monthly standardized marine mammal aerial surveys flown in the
Massachusetts and Rhode Island and Massachusetts Wind Energy Areas by
the New England Aquarium from October 2018 through August 2019 and
March 2020 through July 2021. The 2018-2019 New England Aquarium study
showed that North Atlantic right whale distribution changed seasonally,
with several sightings of North Atlantic right whales in Lease Area
OSC-A 0522 in the winter, one sighting in Lease Area OSC-A 0501 in the
spring, and no other
[[Page 38304]]
sightings in Vineyard Wind's lease areas during other portions of the
year. Information on the results from the 2020-2021 aerial survey is
currently unavailable. The commenters also referenced a study funded by
the Bureau of Offshore Energy Management (BOEM) using an autonomous
vehicle for real-time acoustical monitoring of marine mammals from
December 2019 through March 2020 and again from December 2020 through
February 2021 on Cox Ledge, located approximately 35 miles east of
Montauk Point, New York between Block Island and Martha's Vineyard.
Note that only a small portion of BOEM's acoustic study area overlapped
with Vineyard Wind's Project Area. Between December 21, 2020 and March
30, 2020 (91 days) North Atlantic right whales were acoustically
detected on 13 days and possibly detected on an additional 3 days. No
North Atlantic right whales were detected in BOEM's study area between
March 25, 2021 and July 01, 2021 (98 days). The data from these recent
studies does not indicate that NMFS should alter any of the required
mitigation and monitoring requirements, particularly as NMFS considers
impacts from these types of survey operations to be near de minimis and
that Vineyard Wind is already required to adhere to time and area
seasonal restrictions. It would be difficult to draw any qualitative
conclusions from these study results given that most of the
observations and detections occurred in only small portions of Vineyard
Wind's Project Area.
NMFS will review any other recommended data sources that become
available 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. At this time, there are no additional
new sources of density information that affects our analyses or
determinations.
While the ENGO's referenced additional data, no specific
recommendations were made with regard to use of this information in
informing the take estimates. Rather, the commenters suggested 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 and final IHAs were conducted, and has considered all
available data, including sources referenced by the commenters, in
reaching its determinations in support of issuance of the Renewal IHA
requested by Vineyard Wind.
Comment 3: Oceana asserted that NMFS' must use the best available
science for assessing North Atlantic right whale abundance estimates.
They state that North Atlantic right whales have experienced
significant declines in the last decade and that NMFS should use the
most recent population estimate to support the IHA which is being
considered for renewal, which they state is the Pettis et al. (2020)
estimate of 356 North Atlantic right whales. They commented that this
estimate is nearly 14 percent lower than the estimate NMFS used in the
analysis to support the proposed Renewal IHA.
Response: NMFS agrees that the best available and most recent
science should be used for assessing North Atlantic right whale
abundance estimates in the Renewal IHA, but disagrees that the Pettis
et al. (2020) study represents the most recent and best available
estimate for North Atlantic right whale abundance. Rather the revised
abundance estimate published by Pace (2021) which was used in the
proposed Renewal IHA provide the most recent and best available
estimate, which suggest improvements to the model currently used to
estimate North Atlantic right whale abundance. Specifically, Pace
(2021) looked at a different way of characterizing annual estimates of
age-specific survival. The results strengthened the case for a change
in mean survival rates after 2010-2011, but did not significantly
change other current estimates (population size, number of new animals,
adult female survival) derived from the model. The estimate reported by
Pace (2021) and used in the Federal Register notice of proposed Renewal
IHA (85 FR 30435, June 08, 2021) and in this Renewal IHA is 368 (95% CI
356-378) whales. Of note, the estimate proposed by Pettis et al. (2020)
of 356 right whales is only three percent, not 14 percent, lower than
this newly available estimate, which NMFS has determined is the most
appropriate estimate to use.
Comment 4: The ENGOs asserted that the seasonal restrictions
described in the Federal Register notice of proposed Renewal IHA (85 FR
30435, June 08, 2021) are not protective enough. They recommended
additional seasonal restriction on site assessment and characterization
activities in the Project Areas with the potential to harass North
Atlantic right whales between November 1, 2021 and April 30, 2022 off
the coasts of New York and Connecticut, and from December 1, 2021
through April 30, 2022 off the coasts of Rhode Island and
Massachusetts. The ENGOs also requested clarification regarding whether
there would be a complete restriction on survey activities within
seasonal restricted areas or that simply a reduction in survey vessels
will be required.
Response: NMFS is concerned about the status of the North Atlantic
right whale population given that an unusual mortality event (UME) has
been in effect for this species since June of 2017 and that there have
been a number of recent mortalities. While the ensonified areas
contemplated for any single survey vessel are comparatively small and
the anticipated resulting effects of exposure relatively lower-level,
the potential impacts of multiple survey vessels (up to 8 according to
Vineyard Wind) operating simultaneously in areas of higher right whale
density are not well-documented and warrant caution.
NMFS reviewed the best available right whale density and abundance
data for the planned survey area (Roberts et al. 2020, Pace et al.
2021). We determined that right whale abundance is significantly higher
in the period starting in late winter and extending to late spring in
specific sections of the survey area. As described in the initial IHA,
based on this information NMFS determined that seasonal restrictions as
described in the final IHA and proposed Renewal IHA are both warranted
and practicable and thus defined seasonal restriction areas that
Vineyard Wind must follow when conducting marine site characterization
survey activities.
These restrictions include the requirement that survey activities
may only occur in the Cape Cod Bay Seasonal Management Area (SMA) and
off of the Race Point SMA during the months of August and September to
ensure sufficient buffer between the SMA restrictions (January to May
15) and known seasonal occurrence of right whales north and northeast
of Cape Cod (fall, winter, and spring). While there will not be a
complete restriction on survey activities, Vineyard Wind will limit to
three the number of survey
[[Page 38305]]
vessels that will operate concurrently from March through June within
the lease areas (OCS-A 0501 and 0487) and OECC areas north of the lease
areas up to, but not including, coastal and bay waters. An additional
seasonal restriction area was defined in the initial IHA south of
Nantucket and will be in effect from December to February in the area
delineated by the Dynamic Management Area (DMA or Slow Zone) that was
effective from January 31, 2020 through February 15, 2020. DMAs have
been established during this time frame in this area for the last
several years. DMAs are temporary protection zones that are triggered
when three or more whales are sighted within 2-3 miles of each other
outside of active SMAs. The size of a DMA is larger if more whales are
present.
The ENGOs recommended that additional restrictions be put into
place, but they do not provide any evidence or support for the
additional restrictions they recommend other than mentioning that North
Atlantic right whales are expected to be present in the Project Area
year-round. While we acknowledge that the North Atlantic right whale
densities temporally fluctuate off the coasts of New York and
Connecticut and off the coasts of Rhode Island and Massachusetts and
that North Atlantic right whales could be in the Project Area
throughout the year, we have determined the seasonal restrictions
described in the initial IHA and included in the Renewal IHA, paired
with the other required mitigation and monitoring measures, are
sufficiently protective. This is supported by findings from Vineyard
Wind's preliminary monitoring report, which demonstrated that only four
sightings of seven North Atlantic right whales were observed in the
initial year of survey activities, all of which were observed on a
single day (December 20, 2020). We have determined that additional
seasonal restrictions are not warranted since NMFS considers impacts
from these types of survey operations to be near de minimis. Further,
the commenters have not demonstrated that additional seasonal
restrictions would result in a net benefit given the cost and
impracticability of implementing such measures.
Vineyard Wind is required to operate no more than three survey
vessels concurrently in the areas described above during the December-
February and March-June timeframes when right whale densities are
greatest (i.e., a reduction in the number of vessels is required rather
than a complete restriction of survey activities). The seasonal
restrictions described above will help to reduce both the number and
intensity of right whale takes. Regarding practicability, the timing of
Vineyard Wind's surveys is driven by a complex suite of factors
including availability of vessels and equipment (which are used for
other surveys and by other companies), other permitting timelines, and
the timing of certain restrictions associated with fisheries gear,
among other things. Vineyard Wind revised their initial survey plan
such to accommodate these measures and satisfy their permitting and
operational obligations. Therefore, NMFS determined that this required
mitigation measure is sufficient to ensure the least practicable
adverse impact on species or stocks and their habitat.
Comment 5: The ENGOs stated that the agency's assumptions regarding
mitigation effectiveness are unfounded and cannot be used to justify
any reduction in the number of takes authorized as was done for North
Atlantic right whales. The ENGOs do not believe that Vineyard Wind can
successfully mitigate Level B harassment simply through the
implementation of the IHA mitigation measures currently required. The
reasons cited include: (1) The agency's reliance on a 160 dB threshold
for behavioral harassment that commenters assert is not supported by
the best available scientific information; (2) the reliance on the
assumption that marine mammals will avoid sound despite studies that
have found avoidance behavior is not generalizable among species and
contexts; and (3) until the effectiveness of mitigation measures are
determined, it is premature to include any related assumptions to
reduce the numbers of marine mammal takes.
Response: The three comments provided by the ENGOs are addressed
individually below.
(1) NMFS acknowledges that the potential for behavioral response to
an anthropogenic source is highly variable and context-specific and
acknowledges the potential for Level B harassment at exposures to
received levels below 160 dB rms. Alternatively, NMFS acknowledges the
potential that not all animals exposed to received levels above 160 dB
rms will respond in ways constituting behavioral harassment. There are
a variety of studies indicating that contextual variables play a very
important role in response to anthropogenic noise, and the severity of
effects are not necessarily linear when compared to a received level
(RL). The commenters cited several studies (Nowacek et al. 2004,
Kastelein et al. 2012 and 2015, Gomez et al. 2016, Tyack & Thomas 2019)
that showed there were behavioral responses to sources below the 160 dB
threshold, but also acknowledge the importance of context in these
responses. For example, Nowacek et al. (2004) reported the behavior of
five out of six North Atlantic right whales was disrupted at RLs of
only 133-148 dB re 1 [micro]Pa (returning to normal behavior within
minutes) when exposed to an alert signal. However, the authors also
reported that none of the whales responded to noise from transiting
vessels or playbacks of ship noise even though the RLs were at least as
strong, and contained similar frequencies, to those of the alert
signal. The authors state that a possible explanation for why whales
responded to the alert signal and did not respond to vessel noise is
that the whales may have been habituated to vessel noise, while the
alert signal was a novel sound. In addition, the authors noted
differences between the characteristics of the vessel noise and alert
signal which may also have played a part in the differences in
responses to the two noise types. Therefore, it was concluded that the
signal itself, as opposed to the RL, was responsible for the response.
DeRuiter et al. (2013) also indicate that variability of responses to
acoustic stimuli depends not only on the species receiving the sound
and the sound source, but also on the social, behavioral, or
environmental contexts of exposure. Finally, Gong et al. (2014)
highlighted that behavioral responses depend on many contextual
factors, including range to source, RL above background noise, novelty
of the signal, and differences in behavioral state. Similarly,
Kastelein et al. (2015, cited in the letter) examined behavioral
responses of a harbor porpoise to sonar signals in a quiet pool, but
stated behavioral responses of harbor porpoises at sea would vary with
context such as social situation, sound propagation, and background
noise levels.
NMFS uses 160 dB (rms) as the exposure level for estimating Level B
harassment takes, while acknowledging that the 160 dB rms step-function
approach is a simplistic approach. The commenters suggested that our
use of the 160-dB threshold implies that we do not recognize the
science indicating that animals may react in ways constituting
behavioral harassment when exposed to lower received levels (RL).
However, we do recognize the potential for Level B harassment at
exposures to RLs below 160 dB rms, in addition to the potential that
animals exposed to RLs above 160 dB rms will not respond in ways
constituting behavioral harassment (e.g.,
[[Page 38306]]
Malme et al. 1983, 1984, 1985, 1988; McCauley et al. 1998, 2000a,
2000b; Barkaszi et al. 2012; Stone 2015; Gailey et al. 2016; Barkaszi
and Kelly 2018). These comments appear to evidence a misconception
regarding the concept of the 160-dB threshold. While it is correct that
in practice it works as a step-function, i.e., animals exposed to
received levels above the threshold are considered to be ``taken'' and
those exposed to levels below the threshold are not, it is in fact
intended as a sort of mid-point of likely behavioral responses (which
are extremely complex depending on many factors including species,
noise source, individual experience, and behavioral context). What this
means is that, conceptually, the function recognizes that some animals
exposed to levels below the threshold will in fact react in ways that
are appropriately considered take, while others that are exposed to
levels above the threshold will not. Use of the 160-dB threshold allows
for a simplistic quantitative estimate of take, while we can
qualitatively address the variation in responses across different
received levels in our discussion and analysis.
Overall, we emphasize the lack of scientific consensus regarding
what criteria might be more appropriate. Defining sound levels that
disrupt behavioral patterns is difficult because responses depend on
the context in which the animal receives the sound, including an
animal's behavioral mode when it hears sounds (e.g., feeding, resting,
or migrating), prior experience, and biological factors (e.g., age and
sex). Other contextual factors, such as signal characteristics,
distance from the source, and signal to noise ratio, may also help
determine response to a given received level of sound. Therefore,
levels at which responses occur are not necessarily consistent and can
be difficult to predict (Southall et al. 2007; Ellison et al. 2012;
Bain and Williams 2006). Even experts have not previously been able to
suggest specific new criteria due to these difficulties (e.g., Southall
et al. 2007; Gomez et al. 2016). Further, we note that the sounds
sources and the equipment used in the specified activities are outside
(higher than) of the most sensitive range of mysticete hearing.
There is currently no agreement on these complex issues, and NMFS
followed the practice at the time of submission and review of this
analysis in assessing the likelihood of disruption of behavioral
patterns by using the 160 dB threshold. This threshold has remained in
use in part because of the practical need to use a relatively simple
threshold based on available information that is both predictable and
measurable for most activities. We note that the seminal review
presented by Southall et al. (2007) did not suggest any specific new
criteria due to lack of convergence in the data. NMFS is currently
evaluating available information towards development of guidance for
assessing the effects of anthropogenic sound on marine mammal behavior,
such as a dose-response curve presented by Tyack and Thomas (2017) and
referenced by the commenters. However, undertaking a process to derive
defensible exposure-response relationships is complex (e.g., NMFS
previously attempted such an approach, but is currently re-evaluating
the approach based on input collected during peer review of NMFS
(2016)). A recent systematic review by Gomez et al. (2016) referenced
by the commenters was unable to derive criteria expressing these types
of exposure-response relationships based on currently available data.
NMFS acknowledges that there may be methods of assessing likely
behavioral response to acoustic stimuli that better capture the
variation and context-dependency of those responses than the simple 160
dB step-function used here, and that an approach reflecting a more
complex probabilistic function may more effectively represent the known
variation in responses at different levels due to differences in the
receivers, the context of the exposure, and other factors. However,
there is no agreement on what that method should be or how more
complicated methods may be implemented by applicants. NMFS is committed
to continuing its work in developing updated guidance with regard to
acoustic thresholds, but pending additional consideration and process
is reliant upon an established threshold that is reasonably reflective
of available science.
(2) The commenters disagreed with NMFS' assumption that marine
mammals avoid sound sources. The ENGOs claimed that studies have not
found avoidance behavior to be generalizable among species and
contexts. Importantly, the commenters mistakenly seem to believe that
the NMFS' does not consider avoidance as a take, and that the concept
of avoidance is used as a mechanism to reduce overall take--this is not
the case. Avoidance of loud sounds is a well-documented behavioral
response, and NMFS often accordingly accounts for this avoidance by
reducing the number of injurious exposures, which would occur in very
close proximity to the source and necessitate a longer duration of
exposure. However, when Level A harassment takes are reduced in this
manner, they are changed to Level B harassment takes, in recognition of
the fact that this avoidance or other behavioral responses occurring as
a result of these exposures are still take. NMFS does not reduce the
overall amount of take as a result of avoidance or rely in any way on
assumptions related to avoidance.
(3) The comments stated that it is premature to include any related
assumptions to reduce the numbers of marine mammal takes until the
effectiveness of mitigation measures are determined. Vineyard Wind's
Preliminary Monitoring Report demonstrates that the number of takes did
not exceed those authorized based on the mitigation measures
implemented in the initial IHA and which are carried over in the
Renewal IHA during Vineyard Wind's survey activities. During the
reported marine mammal observations, no behavior was observed that
would be considered consistent with a behavioral response to harassment
(i.e., rapid swimming away from the sound source or vessel; repeated
fin slaps or breaches; notable changes in behavior as a result of
vessel approach), and no animals demonstrated signs of harm.
While we acknowledge the commenters' concerns regarding unfounded
assumptions concerning the effectiveness of mitigation requirements in
reducing actual take of North Atlantic right whales, it is also
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 195 m, whereas the
typically-required shutdown zone for North Atlantic right whales is 500
m. Vineyard Wind reported only four sightings of North Atlantic right
whales (seven individuals) in the initial year of survey activities,
all of which were observed on a single day (December 20, 2020) and
outside both the estimated 195-m Level B harassment zone and the 500-m
EZ for North Atlantic right whales (closest approaches were >900 m). It
is also important to note that these observations did not all occur
during actual use of the source for which this zone is estimated, and
that the actual zone at the time of observation could have been
smaller. Therefore, for North Atlantic right whales, NMFS expects that
required mitigation measures in the Renewal IHA will indeed be
effective in reducing actual take below the estimated amount, which
typically does
[[Page 38307]]
not account for the beneficial effects of mitigation.
Comment 6: Oceana suggested that NMFS should fully consider both
the use of the area and the effects of both acute and chronic stressors
on the health and fitness of North Atlantic right whales. Oceana
asserts that chronic stressors are an emerging concern for North
Atlantic right whale conservation and recovery and a recent peer-
reviewed study suggests that a range of stresses on North Atlantic
right whales have stunted growth rates (Stewart et al. 2021). Oceana
noted that disruptive site characterization activities may do more than
startle or spook North Atlantic right whales in this area and may cause
chronic stress to the whales or cause the whales to seek other feeding
areas at great energetic cost, decreasing their fitness, body condition
and ability to successfully feed, socialize and mate.
Response: NMFS agrees with Oceana that both acute and chronic
stressors are of concern for North Atlantic right whale conservation
and recovery. We recognize that acute stress from acoustic exposure is
one potential impact of these surveys, and that chronic stress can have
fitness, reproductive, etc. impacts at the population-level scale. NMFS
has carefully reviewed the best available scientific information in
assessing impacts to marine mammals, and recognizes that the surveys
have the potential to impact marine mammals through behavioral effects,
stress responses, and auditory masking. However, NMFS does not expect
that the generally short-term, intermittent, and transitory marine site
characterization survey activities would create conditions of acute or
chronic acoustic exposure leading to long-term physiological stress
responses in marine mammals. NMFS has also prescribed a robust suite of
mitigation measures, such as time-area limitations and extended
distance shutdowns for certain species that are expected to further
reduce the duration and intensity of acoustic exposure, while limiting
the potential severity of any possible behavioral disruption. The
potential for chronic stress was evaluated in making the determinations
presented in NMFS's negligible impact analyses.
Comment 7: Oceana asserted that NMFS must fully consider the
discrete effects of each activity and the cumulative effects of the
suite of approved, proposed and potential activities on marine mammals
and North Atlantic right whales in particular and ensure that the
cumulative effects are not excessive before issuing or renewing an IHA.
They noted that this was specifically important given the large number
of offshore wind-related activities being considered in the northeast
region.
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 Renewal 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.
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, Vineyard Wind was the applicant for the Renewal IHA,
and we are responding to the specified activity as described in that
application and request for renewal (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.
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 or Renewal IHA is
not likely to adversely affect listed marine mammals or their critical
habitat.
Comment 8: The ENGOs stated that the recent designation of Gulf of
Maine humpback whales as a strategic stock should be explicitly
considered by NMFS as part of the Renewal IHA.
Response: NMFS acknowledges that the status of the Gulf of Maine
humpback whale stock changed from non-strategic to strategic in the
2020 U.S. Atlantic and Gulf of Mexico Draft Marine Mammal Stock
Assessment Report (available online at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports</a>) and that we omitted this status change in the Description of
Marine Mammals in the Federal Register notice of the proposed Renewal
IHA (85 FR 30435, June 08, 2021). We have revised the Federal Register
notice of the authorized Renewal IHA to include this change.
NMFS does not expect that the generally short-term, intermittent,
and transitory HRG activities and the minor amount of take of humpback
whales by Level B harassment (up to 2.1 percent of the population)
would have meaningful impacts on the reproduction or survival on any
individual humpback whale and, therefore, no impacts at the stock level
are expected. Moreover, the population of interest is the West Indies
Distinct Population Segment (DPS) of which the Gulf of Maine stock is
just one feeding population. Therefore, this information regarding the
strategic listing of the Gulf of Maine humpback whale stock does
[[Page 38308]]
not change our initial analysis and determination.
Comment 9: The ENGO's noted that harbor porpoises are particularly
sensitive to noise, and, therefore, impacts to this species must be
minimized and mitigated to the full extent practicable during offshore
wind siting and development activities.
Response: Harbor porpoises are classified as high-frequency
cetaceans (NMFS 2018) and are the hearing group with the lowest PTS
onset thresholds, with maximum susceptibility to frequencies between 20
and 40 kHz (susceptibility decreases with outside this frequency
range). However, the largest modeled distance to the Level A harassment
threshold for HF cetaceans was 60 m. Furthermore, this is a
conservative assessment given that the model used to determine PTS
isopleths treats all devices as impulsive and results in significant
overestimates for non-impulsive devices, since PTS onset thresholds are
lower for impulsive sources compare to non-impulsive sources. Level A
harassment would also be more likely to occur at close approach to the
sound source or as a result of longer duration exposure to the sound
source, and mitigation measures--including a 100 m exclusion zone (EZ)
for harbor porpoises--are expected to minimize the potential for close
approach or longer duration exposure to active HRG sources. In
addition, harbor porpoises are known to be behaviorally sensitive
species, in that they respond to comparatively lower received levels
and are known to avoid vessels and other sound sources and, therefore,
harbor porpoises would also be expected to avoid a sound source prior
to that source reaching a level that would result in injury (Level A
harassment). Therefore, NMFS has determined that take of harbor
porpoises or any other animal by Level A harassment is unlikely to
occur and has not authorized any such takes. Any takes by Level B
harassment are anticipated to be limited to brief startling reactions
and/or temporary avoidance of the Project Area. Further, appropriate
mitigation measures have been included to ensure the least practicable
adverse impact on harbor porpoises and other marine mammal species. No
harbor porpoises were observed by Vineyard Wind in their initial year
of survey activities according to their preliminary monitoring report,
further supporting the potential for harassment to be discountable.
Comment 10: The ENGOs recommended that NMFS should prohibit the
commencement of geophysical surveys at night to maximize the
probability that marine mammals are detected and confirmed clear of the
EZs. The commenters asserted that initiation of work should occur with
ramp-up, only during daylight hours.
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; i.e., <60 m). 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.
Note that NMFS considers impacts from 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. NMFS is also requiring
Vineyard Wind to deploy two PSOs during nighttime hours who must have
access to night-vision equipment (i.e., night-vision goggles and/or
infrared technology). Given these factors, NMFS does not believe that
there is a need for more restrictive mitigation requirements.
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 ability of 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 in the future. 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. 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, and practicability of the
recommended measures for the applicant, NMFS has determined that
restricting operations as recommended is not warranted or practicable
in this case.
Comment 11: Oceana recommended that when HRG surveys are safe to
resume after a shutdown event, the surveys should be required to use a
soft start, ramp-up procedure to encourage any nearby marine life to
leave the area.
Response: NMFS agrees with this recommendation and included in the
Federal Register notice of the proposed IHA (85 FR 7952, February 02,
2020), the initial IHA (85 FR 26940, May 05, 2020), the proposed
Renewal IHA (85 FR 30435, June 08, 2021) and this final Renewal IHA a
stipulation that when technically feasible, survey equipment must be
ramped up at the start or restart of survey activities. Ramp-up must
begin with the power of the smallest acoustic equipment at its lowest
practical power output appropriate for the survey. When technically
feasible the power must then be gradually turned up and other acoustic
sources added in a way such that the source level would increase
gradually.
Comment 12: Based on the assertion that the 160 dB threshold for
behavioral harassment is not supported by best available scientific
information and grossly underestimates Level B take, the ENGOs
recommended that NMFS establish an 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. Oceana also recommended that zones for North Atlantic
right whales extend at least 1,000 m, but did not provide reasoning for
this zone size. The ENGOs further note that they consider source levels
greater than 180 dB re 1 [mu]Pa (SPL) at 1-meter at frequencies between
7 Hz and 35 kHz to be potentially harmful to low-frequency cetaceans.
Response: NMFS disagrees with this recommendation and the assertion
that the 160 dB threshold for behavioral harassment is not supported by
best
[[Page 38309]]
available scientific information and grossly underestimates take by
Level B harassment (see Comment 5 for a discussion regarding why NMFS
uses the 160 dB threshold). It is unclear to NMFS how the commenters
determined that source levels greater than 180 dB re 1 [mu]Pa (SPL) are
potentially harmful to low-frequency cetaceans. NMFS historically
applied a received level (not source level) root mean square (rms)
threshold of 180 dB SPL as the potential for marine mammals to incur
PTS (i.e., Level A (injury) harassment); however, in 2016, NMFS
published it Technical Guidance for Assessing the Effects of
Anthropogenic Sound on Marine Mammal Hearing which updated the 180 dB
SPL Level A harassment threshold. Since that time, NMFS has been
applying dual threshold criteria based on both peak and a weighted (to
account for marine mammal hearing) cumulative sound exposure level.
NMFS released a revised version of the Technical Guidance in 2018. We
encourage the ENGOs to review the Technical Guidance available at
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a> to inform future reviews of
any proposed IHA on which they may wish to comment. As described in the
Estimated Take section, NMFS has established a PTS (Level A harassment)
threshold of 183 dB cumulative SEL for low frequency specialists, and a
right whale would need to approach within 2 meters of the source to
potentially incur PTS from the largest source.
Regarding the shutdown zone recommendation, we note that the 500-m
EZ for North Atlantic right whales exceeds the modeled distance to the
largest 160-dB Level B harassment isopleth distance (195 m) by a
substantial margin. Given that calculated Level B harassment isopleths
are likely conservative, and NMFS considers impacts from HRG survey
activities to be near de minimis, a 100-m shutdown for other marine
mammal species (including large whales and strategic stocks of small
cetaceans) is sufficiently protective to effect the least practicable
adverse impact on those species and stocks. Further, as discussed in
Comment 10, 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; i.e.,
<60 m).
Comment 13: Oceana recommended that a shutdown of HRG equipment be
required should a North Atlantic right whale or other protected species
enter an EZ, unless necessary for human safety. They further
recommended that if and when such an exemption occurs the project must
immediately notify NMFS with reasons and explanation for exemption and
a summary of the frequency of these exceptions must be publicly
available to ensure that these are the exception rather than the norm
for the project.
Response: There are several shutdown requirements described in the
Federal Register notice of the proposed IHA (85 FR 7952, February 02,
2020), the initial IHA (85 FR 26940, May 05, 2020), the proposed
Renewal IHA (85 FR 30435, June 08, 2021) and which are included in this
final Renewal IHA, including the stipulation that geophysical survey
equipment must be immediately shut down if any marine mammal is
observed within or entering the relevant EZs while geophysical survey
equipment is operational. There is no exemption for human safety and it
is unclear what exemption the commenter is referring to. In regards to
reporting, Vineyard Wind must notify NMFS if a North Atlantic right
whale is observed at any time by any project vessels during surveys or
during vessel transit. Additionally, Vineyard Wind is required to
report the relevant survey activity information, such as such as the
type of survey equipment in operation, acoustic source power output
while in operation, and any other notes of significance (i.e., pre-
clearance survey, ramp-up, shutdown, end of operations, etc.) as well
as the estimated distance to an animal and its heading relative to the
survey vessel at the initial sighting and survey activity information.
As documented in Vineyard Wind's preliminary monitoring report for the
surveys completed under the initial IHA authorization (available on our
website 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>), except for
instances of voluntary approaches by delphinids, there were no
instances where marine mammals were observed within the required
shutdown zone and shutdown procedures were not implemented. If a right
whale is detected within the EZ before a shutdown is implemented, the
right whale and its distance from the sound source, including whether
it is within the Level B or Level A harassment zones, would be reported
in Vineyard Wind's final monitoring report and made publically
available on our website. Vineyard Wind is required to immediately
notify NMFS of any sightings of North Atlantic right whales and report
upon survey activity information so that comment is not applicable to
this Renewal IHA.
Comment 14: The ENGOs and Oceana recommended that a combination of
visual monitoring by PSOs and PAM should be used at all times that
survey work is underway in order to monitor exclusion zones and
maximize the detection of protected species and stocks. The ENGOs also
mentioned that while the previously issued IHA indicated that Vineyard
Wind will voluntarily employ PAM to support monitoring at night, there
is no reference to PAM in the ``Monitoring Measures'' section of that
document, nor the proposed Renewal IHA and requested that this measure
be clarified by NMFS.
Response: The foremost concern expressed by the ENGOs and Oceana 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
[[Page 38310]]
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 such as the one planned by
Vineyard Wind. While NMFS agrees that PAM can be an important tool for
augmenting detection capabilities in certain circumstances, its utility
in further reducing impact for Vineyard Wind's 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 195 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. However, we note that Vineyard Wind has stated their intention
to voluntarily implement PAM during night operations as an added
precautionary measure even though this is not a NMFS requirement.
Comment 15: The ENGOs recommended that the passive acoustic
monitors for this and future wind development projects should be part
of a migratory corridor-wide network of passive acoustic monitors
organized by NOAA and BOEM in collaboration with state governments as
well as private, academic, and non-profit partners. They also
recommended that NMFS should also advance a robust and effective near
real-time monitoring and mitigation system for North Atlantic right
whales and other endangered and protected species that will be more
responsive to the ongoing dynamic species distributional shifts
resulting from climate change, as well as provide more flexibility to
developers during offshore wind energy development.
Response: NMFS is generally supportive of these concepts. 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. In 2020, NMFS
convened a workshop to address objectives related to monitoring North
Atlantic right whales. The NMFS publication by Oleson et al. (2020)
titled ``Technical Memorandum NMFS-OPR-64: North Atlantic Right Whale
Monitoring and Surveillance: Report and Recommendations of the National
Marine Fisheries Service's Expert Working Group'', and 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>,
summarizes information from the workshop 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.
In regards to the current Renewal IHA, NMFS cannot require Vineyard
Wind to be a part of such monitoring networks until such a network of
monitoring devices is formalized. However, NMFS will consider
implementing such measures in the future should such a network be
developed.
Comment 16: The ENGOs recommended that Vineyard Wind must employ a
minimum of four PSOs following a two-on/two-off rotation, each
responsible for scanning no more than 180[deg] of the horizon during
both daylight and nighttime hours, while Oceana recommended that all
vessels associated with the proposed Vineyard Wind marine site
characterization should be required to carry and use PSOs at all times
when underway. Both commenters also recommended that infrared equipment
should be during daylight hours to maximize the probability of
detection of marine mammals. The ENGOs requested that NMFS clarify what
visual monitoring measures are required and/or will be employed by
Vineyard Wind to monitor the exclusion, buffer, and monitoring zones
during daylight hours, poor visibility conditions, and at night.
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. 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 195-m harassment zone) will
be successful in detecting marine mammals that are available for
detection at the surface. Despite this, Vineyard Wind has committed to
a minimum of two NMFS-approved PSOs on duty and conducting visual
observations on all survey vessels at all times when HRG survey
equipment is in use (i.e., daylight and nighttime operations). NMFS has
analyzed the potential for incidental take resulting from Vineyard
Wind's activity and have determined that based on the nature of the
activities, and in consideration of the mitigation measures included in
the initial IHA and the Renewal IHA, the potential for incidental take
when HRG activities are not operational is so low as to be
discountable.
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. Nevertheless, as
night vision technology has continued to improve, NMFS has adapted its
practice, and two PSOs are required to be on duty at night on source
vessels. NMFS included a requirement in the final IHA and the Renewal
IHA that night-vision
[[Page 38311]]
equipment (i.e., night-vision goggles with thermal clip-ons and
infrared/thermal imaging technology) must be available for use. Survey
operators are not required to provide PSOs with infrared devices during
the day but observers are not prohibited from employing them. Given
that use of infrared devices for detecting marine mammals during the
day has been shown to be helpful under certain conditions, NMFS will
consider requiring them to be made accessible for daytime PSOs. NMFS is
also requiring that all PSOs be equipped with reticulated binoculars
and have the ability to estimate distances to marine mammals located in
proximity to the vessel and/or EZs using range finders based on
conditions and visibility to support the sighting and monitoring of
marine species. The visual monitoring measures required in the Renewal
IHA are identical to those required in the initial IHA and were
explained in detail in the associated notices (85 FR 7952, February 02,
2020; 85 FR 26940, May 05, 2020). We have determined that the PSO
requirements in the IHA are sufficient to ensure the least practicable
adverse impact on the affected species or stocks and their habitat.
Comment 17: The ENGOs and Oceana both expressed concerns that the
proposed Renewal IHA sets no requirement to minimize the impacts of
underwater noise through the use of best available technology and other
methods to minimize sound levels from geophysical surveys. The ENGOs
recommended that NMFS should require Vineyard Wind to select sub-bottom
profiling systems for survey activities, and operate those systems at
power settings that achieve the lowest practicable source level for the
objective. Oceana recommended that to be consistent with the
requirement to achieve ``the least practicable impact on such species
or stock and its habitat,'' the IHA must include conditions for the
survey activities that will first avoid adverse effects on North
Atlantic right whales in and around the survey site and then minimize
and mitigate the effects that cannot be avoided. They state that this
should include a full assessment of which activities, technologies and
strategies are truly necessary to provide information to inform
development of Vineyard Wind and which are not critical. If, for
example, a lower impact technique or technology will provide necessary
information about the site without adverse effects, Oceana recommended
that technique or technology should be permitted while other tools with
more frequent, intense or long-lasting effects should be prohibited. In
general, the ENGOs and Oceana asserted that NMFS must require that all
IHA applicants minimize the impacts of underwater noise to the fullest
extent feasible, including through the use of best available technology
and methods to minimize sound levels from geophysical surveys.
Response: The MMPA requires that an IHA include measures that will
effect the least practicable adverse impact on the affected species and
stock and, in practice, NMFS agrees that the IHA should include
conditions for the survey activities that will first avoid adverse
effects on North Atlantic right whales in and around the survey site,
where practicable, and then minimize the effects that cannot be
avoided. NMFS has determined that the Renewal IHA meets this
requirement to effect the least practicable adverse impact. Oceana does
not make any specific recommendations of measures to add to the Renewal
IHA other than assessing which technologies and strategies are truly
necessary to provide information to inform development of Vineyard
Wind. While the ENGOs recommend the use of sub-bottom profiling
systems, the Vineyard Wind energy developers selected the equipment
necessary during HRG surveys to achieve their objectives (which
includes shallow sub-bottom profilers). As part of the analysis for all
marine site characterization survey IHAs, NMFS evaluated the effects
expected as a result of use of the specified activity (i.e., the
equipment described here), 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 or the appropriate techniques or technologies for an
operator's survey objectives.
Comment 18: The ENGOs and Oceana both generally recommended that
NMFS require all vessels of all sizes associated with the proposed
survey activities to speeds less than 10 kn at all times with no
exemptions due to the risk of ship strikes to North Atlantic right
whales and other large whales. The ENGOs requested clarification
regarding whether the requirement that project-related vessels of any
size limit speeds to 10 kn or less within active SMAs or DMAs was still
applicable to the Renewal IHA as this measure was included in the
issued IHA but not restated in the Proposed Renewal IHA. The ENGOs also
asserted that NMFS must acknowledge that vessel strikes can result in
take by Level A harassment, and that NMFS must explicitly analyze the
potential for such take resulting from vessel collisions in its take
analysis for Vineyard Wind.
Response: While NMFS acknowledges that vessel strikes can result in
Level A harassment or mortality, we have analyzed the potential for
ship strike resulting from Vineyard Wind's activity and have determined
that based on the nature of the activity and the required mitigation
measures specific to ship strike avoidance included in the Renewal IHA,
potential for ship strike is so low as to be discountable. These
mitigation measures, which were included in the initial IHA, summarized
in the Proposed Renewal IHA, and are likewise required in the Renewal
IHA, include: A requirement that all vessel operators reduce vessel
speed to 10 kn (18.5 km/hour) or less when any large whale, any mother/
calf pairs, pods, or large assemblages of non-delphinoid 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 while underway; a requirement
that, if underway, vessels must steer a course away from any sighted
North Atlantic right whale at 10 kn or less until the 500-m minimum
separation distance has been established; a requirement that, if a
North Atlantic right whale is sighted in a vessel's path, or within 500
m of an underway vessel, the underway vessel must reduce speed and
shift the engine to neutral; a requirement that all vessels underway
must maintain a minimum separation distance of 100 m from any sighted
non-delphinoid species; and a requirement that all vessels underway
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). For clarification, the requirement that all
vessel operators comply with 10 kn (18.5 km/hour) or less speed
restrictions in any SMA or DMA while underway is also still a required
mitigation measure and applicable to the Renewal IHA. We have
determined that the ship strike avoidance measures in the Renewal IHA
are sufficient to ensure the least practicable adverse impact on
species or stocks and their habitat. We note that no documented vessel
strikes have occurred for any marine site characterization surveys
which were
[[Page 38312]]
issued IHAs from NMFS during the survey activities themselves, or while
transiting to and from project sites.
Comment 19: Oceana commented that the IHA must include requirements
for all vessels to maintain a separation distance of at least 500 m
from North Atlantic right whales at all times.
Response: NMFS agrees with Oceana and has stipulated in both the
Federal Register notice of proposed Renewal IHA (85 FR 30435, June 08,
2021) and this Renewal IHA that survey vessels must maintain a
separation distance of 500 m or greater from any sighted North Atlantic
right whale. Further, if a whale is observed but cannot be confirmed as
a species other than a right whale, NMFS requires that the vessel
operator must assume that it is a right whale and maintain a minimum
separation distance of 500 m.
Comment 20: Oceana recommended that the Renewal IHA should require
all vessels to be equipped with and using Class A Automatic
Identification System (AIS) devices at all times while on the water in
order to support oversight and enforcement of the conditions of the HRG
survey. Oceana suggested this requirement should apply to all vessels,
regardless of size, associated with the project.
Response: NMFS is generally supportive of the idea that vessels
involved with survey activities be equipped with and using Class A
Automatic Identification System (devices) at all times while on the
water. Indeed, there is a precedent for NMFS requiring such a
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268,
December 7, 2018); however, these activities were much louder than the
marine site characterization surveys to be carried out by Vineyard Wind
and resulted in the potential for both Level A and Level B harassment
take. Given the small isopleths and small numbers of take authorized by
this IHA, NMFS does not agree that the benefits of requiring AIS on all
vessels associated with the survey activities outweighs and warrants
the cost and impracticability of this requirement to Vineyard Wind.
Comment 21: Oceana asserted that the IHA must include requirements
to specify and require all vessels associated with the project, at all
phases of development, follow the vessel plan and rules including
vessels owned by the developer, contractors, employees, and others
regardless of ownership, operator, contract. They noted that exceptions
and exemptions will create enforcement uncertainty and incentives to
evade regulations through reclassification and redesignation. They
recommended that NMFS can simplify this by requiring all vessels to
abide by the same requirements, regardless of size, ownership,
function, contract or other specifics. They also recommended that the
IHA must also include a condition to specify that developers are
explicitly liable for behavior of all employees, contractors,
subcontractors, consultants, and associated vessels and machinery.
Response: NMFS agrees with Oceana and required these measures in
the initial IHA and the Renewal IHA. The IHA requires that a copy of
the IHA must be in the possession of Vineyard Wind, the vessel
operators, the lead PSO, and any other relevant designees of Vineyard
Wind operating under the authority of this IHA. The IHA also states
that Vineyard Wind must ensure that the vessel operators and other
relevant vessel personnel are briefed on all responsibilities,
communication procedures, marine mammal monitoring protocols,
operational procedures, and IHA requirements prior to the start of
survey activity, and when relevant new personnel join the survey
operations. Further the IHA includes a measure that states that the IHA
may be modified, suspended or withdrawn if the holder fails to abide by
the conditions prescribed in the IHA, or if NMFS determines the
authorized taking is having more than a negligible impact on the
species or stock of affected marine mammals.
Comment 22: Oceana stated that the IHA must include a requirement
for all phases of the Vineyard Wind site characterization to subscribe
to the highest level of transparency, including frequent reporting to
Federal agencies, requirements to report all visual and acoustic
detections of North Atlantic right whales and any dead, injured, or
entangled marine mammals to the Fisheries Service or the Coast Guard as
soon as possible and no later than the end of the Protected Species
Observer shift. To foster stakeholder relationships and allow public
engagement and oversight of the permitting, the IHA should require all
reports and data to be accessible on a publicly available website.
Response: NMFS agrees with the need for reporting and indeed, the
MMPA calls for IHAs to incorporate reporting requirements. As included
in the initial IHA and the proposed Renewal IHA, the Renewal IHA
includes requirements for reporting that supports Oceana's
recommendations. Vineyard Wind is required to submit a monitoring
report to NMFS within 90 days after completion of survey activities
that fully documents the methods and monitoring protocols, summarizes
the data recorded during both visual and passive acoustic monitoring,
estimates the number of marine mammals that may have been taken during
survey activities, and describes, assesses and compares the
effectiveness of monitoring and mitigation measures. PSO datasheets or
raw sightings data must also be provided with the draft and final
monitoring report. Further the Renewal IHA stipulates that if a North
Atlantic right whale is observed at any time by any project vessels,
during surveys or during vessel transit, Vineyard Wind must immediately
report sighting information to the NMFS North Atlantic Right Whale
Sighting Advisory System and to the U.S. Coast Guard, and that any
discoveries of injured or dead marine mammals be reported by Vineyard
Wind to the Office of Protected Resources, NMFS, and to the New
England/Mid-Atlantic Regional Stranding Coordinator as soon as
feasible. All reports and associated data submitted to NMFS are
included on the project website for public inspection.
Comment 23: The ENGOs objected to NMFS' process to consider
extending any one-year IHA with a truncated 15-day comment period as
contrary to the MMPA.
Response: NMFS' IHA renewal process meets all statutory
requirements. In prior responses to comments about Renewal IHAs (e.g.,
84 FR 52464; October 02, 2019 and 85 FR 53342, August 28, 2020), NMFS
has explained how the renewal process, as implemented, is consistent
with the statutory requirements contained in section 101(a)(5)(D) of
the MMPA, provides additional efficiencies beyond the use of
abbreviated notices, and, further, promotes NMFS' goals of improving
conservation of marine mammals and increasing efficiency in the MMPA
compliance process. Therefore, we intend to continue implementing the
renewal process.
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 Renewal IHAs. As noted above, the Request for Public Comments
section made clear that the agency was seeking comment on both the
proposed IHA and the potential issuance of a renewal for this project.
Because any Renewal IHA (as explained in the Request for Public
Comments section) is limited to another year of identical or nearly
identical activities in the same location (as described in the
Description of the Specified Activities and Anticipated
[[Page 38313]]
Impacts section) or the same activities that were not completed within
the one-year period of the initial IHA, reviewers have the information
needed to effectively comment on both the immediate proposed IHA and a
possible one-year Renewal IHA, should the IHA holder choose to request
one.
While there are additional documents submitted with a renewal
request, for a qualifying Renewal IHA these will be limited to, as they
were in this case, 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 also confirms, as it did for Vineyard
Wind's renewal request, among other things, that the activities will
occur in the same location; involve the same species and stocks;
provide for continuation of the same mitigation, monitoring, and
reporting requirements; and that no new information has been received
that would alter the prior analysis. The renewal request also contains
a preliminary monitoring report, but that is to verify that effects
from the activities do not indicate impacts of a scale or nature not
previously analyzed. The additional 15-day public comment period
provided 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 IHA 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 IHA is 45
days.
In addition to the Renewal IHA process being consistent with all
requirements under section 101(a)(5)(D), it is also consistent with
Congress' intent for issuance of IHAs to the extent reflected in
statements in the legislative history of the MMPA. Through the
provision for Renewal IHAs in the regulations, description of the
process and express invitation to comment on specific potential Renewal
IHAs in the Request for Public Comments section of each proposed IHA,
the description of the process on NMFS' website, further elaboration on
the process through responses to comments such as these, posting of
substantive documents on the agency's website, and provision of 30 or
45 days for public review and comment on all proposed IHAs and Renewal
IHAs respectively, NMFS has ensured that the public ``is invited and
encouraged to participate fully in the agency decision-making
process.''
Determinations
The survey activities to be carried out by Vineyard Wind are
identical to (and a subset of) those analyzed in the initial IHA, as
are the method of taking and the effects of the action. The mitigation
measures and monitoring and reporting requirements as described above
are also identical to the initial IHA. The planned number of days of
activity will be reduced given the completion of a portion of the
originally planned work. Therefore, the amount of take authorized is
equal to or less than that authorized in the initial IHA. The potential
effect of Vineyard Winds' activities remains limited to Level B
harassment in the form of behavioral disturbance. In analyzing the
effects of the activities in the initial IHA, NMFS determined that
Vineyard Wind's activities would have a negligible impact on the
affected species or stocks and that the authorized take numbers of each
species or stock were small relative to the relevant stocks (e.g., less
than one-third of the abundance of all stocks).
NMFS has concluded that there is no new information suggesting that
our analysis or findings should change from those reached for the
initial IHA. This includes consideration of the estimated abundances of
four stocks (North Atlantic right whales, humpback whales, fin whales,
and minke whales) decreasing and the estimated abundances of one stock
(common dolphins) increasing (Hayes et al. 2020, Pace 2021) since the
issuance of the initial IHA. This also includes consideration of
Vineyard Wind's preliminary monitoring report, increased density
estimates for North Atlantic right whales based on updated model
outputs from Roberts et al. (2020) as described above in the Estimated
Take section, the information supporting the assessment that the
Project Area includes areas that are important year-round habitats for
North Atlantic right whales, and the recent designation of Gulf of
Maine humpback whales as a strategic stock. Based on the information
and analysis contained here and in the referenced documents, NMFS has
determined the following: (1) The required mitigation measures will
effect the least practicable impact on marine mammal species or stocks
and their habitat; (2) the authorized takes will have a negligible
impact on the affected marine mammal species or stocks; (3) the
authorized takes represent small numbers of marine mammals relative to
the affected stock abundances; (4) Vineyard Wind's activities will not
have an unmitigable adverse impact on taking for subsistence purposes
as no relevant subsistence uses of marine mammals are implicated by
this action, and; (5) appropriate monitoring and reporting requirements
are included.
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 authorized action with respect to environmental
consequences on the human environment.
This action is consistent with categories of activities identified
in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A,
which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has determined
that the issuance of the Renewal IHA qualifies to be categorically
excluded from further NEPA review.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) requires that each Federal agency insure that any action
it authorizes, funds, or carries out is not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of designated critical
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS
consults internally, in this case with the NMFS Greater Atlantic
Regional Fisheries Office (GARFO), whenever we authorize take for
endangered or threatened species.
The NMFS Office of Protected Resources is authorizing the
incidental take of four species of marine mammals which are listed
under the ESA: The North Atlantic right, fin, sei and sperm whale. On
April 10, 2013, NMFS Greater Atlantic Regional Fisheries Office (GARFO)
issued a programmatic Biological Opinion for BOEM Lease and Site
Assessment Rhode Island, Massachusetts, New York, and New Jersey Wind
Energy Areas determining site assessment surveys were not likely to
jeopardize the continued existence of North Atlantic these listed
species. NMFS requested initiation of consultation under Section 7 of
the ESA with NMFS GARFO on February 12, 2020, for issuance of the
initial IHA to
[[Page 38314]]
Vineyard Wind. On April 16, 2020 GARFO issued an amended incidental
take statement associated with the 2013 Biological Opinion and
determined that the issuance of the initial IHA was not likely to
jeopardize the continued existence of North Atlantic right, fin, sei
and sperm whales. On May 12, 2021, NMFS GARFO determined that their
initial consultation remains valid for the Renewal IHA and that the
Renewal IHA provides no new information about the effects of the
action, nor does it change the extent of effects of the action, or any
other basis to require reinitiation of the opinion.
Renewal
NMFS has issued a Renewal IHA to Vineyard Wind for the take of
marine mammals incidental to conducting marine site characterization
survey activities off the coast of Massachusetts in the areas of the
Commercial Lease of Submerged Lands for Renewable Energy Development on
the Outer Continental Shelf (OCS-A 0501 and OCS-A 0522) and along
potential submarine cable routes to landfall locations in
Massachusetts, Rhode Island, Connecticut, and New York. This Renewal
IHA is effective from July 15, 2021 through June 20, 2022.
Dated: July 15, 2021.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2021-15383 Filed 7-19-21; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on July 20, 2021.
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.