Notice2021-16774
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys, Virginia and North Carolina
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 6, 2021
Effective
July 15, 2021
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Kitty Hawk Wind, LLC (Kitty Hawk Wind) to incidentally harass, by Level B harassment, marine mammals during marine site characterization surveys offshore Virginia and North Carolina.
Full Text
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<title>Federal Register, Volume 86 Issue 149 (Friday, August 6, 2021)</title>
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[Federal Register Volume 86, Number 149 (Friday, August 6, 2021)]
[Notices]
[Pages 43212-43228]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-16774]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB227]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys, Virginia and North Carolina
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Kitty Hawk Wind, LLC (Kitty Hawk Wind) to incidentally harass, by Level
B harassment, marine mammals during marine site characterization
surveys offshore Virginia and North Carolina.
DATES: The IHA is effective July 15, 2021 through October 31, 2021.
FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as a list of the references cited in
this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth.
Description of Proposed Activity
Overview
On April 27, 2021, NMFS received an adequate and complete
application from Kitty Hawk Wind requesting an IHA authorizing the
take, by Level B harassment only, of nine species of marine mammals
incidental to marine site characterization surveys, specifically in
association with the use of high-resolution geophysical (HRG) survey
equipment off North Carolina. We note surveys will also occur off
Virginia; however, for reasons described below, take of marine mammals
incidental to use of those surveys is not expected to occur. The
surveys will support offshore wind development in 40 percent of the
lease area (OCS-A 0508) in the northwest corner closest to the North
Carolina shoreline (approximately 198 square kilometers (km\2\)). Kitty
Hawk Wind would use five types of survey equipment; however, as
described below, only the Fugro SRP EAH 2D sparker has the potential to
harass marine mammals. Exposure to noise from the surveys may cause
behavioral changes in marine mammals (e.g., avoidance, increased swim
speeds, etc.) rising to the level of take (Level B harassment) as
defined under the MMPA. NMFS has issued the requested IHA.
Dates and Duration
Kitty Hawk Wind would commence the survey no earlier than July 15,
with the objective of completing the work by September 31, 2021. The
surveys would cover approximately 3,300 km of survey trackline over 25
days, not including non-survey days likely needed for weather down
time. The IHA would be effective from July 15 through October 31, 2021.
Although the survey will likely be completed by September 31, 2021, the
additional month long effective period will allow for any unexpected
weather delays while still
[[Page 43213]]
affording protection to select migratory marine mammal species. This
schedule is based on 24-hour operations.
Detailed Description of Specific Activity
The purpose of Kitty Hawk Wind's marine site characterization
surveys is to support the siting of the proposed wind turbine
generators and offshore export cables, providing a more detailed
understanding of the seabed and sub-surface conditions in the wind
development area (WDA) and export cable corridor.
Kitty Hawk Wind anticipates that during most of the survey only two
vessels would be necessary, with one vessel operating nearshore and
another operating offshore. However, up to three vessels may operate at
any given time with final vessel choices dependent on the final survey
design, vessel availability, and survey contractor selection.
Concurrently operating vessels would remain at least 1 km apart. The
vessels will be capable of maintaining course and a survey speed of
approximately 3 knots (5.6 km per hour (hr)) while transiting survey
lines. Surveys will be conducted along track lines spaced 300 m apart,
with tie lines perpendicular to the main transect lines also spaced 300
m apart.
Acoustic sources planned for use during HRG survey activities
proposed by Kitty Hawk Wind include the following:
<bullet> Medium penetration, impulsive sources (i.e., boomers and
sparkers) are used to map deeper subsurface stratigraphy. A boomer is a
broadband source operating in the 3.5 Hz to 10 kHz frequency range.
Sparkers create omnidirectional acoustic pulses from 50 Hz to 4 kHz.
These sources are typically towed behind the vessel.
Operation of the following survey equipment types is not expected
to present reasonable risk of marine mammal take, and will not be
discussed further beyond the brief summaries provided below.
<bullet> Non-impulsive, parametric sub-bottom profilers (SBPs) are
used for providing high data density in sub-bottom profiles that are
typically required for cable routes, very shallow water, and
archaeological surveys. These sources generate short, very narrow-beam
(1[deg] to 3.5[deg]) signals at high frequencies (generally around 85-
100 kHz). The narrow beamwidth significantly reduces the potential that
a marine mammal could be exposed to the signal, while the high
frequency of operation means that the signal is rapidly attenuated in
seawater. These sources are typically deployed on a pole rather than
towed behind the vessel.
<bullet> Ultra-short baseline (USBL) positioning systems are used
to provide high accuracy ranges by measuring the time between the
acoustic pulses transmitted by the vessel transceiver and a transponder
(or beacon) necessary to produce the acoustic profile. It is a two-
component system with a pole-mounted transceiver and one or several
transponders mounted on other survey equipment. USBLs are expected to
produce extremely small acoustic propagation distances in their typical
operating configuration.
<bullet> Multibeam echosounders (MBESs) are used to determine water
depths and general bottom topography. The proposed MBESs all have
operating frequencies >180 kHz and are therefore outside the general
hearing range of marine mammals.
Side scan sonars (SSS) are used for seabed sediment classification
purposes and to identify natural and man-made acoustic targets on the
seafloor. The proposed SSSs all have operating frequencies >180 kHz and
are therefore outside the general hearing range of marine mammals.
Table 1 identifies representative survey equipment proposed by Kitty
Hawk Wind. The make and model of the listed geophysical equipment may
vary depending on availability and the final equipment choices will
vary depending upon the final survey design, vessel availability, and
survey contractor selection. Not all sources within Table 1 have the
potential to result in take (for reasons described above); however, for
completeness, we have included them here. Based on our assessment, only
the Fugro SPR EAH 2D Sparker has the potential to result in the take of
marine mammals.
All decibel (dB) levels included in this notice are referenced to 1
micoPascal. The root mean square decibel level (dB<INF>rms</INF>)
represents the square root of the average of the pressure of the sound
signal over a given duration. The peak dB level (dB<INF>peak</INF>)
represents the range in pressure between zero and the greatest pressure
of the signal. Operating frequencies are presented in kilohertz (kHz).
Table 1--Summary of Representative HRG Equipment
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Operating Source Source
HRG system Representative HRG survey frequencies level level Pulse duration Beam width
equipment kilohertz (kHz) dBpeak dBrms (ms) (degree)
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Subsea Positioning/ultra-short baseline Sonardyne Ranger 2 USBL.......... 35-50 200 188 16 180
positioning system (USBL) a.
Sidescan Sonar a b............................. Klein 3900 Side Scan Sonar....... 445/900 226 220 0.016 to 0.100 1 to 2
Parametric Shallow penetration sub-bottom Innomar parametric SES-2000 85 to 115 247 c 241 0.07 to 2 1
profiler a. Standard.
Multibeam Echo Sounder a b..................... Reson T20-P...................... 200/300/400 227 221 2 to 6 1.8 <plus-
minus> 0.2
Multi-level Stacked Sparker.................... Fugro SPR EAH 2D Sparker (700 J). 0.4 to 3.5 d 223 d 213 d 0.5 to 3 180
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\a\ Potential harassment from operation of this device is not anticipated.
\b\ Operating frequencies are above all relevant marine mammal hearing thresholds.
\c\ The equipment specification sheets indicate a peak source level of 247 dB re 1 [mu]PA m. The average difference between the peak and SPLRMS source
levels for sub-bottom profilers measured by Crocker and Fratantonio (2016) was 6 dB. Therefore, the estimated SPLRMS sound level is 241 dB re 1 [mu]PA
m.
\d\ Sound levels where not available from the manufacturer. Therefore, the source levels and pulse duration are based on data from Crocker and
Fratantonio (2016) using the Applied Acoustics Dura-Spark as a comparable proxy. The source levels are based on an energy level of 1,000 J with 240
tips and a bandwidth of 3.2 kHz.
Mitigation, monitoring, and reporting measures contained within the
IHA are described in detail later in this document (please see
Mitigation and Monitoring and Reporting sections).
[[Page 43214]]
Comments and Responses
A notice of proposed IHA was published in the Federal Register on
May 25, 2021 (86 FR 28061). During the 30-day public comment period,
NMFS received one comment letter from the Southern Environmental Law
Center (SELC), which submitted comments on behalf of Natural Resources
Defense Council, National Wildlife Federation, Conservation Law
Foundation, Defenders of Wildlife, Whale and Dolphin Conservation,
Assateague Coastal Trust, the Nature Conservancy Virginia, North
Carolina Wildlife Federation, Sierra Club Virginia Chapter, Surfrider
Foundation, All Our Energy, Gotham Whale, International Marine Mammal
Project of Earth Island Institute, Inland Ocean Coalition, Mass
Audubon, NY4WHALES, Ocean Conservation Research, Oceanic Preservation
Society, and Sanctuary Education Advisory Specialists. NMFS has posted
the comment letter online at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-otherenergy-activities-renewable">www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-otherenergy-activities-renewable</a>. A summary of the comments as well as NMFS'
responses are below.
Comment 1: SELC recommends NMFS: (1) Fund analyses of recently
collected sighting and acoustic data for all data-holders; (2) continue
to fund and expand surveys and studies to improve our understanding of
distribution and habitat use of marine mammals off North Carolina and
Virginia, including within and adjacent to the Project Area, as well as
throughout the broader Mid-Atlantic region, in the very near future;
and (3) take a ``precautionary approach'' with regard to siting and
mitigation when permitting offshore wind activities in areas for which
species distribution data are limited.
Response: NMFS agrees with SELC that continued surveys are
warranted as is the analysis of collected data. We welcome the
opportunity to participate in fora where implications of such data and
development of a dataset would be discussed. Note, however, that NMFS
will fund pertinent surveys based on agency priorities and budgetary
considerations. Note that NOAA Fisheries recently published ``Technical
Memorandum NMFS-OPR-64: North Atlantic Right Whale (NARW) Monitoring
and Surveillance: Report and Recommendations of the National Marine
Fisheries Service's Expert Working Group'' (<a href="https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whalemonitoring-and-surveillance-report-andrecommendations">https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whalemonitoring-and-surveillance-report-andrecommendations</a>). This
report includes recommendations for a comprehensive monitoring strategy
to guide future analyses and data collection. NOAA Fisheries will
consider the Expert Working Group's recommendations, as well as other
relevant information, in its decision-making about right whale research
and population monitoring.
Comment 2: SELC is concerned over use of the Roberts et al. 2020
density data to inform take estimates because they claim it excludes
data obtained through additional sighting databases, passive acoustic
monitoring (PAM), and satellite telemetry. They also contend that the
density model uses data primarily from before 2010 and therefore does
not reflect shifts in (NARW) distribution observed over the past five
years (2017-2021). SELC contends that because the density maps produced
by the Roberts et al. models do not fully reflect the abundance,
distribution, and density of marine mammals for the U.S. East Coast,
they cannot be the only information source relied upon when estimating
take. They recommend NMFS consider any data from state monitoring
efforts, PAM data, opportunistic marine mammal sightings, and other
data sources.
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 (Roberts et al., 2016); more information, including the
model results and supplementary information for each of those models,
is available at <a href="https://seamap.env.duke.edu/models/Duke/">https://seamap.env.duke.edu/models/Duke/</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 NARWs by incorporating additional sighting data and
implementing three major changes: Increasing spatial resolution,
generating monthly estimates on three time periods of survey data, and
dividing the study area into five discrete regions. This most recent
update--model version 9 for NARWs--was undertaken with the following
objectives (Roberts et al., 2020):
<bullet> To account for recent changes to right whale
distributions, the model should be based on survey data that extend
through 2018, or later if possible. In addition to updates from
existing collaborators, data should be solicited from two survey
programs not used in prior model versions:
[cir] Aerial surveys of the Massachusetts and Rhode Island Wind
Energy Areas led by New England Aquarium (Kraus et al., 2016), spanning
2011-2015 and 2017-2018.
[cir] Recent surveys of New York waters, either traditional aerial
surveys initiated by the New York State Department of Environmental
Conservation in 2017, or digital aerial surveys initiated by the New
York State Energy Research and Development Authority in 2016, or both.
<bullet> To reflect a view in the right whale research community
that spatiotemporal patterns in right whale density changed around the
time the species entered a decline in approximately 2010, consider
basing the new model only on recent years, including contrasting
``before'' and ``after'' models that might illustrate shifts in
density, as well as a model spanning both periods, and specifically
consider which model would best represent right whale density in the
near future.
<bullet> To facilitate better application of the model to near-
shore management questions, extend the spatial extent of the model
farther in-shore, particularly north of New York.
<bullet> Increase the resolution of the model beyond 10 kilometers
(km), if possible.
All of these objectives were met in developing the most recent
update to the density model. The commenters do not cite this most
recent report, and the comments suggest that the aforementioned data
collected by the New England Aquarium is not reflected in the model.
Therefore, it is unclear whether the commenters are aware of the most
recently available data, which is used herein.
As noted above, NMFS has determined that the Roberts et al. suite
[[Page 43215]]
of density models represent the best available scientific information,
and we specifically note that the 2020 version of the NARW model may
address some of the specific concerns provided by the commenters. (Note
that there has been an additional minor model update affecting
predictions for Cape Cod Bay in the month of December, which is not
relevant to the location of this survey off of Delaware and New
Jersey.) However, NMFS acknowledges that there will always be
additional data that is not reflected in the models and that may inform
our analyses, whether because the data were not made available to the
model authors or because the data is more recent than the latest model
version for a specific taxon. NMFS will review any recommended data
sources to evaluate their applicability in a quantitative sense (e.g.,
to an estimate of take numbers) and, separately, to ensure that
relevant information is considered qualitatively when assessing the
impacts of the specified activity on the affected species or stocks and
their habitat. NMFS will continue to use the best available scientific
information, and we welcome future input from interested parties on
data sources that may be of use in analyzing the potential presence and
movement patterns of marine mammals, including NARWs, in U.S. Atlantic
waters.
Moreover, data sources cited by SELC pertain to Virginia waters. As
described in Kitty Hawk Wind's application and the notice of proposed
IHA, none of the sources used in Virginia waters have the potential to
harass animals, either because they operate above the hearing ranges of
all marine mammals or have such narrow beams widths or low source
levels that harassment is unlikely. Therefore, no take in Virginia
waters is anticipated to occur as the source with potential to result
in harassment, the Furgo sparker, is only used on the WDA off North
Carolina.
Finally, as described in the ``Estimated Take'' section of the
notice of proposed IHA and below, Kitty Hawk Wind and NMFS also
consider monitoring data collected by Kitty Hawk Wind during previous
marine site characterization surveys. Therefore, density estimates
alone were not solely used to inform take authorization amounts for all
species. As described in the notice of proposed IHA, take was adjusted
from the density-based calculations for pilot whales, common dolphins,
Atlantic spotted dolphins and Risso's dolphins. In summary, use of the
Roberts et al. density data in combination of site-specific data
collected by Kitty Hawk Wind represents a reasonable approach
representing the best available science for estimating take from the
proposed marine site characterization surveys.
Comment 3: SELC identifies that the Roberts et al. model does not
differentiate between species of pilot whale or seal, or between stocks
of bottlenose dolphin. They are concerned that the proposed IHA
separates marine mammals by species or by stock but the same accounting
is used for each, and observations do not distinguish between species
or stock. They go on to say that a [negligible impact finding] record
that provides ``general discussions with little, if any, relevance to
the population-level effects on specific species and stock, and to
conclusory statements that no such effects are expected,'' is
inadequate.
Response: SELC is correct that the Roberts et al. density models do
not distinguish between stocks of pilot whales and bottlenose dolphins.
We note that seal models are not applicable here given the time of year
the survey will be conducted and NMFS did not propose, nor authorize,
take of any seal species or stock incidental to the proposed marine
site characterization survey. The MMPA requires that species- or stock-
specific negligible impact determinations be made, and NMFS has done
so. In this case, NMFS has authorized take numbers specific to each
affected species or stock. As a general matter, NMFS is unaware of any
available density data which differentiates between species of pilot
whales or seals, or stocks of bottlenose dolphins. However, lack of
such data does not preclude the requisite species or stock-specific
findings. In the event that an amount of take is authorized at the
guild or species level only, e.g., for pilot whales or bottlenose
dolphins, respectively, NMFS may adequately evaluate the effects of the
activity by conservatively assuming (for example) that all takes
authorized for the guild or species would accrue to each potentially
affected species or stock. In this case, NMFS made clear why only the
offshore stock of bottlenose dolphins is likely to be taken by the
proposed marine site characterizations surveys and, for pilot whales,
has assigned take on the basis of an assumed group size of 20 for each
potentially affected species. NMFS fully describes the reasons why the
amount of take authorized, per stock, would have a negligible impact to
each marine mammal stock. NMFS has also clarified the total amount of
take authorized to each stock of pilot whales (long-finned and short-
finned) is 20 each.
Comment 4: SELC believes the assumptions regarding seasonal
occurrence of NARW in the survey area are unfounded because they assert
NARWs are detected during every month of the year in the Mid-Atlantic.
Response: As described in the notice of proposed IHA, Kitty Hawk
Wind plans to complete the surveys by the end of September (we note the
IHA is effective until October 31, 2021 in case of unexpected, long
weather delays). Of that time, only half of the days would utilize the
sparker, the only piece of equipment with potential to harass marine
mammals. NMFS does not assert there is zero possibility that NARWs
could be encountered but uses the best available science to identify
that it is highly unlikely a NARW would be present in the project area
(both Virginia and North Carolina) during this time of year and for
this short survey. The density estimate considered in estimating take
was 0.006 NARWs per 100 km\2\. The resulting take calculation was
0.097, appropriately rounded to zero. In the case that a NARW is
encountered, Kitty Hawk Wind is required to implement shut down at 500
m, reduce speeds to 10kts, and maintain a 500 m setback distance to
avoid take. Overall, NMFS does not anticipate nor authorize take of
NARWs incidental to the survey. To further ensure that take of NARW
will not occur, NMFS has limited the effective period of the IHA to a
very short duration, expiring on October 31, 2021.
Comment 5: SELC believes NMFS should acknowledge the potential for
take by Level A harassment from HRG surveys on small cetaceans and
reconsider the analysis of Level A harassment from HRG surveys on
harbor porpoises and other acoustically sensitive species.
Response: NMFS disagrees the potential for Level A harassment i.e.,
permanent threshold shift (PTS) exists from exposure to marine site
characterization survey sources for any marine mammal, including high
frequency cetaceans (i.e., harbor porpoise). Given the time of year the
surveys would occur, harbor porpoise are not normally in the region,
let alone in close proximity to survey vessel. The take, by Level B
harassment only, of one harbor porpoise is authorized in the IHA as a
precautionary measure. Further, as described in the proposed IHA, the
risk of any marine mammal incurring permanent hearing loss is highly
unlikely. Kitty Hawk Wind's application identifies conservative
calculations to the NMFS thresholds that indicate the potential onset
of PTS. These distances are extremely close to the vessel for low and
high frequency cetaceans (approximately 18 m and 120 m, respectively).
The potential for Level A
[[Page 43216]]
harassment of mid-frequency cetaceans essentially does not exist as the
calculated Level A harassment distance is 0.5 m (based on the SEL
threshold; received levels exceeding peak thresholds were not reached
at any distance for any hearing group). These distances are
conservative as they do not account for the influences of absorption,
water depth, and/or beamwidth, all of which can result in smaller
harassment radii.
Comment 6: SELC acknowledges that the proposed IHA includes
mitigation measures to avoid vessel strikes yet believes NMFS
overlooked vessel collisions as a source of potential take and
recommends vessel collisions should be incorporated into NMFS' take
analysis. SELC identified that vessels associated with the proposed
activity will move at speeds well below 10 kts but that NMFS did not
address potential vessel strike from vessels transiting to and from the
lease area.
Response: As described in the proposed IHA, NMFS does not
anticipate vessel strike of any marine mammal would occur incidental to
the proposed marine site characterization surveys. Kitty Hawk Wind did
not request take from vessel strike nor did NMFS authorize any.
NMFS included a vessel strike analysis in the notice of proposed
IHA (86 FR 28061, May 25, 2021) under the Potential Effects of
Specified Activities on Marine Mammals and Their Habitat section. We
identified that at average transit speed for geophysical survey
vessels, the probability of serious injury or mortality resulting from
a strike is less than 50 percent. However, the likelihood of a strike
actually happening is again low given the smaller size of these vessels
and generally slower speeds during transit. Further, Kitty Hawk Wind is
required to implement monitoring and mitigation measures during
transit, including observing for marine mammals and maintaining defined
separation distances between the vessel and any marine mammal (see
Mitigation and Monitoring and Reporting sections below). Finally,
despite several years of marine site characterization surveys occurring
off the U.S. east coast, no vessels supporting offshore wind
development have struck a marine mammal either in transit or during
surveying. Because vessel strikes are not reasonably expected to occur,
no take is authorized. The mitigation measures in the IHA related to
vessel strike avoidance are not limited to vessels operating within the
WDA or cable corridors and therefore apply to transiting vessels.
Although the proposed IHA considered this, the final IHA is more clear
in Condition 4(i) that vessel strike avoidance measures apply to
vessels during both transit and survey operations phases.
Comment 7: SELC is concerned that avoidance of NARWs in response to
survey noise could push NARWs and other large whales out of protected
areas and into areas with greater risk of vessel collision, such as
shipping lanes entering the Chesapeake Bay; therefore, vessel strike
due to displacement should considered in NMFS' take analysis.
Response: It is unclear what NARW protected areas SELC is referring
to given the temporal and spatial aspects of the proposed surveys
(e.g., no seasonal management areas (SMAs) are designated in the
project area during the survey timeframe). Regardless, we do not
anticipate that NARWs would be displaced from Kitty Hawk Wind's
proposed marine site characterization surveys. The survey would occur
during a time of year when NARW is very low and Kitty Hawk Wind has
committed to shutting down and avoiding NARWs in the unlikely scenario
a NARW is encountered such that no Level B harassment is anticipated to
occur. Further, sources used in the cable corridors are either above
marine mammal hearing ranges or have such low source levels and narrow
beam widths that harassment, in absence of mitigation, is not
anticipated. Therefore, even if a NARW was in the area of the cable
corridor surveys, a displacement impact is not anticipated.
Operation of the sparker in the WDA could lead to some avoidance of
marine mammals for which take is authorized (i.e., non-NARWs) from the
immediate vicinity of the vessel, but there is no evidence to suggest
that animals would be displaced hundreds of miles from the WDA to
shipping lanes near the entrance of the Chesapeake Bay. In summary,
SELCs concerns do not reflect a likely scenario and NMFS does not
anticipate NARWs, or any marine mammal, to be displaced to the degree
risk of vessel strike is increased.
Comment 8: SELC considers the renewal process to be inconsistent
with the statutory requirements under section 101(a)(5)(D) of the MMPA,
including the 30-day public comment requirement.
Response: In prior responses to comments about IHA Renewals (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 IHA renewals. The notice of the proposed IHA published in the
Federal Register on May 25, 2021 (86 FR 28061) made clear that the
agency was seeking comment on both the initial proposed IHA and the
potential issuance of a renewal for this project. Because any renewal
is limited to another year of identical or nearly identical activities
in the same location or the same activities that were not completed
within the effective period of the initial IHA, reviewers have the
information needed to effectively comment on both the immediate
proposed IHA and a possible 1-year renewal, should the IHA holder
choose to request one in the coming months.
While there would be additional documents submitted with a renewal
request, for a qualifying renewal these would be limited to
documentation that NMFS would 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 would also need to confirm, among other things, that
the activities would 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
would also contain a preliminary monitoring report, in order to verify
that effects from the activities do not indicate impacts of a scale or
nature not previously analyzed. The additional 15-day public comment
period provides the public an opportunity to review these few
documents, provide any additional pertinent information and comment on
whether they think the criteria for a renewal have been met. Between
the initial 30-day comment period on these same activities and the
additional 15 days, the total comment period for a renewal is 45 days.
Comment 9: SELC recommended NMFS impose a seasonal restriction on
site characterization activities that have
[[Page 43217]]
the potential to injure or harass NARWs. SELC identified this seasonal
restriction should occur from November 1 through April 30, citing the
best available scientific information on the relative density of NARWs
in the mid-Atlantic as well as potential presence of pregnant females
and mother-calf pairs. SELC further notes 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: As described in the proposed IHA, Kitty Hawk Wind
anticipates that the marine site characterization surveys will be
complete by September 31, 2021. Kitty Hawk Wind has committed to this
and NMFS has limited the effective period of the IHA to October 31,
2021.
It is unclear 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. Based on a conservative model that does not
account for beamwidth and absorption, a NARW would have to come within
17.9 m of the sparker to potentially incur PTS. Not only are NARWs
uncommon during the time of year the survey would occur, Kitty Hawk is
also required to not approach any NARW within 500 m or operate the
sparker within 500 m of a NARW. As such, there is no potential for a
NARW to experience PTS (i.e., Level A harassment) from the proposed
survey.
Comment 10: SELC recommends robust and effective real-time
monitoring and mitigation systems are in place to protected NARWs
throughout the year.
Response: NMFS is generally supportive of this concept. A network
of near real-time baleen whale monitoring devices are active or have
been tested in portions of New England and Canadian waters. These
systems employ various digital acoustic monitoring instruments which
have been placed on autonomous platforms including slocum gliders, wave
gliders, profiling floats and moored buoys. Systems that have proven to
be successful will likely see increased use as operational tools for
many whale monitoring and mitigation applications. The ENGOs cited the
NMFS publication ``Technical Memorandum NMFS[hyphen]OPR[hyphen]64: NARW
Monitoring and Surveillance: Report and Recommendations of the National
Marine Fisheries Service's Expert Working Group'' which is available
at: <a href="https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whale-monitoring-and-surveillance-report-and-recommendations">https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whale-monitoring-and-surveillance-report-and-recommendations</a>.
This report summarizes a workshop NMFS convened to address objectives
related to monitoring NARWs 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 NARW
calls that visual survey teams can then respond to for collection of
identification photographs or biological samples.
Comment 11: SELC recommends that if a survey is shut down during
periods of low visibility, including night time, developers should be
required to wait until daylight hours and good visibility for surveying
to resume.
Response: While we acknowledge the limitations inherent in
detection of marine mammals at night, NMFS disagrees with this
recommendation. As described in our notice of proposed IHA, the impacts
of marine site characterization surveys on marine mammals is relatively
low. No auditory injury is expected to result even in the absence of
mitigation, given the very small estimated Level A harassment zones (as
described in Kitty Hawk Wind's application). Any potential impacts to
marine mammals authorized for take would be limited to short-term
behavioral responses. Restricting surveys in the manner suggested by
the commenters may reduce marine mammal exposures by some degree in the
short term, but, this measure would lead to delays in completing the
survey which could push the work into times of the year when NARWs are
present or more abundant. Furthermore, restricting the applicant to
ramp-up only during daylight hours would have the potential to result
in lengthy shutdowns of the survey equipment, which could result in the
applicant failing to collect the data they have determined is necessary
and, subsequently, the need to conduct additional surveys the following
year. This would result in significantly increased costs incurred by
the applicant. Thus, the restriction suggested by the commenters would
not be practicable for the applicant to implement. In consideration of
potential effectiveness of the recommended measure and its
practicability for the applicant, NMFS has determined that restricting
survey start-ups to daylight hours when visibility is unimpeded is not
warranted or practicable in this case.
Comment 12: SELC contends the real-time PAM and shutdown on
acoustic detections should be required citing that NMFS is relying on
visual observation as the primary means of detecting NARWs. SELC
believes the effectiveness of detecting marine mammals with thermal and
infrared technology is questionable. They acknowledge recent research
suggests these tool are effective during calm conditions but state that
NMFS should consider limitations of these systems and ensure that the
detection of marine mammals is possible at distances out to and beyond
the exclusion zones prior to reliance on this evolving technology.
Response: The foremost concern expressed by the ENGOs in making the
recommendation to require use of PAM is with regard to North Atlantic
right whales. As described above, the likelihood of a NARW being
present within the survey area is extremely low. SELC is requesting
extremely costly and time consuming (i.e., impracticable) monitoring
and mitigation measures that are not warranted based on the best
available science indicating extremely low densities of NARWs during
the effective period of the IHA and that the potential severity of
impact of the surveys on marine mammals is general considered very low
and the survey is very short (12.5 days of sparker use during a time
when NARW density is extremely low).
SELC does 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
[[Page 43218]]
sources, using a towed passive acoustic sensor to detect baleen whales
(including right whales) is not typically effective because the noise
from the vessel, the flow noise, and the cable noise are in the same
frequency band and will mask the vast majority of baleen whale calls.
Vessels produce low-frequency noise, primarily through propeller
cavitation, with main energy in the 5-300 Hertz (Hz) frequency range.
Source levels range from about 140 to 195 decibel (dB) re 1 [mu]Pa
(micropascal) at 1 m (NRC, 2003; Hildebrand, 2009), depending on
factors such as ship type, load, and speed, and ship hull and propeller
design. Studies of vessel noise show that it appears to increase
background noise levels in the 71-224 Hz range by 10-13 dB (Hatch et
al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM systems
employ hydrophones towed in streamer cables approximately 500 m behind
a vessel. Noise from water flow around the cables and from strumming of
the cables themselves is also low-frequency and typically masks signals
in the same range. Experienced PAM operators participating in a recent
workshop (Thode et al., 2017) emphasized that a PAM operation could
easily report no acoustic encounters, depending on species present,
simply because background noise levels rendered any acoustic detection
impossible. The same workshop report stated that a typical eight-
element array towed 500 m behind a vessel could be expected to detect
delphinids, sperm whales, and beaked whales at the required range, but
not baleen whales, due to expected background noise levels (including
seismic noise, vessel noise, and flow noise).
There are several additional reasons why we do not agree that use
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM
can be an important tool for augmenting detection capabilities in
certain circumstances, its utility in further reducing impact during
HRG survey activities is limited. First, for this activity, the area
expected to be ensonified above the Level B harassment threshold is
relatively small (a maximum of 445 m)--this reflects the fact that, to
start with, the source level is comparatively low and the intensity of
any resulting impacts would be lower level and, further, it means that
inasmuch as PAM will only detect a portion of any animals exposed
within a zone, the overall probability of PAM detecting an animal in
the harassment zone is low--together these factors support the limited
value of PAM for use in reducing take with smaller zones. PAM is only
capable of detecting animals that are actively vocalizing, while many
marine mammal species vocalize infrequently or during certain
activities, which means that only a subset of the animals within the
range of the PAM would be detected (and potentially have reduced
impacts). Additionally, localization and range detection can be
challenging under certain scenarios. For example, odontocetes are fast
moving and often travel in large or dispersed groups which makes
localization difficult.
Given that the effects to marine mammals from the types of surveys
authorized in this IHA are expected to be limited to low level
behavioral harassment even in the absence of mitigation, the limited
additional benefit anticipated by adding this detection method
(especially for right whales and other low frequency cetaceans, species
for which PAM has limited efficacy), and the cost and impracticability
of implementing a full-time PAM program, we have determined the current
requirements for visual monitoring are sufficient to ensure the least
practicable adverse impact on the affected species or stocks and their
habitat.
Comment 13: SELC requests NMFS encourage Kitty Hawk Wind to
collaborate with scientists in collecting data that would increase the
understanding of the effectiveness of night vision and infrared
technologies off North Carolina, Virginia and the broader Mid-Atlantic
region with a view towards utilizing these technologies to commence
surveys at night in the future.
Response: NMFS agrees collaboration with scientists to improve the
understanding of the effectiveness of night vision and infrared
technologies for all offshore wind development and will encourage Kitty
Hawk Wind to do so.
Comment 14: SELC believes the shutdown zones established for
vessels operating a sparker should be applied to all vessels using
equipment that operate below 180 kHz because they claim such sources
have the potential to cause acoustic harassment of marine mammals.
Response: NMFS disagrees that all sources below 180 kHz have the
potential to cause harassment and; therefore, shutdown is necessary for
all equipment operating below 180 kHz. SELC's recommendation does not
consider fundamental acoustic propagation or consider source operating
characteristics such as beam width. The Innomar and USBL are non-
impulsive, non-parametric sound sources. The Innomar's beam width is 1
degree meaning a marine mammal would have to be in a particular part of
the water column very close to the source (essentially under the
vessel) to experience sounds loud enough to experience harassment. The
incredibly short duration of that exposure based on a moving animal and
moving source does not warrant a shutdown as harassment is not a likely
outcome of exposure.
Comment 15: SELC believes the proposed exclusion zone sizes are
inconsistent with those required for similar activities in other IHAs.
They cite the previous IHA for HRG surveys in the Kitty Hawk Lease
Area, wherein NMFS required a 200-meter exclusion zone for all large
whales, pilot whales, and Risso's dolphins, and question why deviations
from the 200-m exclusion zone were made. SELC recommends a clearance
zone of 500 m for all marine mammals and, to the extent feasible, a
1,000-m exclusion zone for NARWs.
Response: NMFS disagrees with this recommendation and has
determined that the exclusion zones included here are sufficiently
protective. First, we note SELC is incorrect that the previous IHA
required a 200 m exclusion zone for all large whales, pilot whales, and
Risso's dolphin. The actual exclusion zones in that referenced IHA
(both proposed and final) were 500-m for NARWs, 200- m for sei and fin
whales, and 100-m for all other large cetaceans (humpback whale, minke
whale, pilot whale, Risso's dolphin). Here, Kitty Hawk Wind must
implement a 500-m exclusion zone for all ESA-listed whales (i.e., the
same exclusion zone for NARWs and a larger exclusion zone for fin and
sei whales). The final IHA also increases the exclusion zone from
proposed to final such that the final exclusion zone is 100 m.
Therefore, while there is inconsistency, the IHA includes more
protective measures for marine mammals than the previous IHA. We note
that the 500-m exclusion zone for NARWs exceeds the modeled distance to
the largest Level B harassment isopleth distance (445 m). The
commenters do not provide any justification for the contention that the
existing exclusion zones are insufficient, and do not provide any
rationale for their recommended alternatives (other than that they are
larger). In summary, SELC's recommendation that the exclusion zone be
increased to 500-m for all marine mammals (except NARWs) and 1,000-m
for NARW is unsupported and does not consider the negative operational
impacts of such a recommendation. NMFS believes more
[[Page 43219]]
frequent shutdowns due to these measures would unnecessarily increase
survey duration, potentially pushing the project into times when NARWs
are more likely to be present.
Comment 16: SELC recommended that a combination of visual
monitoring--by four protected species observers adhering to ``two-on/
two-off'' schedule--and PAM should be used at all times that survey
work is underway, and, for efforts that continue into the nighttime,
night vision or infrared technology should also be used.
Response: NMFS typically requires that a single protected species
observer (PSO) must be stationed at the highest vantage point and
engaged in general 360-degree scanning during daylight hours only.
Although NMFS acknowledges that the single PSO cannot reasonably
maintain observation of the entire 360-degree area around the vessel,
it is reasonable to assume that the single PSO engaged in continual
scanning of such a small area (i.e., 500- m EZ, which is greater than
the maximum 141-m harassment zone) will be successful in detecting
marine mammals that are available for detection at the surface. The
monitoring reports submitted to NMFS have demonstrated that PSOs active
only during daylight operations are able to detect marine mammals and
implement appropriate mitigation measures. Kitty Hawk Wind proposed
using two PSOs and night vision/infrared technology during nighttime
operations. This was included in their application and the proposed IHA
made available for public comment; therefore, the portion of the
comment related to using night vision technology has been satisfied.
Regarding PAM, we refer to our response to Comment 12 in that use of
PAM is not warranted given the very low level of impact from the survey
should a marine mammal be exposed to sparker use and the
impracticability of implementing PAM during the very short survey.
Comment 17: SELC does not agree with the proposal to waive the
shutdown requirement for certain species of small delphinid. They are
particularly concerned that this exemption will leave the two stocks of
bottlenose dolphin, which are designated as depleted and/or strategic
under the MMPA, without adequate shutdown protections and therefore
NMFS should remove all stocks of bottlenose dolphin from this
exemption.
Response: The only stock likely to be present within the WDA during
use of the sparker, and for which take is authorized, is the offshore
stock of bottlenose dolphins. This stock is not a depleted or strategic
stock. While the northern and southern migratory coastal stocks are
depleted and strategic, they are likely to be found within the transit
corridor where the Furgo sparker is not used. As previous described,
the sources used in the transit corridor operate about 180 kHz (outside
of marine mammal hearing) or do not have the potential to result in
harassment due to their operating characteristics (e.g., very narrow
beam width). Therefore, NMFS retained the shutdown requirement as
proposed.
Comment 18: SELC recommends a mandatory speed restriction of 10 kts
for all project vessels within any designated dynamic management area
(DMA) for NARWs.
Response: The measure that all vessels traveling within a DMA was
included as condition 4(i)(i) of the proposed IHA that was made
available for public comment. The condition that all project vessels
(while in transit or during active surveying) travel at 10 kts or less
in both a DMA and an acoustically-triggered Slow Zone is included in
the final IHA. However, we note that given the location and time of
year surveys will occur, it is unlikely a DMA or acoustically-triggered
slow zone would be established.
Comment 19: SELC believes a sighting of three of more NARWs is too
high of a bar to trigger a DMA and recommends NMFS expand the DMA
requirement to include sightings of mother-calf pairs.
Response: DMAs are a component of the 2008 Final Rule To Implement
Speed Restrictions to Reduce the Threat of Ship Collisions With NARWs
(73 FR 60173, October 10, 2008). The rule was promulgated to minimize
lethal ship strikes of NARWs and based on the best available science.
DMAs are triggered based on the analysis and findings of Clapham and
Pace (2001). Any changes to the DMA program regarding modifying the
triggering of a DMA is outside the scope of the proposed IHA to Kitty
Hawk Wind. We note that despite being established alongside NOAA's
mandatory vessel speed regulations in Seasonal Management Areas in
2008, the DMA program is voluntary for the general public. However, as
described in the IHA, Kitty Hawk Wind is required to reduce vessel
speeds to 10 kts should a NARW mother/calf pair be observed.
Comment 20: SELC requests PAM should be employed in all transit
lanes to supplement the efforts of observers in visually detecting
marine mammals.
Response: As noted in our response to Comment 12, SELC is
requesting costly monitoring be employed that is not warranted and is
impracticable for the applicant to implement. Despite years of effort,
no marine site characterization vessels in the U.S., either in transit
or during active surveying and which operate under PSO requirements as
the ones included in the IHA, have never struck a marine mammal. NMFS
is also unaware of any marine site characterization vessel strikes in
Europe. The vessels involved will work 24-hrs per day; therefore,
transit time is very limited to essentially to and from the WDA upon
onset and completion of the survey with some limited potential for
transit to sheltered waters in the case of foul weather.
Changes From Proposed IHA to Final IHA
The effective period of the IHA is now limited to July 15, 2021
through October 31, 2021 to ensure no take of NARWs. We have also
increased the clearance zone for all Endangered Species Act (ESA)-
listed marine mammals (not just NARWs) to 500 m; increased the vessel
separation distance for all ESA-listed marine mammals during both
surveying and transit to 500 m; and included a 10 knot speed
restriction for vessels traveling in an acoustically-triggered slow
zone (the proposed IHA contained a 10 knot speed restriction for
dynamic management areas (DMAs) only).
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history, of the potentially affected species.
Additional information regarding population trends and threats may be
found in NMFS's Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species or stocks that may occur within the
survey area and summarizes information related to the population or
stock, including regulatory status under the MMPA and ESA and potential
biological removal (PBR), where known. For taxonomy, we follow
Committee on Taxonomy (2021). PBR is defined by the MMPA as the maximum
number of animals, not including natural mortalities, that may be
removed from a marine mammal stock while allowing that stock to reach
or maintain its optimum sustainable population (as described in NMFS's
SARs). While no mortality is anticipated
[[Page 43220]]
or authorized here, PBR and annual serious injury and mortality from
anthropogenic sources are included here as gross indicators of the
status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates. For some species, this geographic
area may extend beyond U.S. waters. All managed stocks in this region
are assessed in NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g.,
Hayes et al., 2019, 2020). All values presented in Table 2 are the most
recent available at the time of publication and are available in the
2019 SARs and draft 2020 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>).
Table 2--Summary Information of Species Within the Proposed Survey Area
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale...... Eubalaena glacialis.... Western North Atlantic. E/D; Y 368 (-; 356; 2020) \4\ 0.8 18.6
Family Balaenopteridae (rorquals):
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -/-; Y 1,393 (0; 1,375; 2016) 22 58
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E/D; Y 6,802 (0.24; 5,573; 11 2.35
2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E/D; Y 6,292 (1.02; 3,098; 6.2 1.2
2016).
Minke whale..................... Balaenoptera Canadian East Coast.... -/-; N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. NA..................... E; Y 4,349 (0.28;3,451; See 3.9 0
SAR).
Family Delphinidae:
Long-finned pilot whale......... Globicephala melas..... Western North Atlantic. -/-; N 39,215 (0.30; 30,627; 306 21
See SAR).
Short finned pilot whale........ Globicephala Western North Atlantic. -/-; Y 28,924 (0.24; 23,637; 236 160
macrorhynchus. 2016).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic -/-; N 62,851 (0.23; 51,914, 519 28
Offshore. 2016).
W.N.A. Northern -/-; Y 6,639 (0.41, 4,759, 48 12.2-21.5
Migratory Coastal. 2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -/-; N 172,947 (0.21; 1,452 399
145,216; 2016).
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -/-; N 39,921 (0.27; 32,032; 320 0
2012).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -/-; N 35,493 (0.19; 30,289; 303 54.3
2016).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -/-; N 95,543 (0.31; 74,034; 851 217
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -/-; N 75,834 (0.15; 66,884, 2,006 350
2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ Pace et al 2021.
All species that could potentially occur in the proposed survey
areas are included in Table 2. While NARWs, sei and sperm whales, and
harbor seals have been sighted within the survey area, the temporal
occurrence of the surveys (summer/early fall) does not overlap with the
time of year these species may be present in the survey area as most of
these species are in northern latitudes during this time. For these
reasons, along with the very short duration of the survey, we consider
the potential for take of these species de minimus and they will not be
discussed further.
In addition to what is included in Sections 3 and 4 of the
application, the SARs, and NMFS' website, further detail informing the
baseline for select species (e.g., information regarding current
Unusual Mortality Events (UME) and important habitat areas) was
provided in the notice of proposed IHA (86 FR 28061; May 25, 2021) and
is not repeated here. No new information is available since publication
of that notice.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007)
[[Page 43221]]
recommended that marine mammals be divided into functional hearing
groups based on directly measured or estimated hearing ranges on the
basis of available behavioral response data, audiograms derived using
auditory evoked potential techniques, anatomical modeling, and other
data. Note that no direct measurements of hearing ability have been
successfully completed for mysticetes (i.e., low-frequency cetaceans).
Subsequently, NMFS (2018) described generalized hearing ranges for
these marine mammal hearing groups. Generalized hearing ranges were
chosen based on the approximately 65 dB threshold from the normalized
composite audiograms, with the exception for lower limits for low-
frequency cetaceans where the lower bound was deemed to be biologically
implausible and the lower bound from Southall et al. (2007) retained.
Marine mammal hearing groups and their associated hearing ranges are
provided in Table 3.
Table 3--Marine Mammal Hearing Group
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans (dolphins, 150 Hz to 160 kHz.
toothed whales, beaked whales,
bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) (true 50 Hz to 86 kHz.
seals).
Otariid pinnipeds (OW) (underwater) (sea 60 Hz to 39 kHz.
lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Nine marine mammal species (all cetaceans) have the reasonable
potential to be taken by the survey activities (Table 5). Of the
cetacean species that may be present, three are classified as low-
frequency cetaceans (i.e., all mysticete species), five are classified
as mid-frequency cetaceans (i.e., all delphinid species), and one is
classified as a high-frequency cetacean (i.e., harbor porpoise).
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The notice of proposed IHA included a summary of the ways that
Kitty Hawk Wind's specified activity may impact marine mammals and
their habitat (86 FR 28061; May 25, 2021). In summary, the potential
effects of Kitty Hawk Wind's specified survey activity are expected to
be limited to Level B harassment of select marine mammal species. No
permanent or temporary auditory effects, or significant impacts to
marine mammal habitat, including prey, are expected. No new information
is available that would change our previous analysis; therefore, we
refer the reader to the aforementioned notice of proposed IHA rather
than repeating the details here. The Estimated Take section includes a
quantitative analysis of the number of individuals that are expected to
be taken by Kitty Hawk Wind's activity. The Negligible Impact Analysis
and Determination section considers the potential effects of the
specified activity, the Estimated Take section, and the Mitigation
section, to draw conclusions regarding the likely impacts of these
activities on the reproductive success or survivorship of individuals
and how those impacts on individuals are likely to impact marine mammal
species or stocks.
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through the IHA, which will inform both NMFS' consideration
of ``small numbers'' and the negligible impact determination.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes are by Level B harassment only, in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to noise from certain HRG acoustic sources.
Based primarily on the characteristics of the signals produced by the
acoustic sources planned for use, Level A harassment is neither
anticipated (even absent mitigation), nor authorized. Consideration of
the anticipated effectiveness of the mitigation measures (i.e.,
exclusion zones and shutdown measures), discussed in detail below in
the Mitigation section, further strengthens the conclusion that Level A
harassment is not a reasonably anticipated outcome of the survey
activity. As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and, (4)
and the number of days of activities. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of takes, additional information that can qualitatively
inform take estimates is also sometimes available (e.g., previous
monitoring results or average group size). Below, we describe the
factors considered here in more detail and present the take estimates.
[[Page 43222]]
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment for non-explosive sources--Though significantly
driven by received level, the onset of behavioral disturbance from
anthropogenic noise exposure is also informed to varying degrees by
other factors related to the source (e.g., frequency, predictability,
duty cycle), the environment (e.g., bathymetry), and the receiving
animals (hearing, motivation, experience, demography, behavioral
context) and can be difficult to predict (Southall et al., 2007,
Ellison et al., 2012). Based on what the available science indicates
and the practical need to use a threshold based on a factor that is
both predictable and measurable for most activities, NMFS uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS predicts that marine mammals are
likely to be behaviorally harassed in a manner we consider Level B
harassment when exposed to underwater anthropogenic noise above
received levels of 160 dB re 1 [mu]Pa (rms) for the impulsive sources
(i.e., sparkers) evaluated here for Kitty Hawk Wind's proposed
activity.
Level A Harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive). For more
information, see NMFS' 2018 Technical Guidance, which may be accessed
at <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Kitty Hawk Wind's proposed activity includes the use of impulsive
(i.e., sparkers) sources. However, as discussed above, NMFS has
concluded that Level A harassment is not a reasonably likely outcome
for marine mammals exposed to noise through use of the sources proposed
for use here, and the potential for Level A harassment is not evaluated
further in this document. Please see Kitty Hawk Wind's application for
details of a quantitative exposure analysis exercise, i.e., calculated
Level A harassment isopleths and estimated Level A harassment
exposures. Maximum estimated Level A harassment isopleths ranged from 0
to 2 m for all sources and hearing groups with the exception of the
Furgo 2D Sparker). The Level A harassment isopleth for low frequency,
mid-frequency, and high frequency cetaceans was 18, 0.5, and 120.5 m,
respectively and 10 m for phocids. Kitty Hawk Wind did not request
authorization of take by Level A harassment, and we did not authorize
Level A harassment in the IHA.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels and transmission loss
coefficient.
The Fugro SPR EAH 2D sparker is the only source with the potential
to result in marine mammal harassment; therefore, the 160
dB<INF>rms</INF> isopleth resulting from this source is applied in
ensonified area calculations. As noted previously, Kitty Hawk Wind
intends to survey a total track-line distance of 3,300 km over the
course of 25 days. It is estimated that the sparker will be in
operation for approximately 50 percent of this duration. During the
remainder of survey days, only sources not expected to have the
potential to result in take of marine mammals would be used. To be
conservative, the sparker has been assigned a duration of 13 days
(instead of 12.5 days). The distance to the 160 dB<INF>rms</INF> Level
B harassment isopleth is calculated using the conservative practical
spreading model and a source level of 213dB<INF>rms</INF> (Table 1).
The resulting isopleth is 445 m.
Kitty Hawk then considered track line coverage and isopleth
distance to estimate the maximum ensonified area over a 24-hr period,
also referred to as the zone of influence (ZOI). The estimated distance
of the daily vessel track line was determined using the estimated
average speed of the vessel (3 knots [5.6 km/hr]) over a 24-hr
operational period for a total daily track line coverage of 134.4 km.
The ZOI was calculated by squaring the respective maximum distance to
the Level B harassment threshold (445 m) and multiplying by the
estimated daily vessel track line distance of approximately 134.4 km to
obtain the area of a box (118.7km\2\). Then the ensonified area around
the vessel at any given point (0.63) was added to that area to account
for \1/2\ of a circle at each end of the box. The resulting ZOI is
119.3km\2\ (Table 4).
The ZOI is a representation of the maximum extent of the ensonified
area around a sound source over a 24-hr period. The ZOI was calculated
per the following formula:
ZOI = (Distance/day x 2r) + [pi]r\2\
Table 4--Ensonified Area During Sparker Use
----------------------------------------------------------------------------------------------------------------
Number of Estimated total Estimated
Survey equipment active survey line distance distance per ZOI per day
days a (km) day (km) (km\2\)
----------------------------------------------------------------------------------------------------------------
Fugro SPR EAH 2D Sparker.................... 13 1,700 133.4 119.3
----------------------------------------------------------------------------------------------------------------
Marine Mammal Occurrence
In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020)
represent the best available information regarding marine mammal
densities in the survey area. The density data presented by Roberts et
al. (2016, 2017, 2018, 2020) incorporates aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporates
data from 8 physiographic and 16 dynamic oceanographic and biological
covariates, and controls for the influence of sea state, group size,
availability bias, and perception bias on the probability of making a
sighting. These density models were originally developed for all
cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In
subsequent years, certain models have been updated based on additional
data as well as certain methodological improvements. More information
is available online at https://
[[Page 43223]]
seamap.env.duke.edu/models/Duke/ EC/. Marine mammal density estimates
in the survey area (animals/km\2\) were obtained using the most recent
model results for all taxa (Roberts et al., 2016, 2017, 2018, 2020).
The updated models incorporate additional sighting data, including
sightings from NOAA's Atlantic Marine Assessment Program for Protected
Species (AMAPPS) surveys.
Monthly density grids (e.g., rasters) for each species were
overlain with the Survey Area and values from all grid cells that
overlapped the Survey Area were averaged to determine monthly mean
density values for each species. Monthly mean density values within the
Survey Area were averaged by season (Winter [December, January,
February], Spring [March, April, May], Summer [June, July, August],
Fall [September, October, November]) to provide seasonal density
estimates. Since the HRG surveys would only occur during summer and
fall, only those values were used in the take estimation analysis.
Within each survey segment (Wind Development Area and offshore export
cable corridor), the highest seasonal density estimates during the
duration of the proposed survey were used to estimate take.
Take Calculation and Estimation
Here we describe how the information provided above is brought
together to produce a quantitative take estimate.
For most species, the authorized take amount is equal to the
calculated take amount resulting from the following equation: D x ZOI x
13 days. We note the densities provided in Table 5 represent the number
of animals/100 km; therefore, the density is normalized to 1km in the
equation. However, for some species, this equation does not reflect
those species that can travel is large groups--an important parameter
to consider that is not captured by density values. The equation also
does not capture the propensity of some delphinid species to be
attracted to the vessel and bowride. Therefore, to account for these
real-world situations, the authorized take is a product of group size.
For large groups of spotted and short beaked common dolphins knowing
their affinity for bow riding (and therefore coming very close to the
vessel), Kitty Hawk Wind assumed one group could be taken each day of
sparker operations (13 days). Based on previous survey data, as
described in previous monitoring reports, Kitty Hawk Wind assumes an
average group size for spotted dolphins is 16 in the survey area. For
common dolphins, the overall average reported group size was 4 in all
survey areas but the average group size during the geotechnical surveys
was 17 individuals. Therefore, in this case, Kitty Hawk Wind assumed a
group of 17 common dolphins could be taken on any given day of sparker
operation. For Risso's dolphin and pilot whales, one group is
anticipated to be taken over the 13 days of sparker operations. Average
group size for these species are 25 and 20, respectively (Reeves et al.
2002). Take for all other species is a reflection of the calculated
take. Given the timing and location of the surveys, Kitty Hawk Wind is
not requesting, nor are we proposing to authorize, take of NARWs or sei
whales. Table 5 provides the amount of take authorized in the IHA.
Table 5--Marine Mammal Density and Take Estimates
----------------------------------------------------------------------------------------------------------------
Max avg
seasonal
Species Stock density Calculated Authorized Percent of
(animals/ 100 take take population
km\2\) \1\
----------------------------------------------------------------------------------------------------------------
Humpback whale................ Gulf of Maine... 0.084 1.297 1 <1
Fin whale..................... Western North 0.171 2.648 3 <1
Atlantic.
Minke whale................... Canadian East 0.105 1.634 2 <1
Coast.
Pilot whales.................. Western North 0.073 1.139 \3\ 20 <1
Atlantic.
Harbor porpoise............... Gulf of Maine/ 0.033 0.510 1 <1
Bay of Fundy.
Bottlenose dolphin \2\........ Western North 7.913 122.725 123 <1
Atlantic,
offshore.
Common dolphin................ Western North 1.583 24.555 \4\ 221 <1
Atlantic.
Atlantic spotted dolphin...... Western North 7.669 118.937 \4\ 208 <1
Atlantic.
Risso's dolphin............... Western North 0.058 0.893 \4\ 25 <1
Atlantic.
----------------------------------------------------------------------------------------------------------------
\1\ Density values from Duke University (Roberts et al. 2016b, 2017, 2018, 2020).
\2\ Estimates based on bottlenose dolphin stock preferred water depths (Reeves et al. 2002; Waring et al. 2016).
\3\ Roberts (2018) only provides density estimates for ``generic'' pilot whales and seals; therefore, an equal
potential for takes has been assumed either for species or stocks within the larger group. The take adjusted
from calculated value to account for encountering one group over the course of the 13 days of sparker use.
\4\ Take adjusted from calculated take to account for encountering one group on each of the 13 days of sparker
use.
Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which
[[Page 43224]]
may consider such things as cost and impact on operations.
Mitigation for Marine Mammals and Their Habitat
NMFS proposes that the following mitigation measures be implemented
during Kitty Hawk Wind's planned marine site characterization surveys.
Marine Mammal Shutdown Zones
An immediate shutdown of the Sparker would be required if a marine
mammal is sighted entering or within its respective exclusion zone
(Table 6). The vessel operator must comply immediately with any call
for shutdown by the Lead PSO. Any disagreement between the Lead PSO and
vessel operator should be discussed only after shutdown has occurred.
Subsequent restart of the survey equipment can be initiated if the
animal has been observed exiting its respective exclusion zone or until
an additional time period has elapsed (i.e., 30 minutes for all other
species). Table 6 provides the required shutdown zones.
Table 6--Shutdown Zones During Sparker Use
------------------------------------------------------------------------
Shutdown
Species zone (m)
------------------------------------------------------------------------
ESA-listed marine mammals.................................... 500
Non-ESA marine mammals \1\................................... 100
------------------------------------------------------------------------
\1\ If a delphinid from specified genera is visually detected
approaching the vessel (i.e., to bow ride) or towed equipment,
shutdown is not required.
Pre-Clearance of the Shutdown Zones
Kitty Hawk Wind would implement a 30-minute pre-clearance period of
the shutdown zones prior to the initiation of ramp-up of HRG equipment.
During this period, the exclusion zone will be monitored by the PSOs,
using the appropriate visual technology. Ramp-up may not be initiated
if any marine mammal(s) is within its respective shutdown zone. If a
marine mammal is observed within the shutdown zone during the pre-
clearance period, ramp-up may not begin until the animal(s) has been
observed exiting its respective shutdown zone or until an additional
time period has elapsed with no further sighting (i.e., 15 minutes for
small odontocetes, and 30 minutes for all other species). Kitty Hawk
Wind must clear an area of 500 m for all ESA-listed marine mammals and
100 m for all other marine mammals around the sparker prior to
commencing a survey (or when a break in operation greater than 30
minutes occurs).
Shutdown Procedures
The vessel operator must comply immediately with any call for
shutdown by the Lead PSO. Any disagreement between the Lead PSO and
vessel operator should be discussed only after shutdown has occurred.
Subsequent restart of the survey equipment can be initiated if the
animal has been observed exiting its respective shutdown zone or the
relevant time period has lapsed without re-detection (15 minutes for
small odontocetes and seals, and 30 minutes for all other species).
The shutdown requirement would be waived for small delphinids of
the following genera: Delphinus, Stenella (frontalis only), and
Tursiops. Specifically, if a delphinid from the specified genera s
visually detected approaching the vessel (i.e., to bow ride) or towed
equipment, shutdown is not required. Furthermore, if there is
uncertainty regarding identification of a marine mammal species (i.e.,
whether the observed marine mammal(s) belongs to one of the delphinid
genera for which shutdown is waived), PSOs must use best professional
judgement in making the decision to call for a shutdown. Additionally,
shutdown is required if a delphinid detected in the exclusion zone and
belongs to a genus other than those specified.
If the acoustic source is shut down for reasons other than
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it
may be activated again only if the PSOs have maintained constant
observation and the shutdown zone is clear of marine mammals. If the
source is turned off for more than 30 minutes, it may only be restarted
after PSOs have cleared the shutdown zones for 30 minutes.
If a species for which authorization has not been granted, or, a
species for which authorization has been granted but the authorized
number of takes have been met, approaches or is observed within the
Level B harassment zone (445 m), shutdown would be required.
Ramp-Up
The Fugro SPR EAH 2D Sparker operates on a binary on/off switch and
thus ramp-up is not technically feasible for this piece of equipment.
Vessel Strike Avoidance
Kitty Hawk Wind will ensure that vessel operators and crew maintain
a vigilant watch for marine mammals and slow down or stop their vessels
to avoid striking these species. All personnel responsible for
navigation and marine mammal observation duties will receive site-
specific training on marine mammals sighting/reporting and vessel
strike avoidance measures. Vessel strike avoidance measures would
include the following, except under circumstances when complying with
these requirements would put the safety of the vessel or crew at risk:
<bullet> Vessel operators and crews must maintain a vigilant watch
for all protected species and slow down, stop their vessel, or alter
course, as appropriate and regardless of vessel size, to avoid striking
any protected species. A visual observer aboard the vessel must monitor
a vessel strike avoidance zone based on the appropriate separation
distance around the vessel (distances stated below). Visual observers
monitoring the vessel strike avoidance zone may be third-party
observers (i.e., PSOs) or crew members, but crew members responsible
for these duties must be provided sufficient training to (1)
distinguish protected species from other phenomena and (2) broadly to
identify a marine mammal as a right whale, other whale (defined in this
context as sperm whales or baleen whales other than right whales), or
other marine mammal;
<bullet> All vessels (e.g., source vessels, chase vessels, supply
vessels), regardless of size, must observe a 10-knot speed restriction
in the unlikely scenario a NARW dynamic management area (DMA) is in
effect;
<bullet> All vessels must reduce their speed to 10 knots or less
when mother/calf pairs, pods, or large assemblages of cetaceans are
observed near a vessel underway;
<bullet> All vessels must maintain a minimum separation distance of
500 m from all ESA-listed marine mammals. If a whale is observed but
cannot be confirmed as a species other than an ESA-listed whale, the
vessel operator must assume that it is an ESA-listed whale and take
appropriate action;
<bullet> All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 100 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);
<bullet> When marine mammals are sighted while a vessel is
underway, the vessel shall take action as necessary to avoid violating
the relevant separation distance (e.g., attempt to remain parallel to
the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area). If marine mammals are
sighted within the relevant separation distance, the vessel must reduce
speed and shift the engine to neutral, not engaging the engines
[[Page 43225]]
until animals are clear of the area. This does not apply to any vessel
towing gear or any vessel that is navigationally constrained; and
<bullet> These requirements do not apply in any case where
compliance would create an imminent and serious threat to a person or
vessel or to the extent that a vessel is restricted in its ability to
maneuver and, because of the restriction, cannot comply.
Project-specific training will be conducted for all vessel crew
prior to the start of a survey and during any changes in crew such that
all survey personnel are fully aware and understand the mitigation,
monitoring, and reporting requirements. Prior to implementation with
vessel crews, the training program will be provided to NMFS for review
and approval. Confirmation of the training and understanding of the
requirements will be documented on a training course log sheet. Signing
the log sheet will certify that the crew member understands and will
comply with the necessary requirements throughout the survey
activities.
Based on our evaluation of Kitty Hawk Wind's proposed measures,
NMFS has determined that the mitigation measures provide the means of
effecting the least practicable impact on marine mammal species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.
Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
planned action area. Effective reporting is critical both to compliance
as well as ensuring that the most value is obtained from the required
monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
<bullet> Mitigation and monitoring effectiveness.
Monitoring Measures
Visual monitoring will be performed by qualified, NMFS-approved
PSOs, the resumes of whom will be provided to NMFS for review and
approval prior to the start of survey activities. Kitty Hawk Wind would
employ independent, dedicated, trained PSOs, meaning that the PSOs must
(1) be employed by a third-party observer provider, (2) have no tasks
other than to conduct observational effort, collect data, and
communicate with and instruct relevant vessel crew with regard to the
presence of marine mammals and mitigation requirements (including brief
alerts regarding maritime hazards), and (3) have successfully completed
an approved PSO training course appropriate for their designated task.
The PSOs will be responsible for monitoring the waters surrounding
each survey vessel to the farthest extent permitted by sighting
conditions, including exclusion zones, during all HRG survey
operations. PSOs will visually monitor and identify marine mammals,
including those approaching or entering the established exclusion zones
during survey activities. It will be the responsibility of the Lead PSO
on duty to communicate the presence of marine mammals as well as to
communicate the action(s) that are necessary to ensure mitigation and
monitoring requirements are implemented as appropriate.
During all HRG survey operations (e.g., any day on which use of an
HRG source is planned to occur), a minimum of one PSO must be on duty
during daylight operations on each survey vessel, conducting visual
observations at all times on all active survey vessels during daylight
hours (i.e., from 30 minutes prior to sunrise through 30 minutes
following sunset). Two PSOs will be on watch during nighttime
operations. The PSO(s) would ensure 360[deg] visual coverage around the
vessel from the most appropriate observation posts and would conduct
visual observations using binoculars and/or night vision goggles and
the naked eye while free from distractions and in a consistent,
systematic, and diligent manner. PSOs may be on watch for a maximum of
4 consecutive hours followed by a break of at least 2 hours between
watches and may conduct a maximum of 12 hours of observation per 24-
hour period. In cases where multiple vessels are surveying
concurrently, any observations of marine mammals would be communicated
to PSOs on all nearby survey vessels.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
proximity to exclusion zones. Reticulated binoculars must also be
available to PSOs for use as appropriate based on conditions and
visibility to support the sighting and monitoring of marine mammals.
During nighttime operations, night-vision goggles with thermal clip-ons
and infrared technology would be used. Position data would be recorded
using hand-held or vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state 3
or less), to the maximum extent practicable, PSOs would also conduct
observations when the acoustic source is not operating for comparison
of sighting rates and behavior with and without use of the active
acoustic sources. Any observations of marine mammals by crew members
aboard any vessel associated with the survey would be relayed to the
PSO team.
Data on all PSO observations would be recorded based on standard
PSO collection requirements. This would include dates, times, and
locations of survey operations; dates and times of observations,
location and weather; details of marine mammal sightings (e.g.,
species, numbers, behavior); and details of any observed marine mammal
behavior that occurs (e.g., noted behavioral disturbances).
[[Page 43226]]
Reporting Measures
Within 90 days after completion of survey activities or expiration
of this IHA, whichever comes sooner, a final technical report will be
provided to NMFS that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring, summarizes
the number of marine mammals observed during survey activities (by
species, when known), summarizes the mitigation actions taken during
surveys (including what type of mitigation and the species and number
of animals that prompted the mitigation action, when known), and
provides an interpretation of the results and effectiveness of all
mitigation and monitoring. Any recommendations made by NMFS must be
addressed in the final report prior to acceptance by NMFS. All draft
and final marine mammal and acoustic monitoring reports must be
submitted to <a href="/cdn-cgi/l/email-protection#b5e5e79bfce1e59bf8dadbdcc1dac7dcdbd2e7d0c5dac7c1c6f5dbdad4d49bd2dac3"><span class="__cf_email__" data-cfemail="5e0e0c70170a0e70133130372a312c3730390c3b2e312c2a2d1e30313f3f70393128">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#773e23275933161b0e371918161659101801"><span class="__cf_email__" data-cfemail="5a130e0a741e3b36231a34353b3b743d352c">[email protected]</span></a>.
The report must contain at minimum, the following:
<bullet> PSO names and affiliations;
<bullet> Dates of departures and returns to port with port name;
<bullet> Dates and times (Greenwich Mean Time) of survey effort and
times corresponding with PSO effort;
<bullet> Vessel location (latitude/longitude) when survey effort
begins and ends; vessel location at beginning and end of visual PSO
duty shifts;
<bullet> Vessel heading and speed at beginning and end of visual
PSO duty shifts and upon any line change;
<bullet> Environmental conditions while on visual survey (at
beginning and end of PSO shift and whenever conditions change
significantly), including wind speed and direction, Beaufort sea state,
Beaufort wind force, swell height, weather conditions, cloud cover, sun
glare, and overall visibility to the horizon;
<bullet> Factors that may be contributing to impaired observations
during each PSO shift change or as needed as environmental conditions
change (e.g., vessel traffic, equipment malfunctions); and
<bullet> Survey activity information, such as type of survey
equipment in operation, acoustic source power output while in
operation, and any other notes of significance (i.e., pre-clearance
survey, ramp-up, shutdown, end of operations, etc.).
If a marine mammal is sighted, the following information should be
recorded:
<bullet> Watch status (sighting made by PSO on/off effort,
opportunistic, crew, alternate vessel/platform);
<bullet> PSO who sighted the animal;
<bullet> Time of sighting;
<bullet> Vessel location at time of sighting;
<bullet> Water depth;
<bullet> Direction of vessel's travel (compass direction);
<bullet> Direction of animal's travel relative to the vessel;
<bullet> Pace of the animal;
<bullet> Estimated distance to the animal and its heading relative
to vessel at initial sighting;
<bullet> Identification of the animal (e.g., genus/species, lowest
possible taxonomic level, or unidentified); also note the composition
of the group if there is a mix of species;
<bullet> Estimated number of animals (high/low/best);
<bullet> Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
<bullet> Description (as many distinguishing features as possible
of each individual seen, including length, shape, color, pattern, scars
or markings, shape and size of dorsal fin, shape of head, and blow
characteristics);
<bullet> Detailed behavior observations (e.g., number of blows,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior);
<bullet> Animal's closest point of approach and/or closest distance
from the center point of the acoustic source;
<bullet> Platform activity at time of sighting (e.g., deploying,
recovering, testing, data acquisition, other); and
<bullet> Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration,
etc.) and time and location of the action.
Although not anticipated, if a NARW is observed at any time by PSOs
or personnel on any project vessels, during surveys or during vessel
transit, Kitty Hawk Wind must immediately report sighting information
to the NMFS NARW Sighting Advisory System: (866) 755-6622. NARW
sightings in any location must also be reported to the U.S. Coast Guard
via channel 16.
In the event that Kitty Hawk Wind personnel discover an injured or
dead marine mammal, Kitty Hawk Wind would report the incident to the
NMFS Office of Protected Resources (OPR) and the NMFS Southeast Marine
Mammal Stranding Network within 24 hours. The report would include the
following information:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition if
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.
In the unanticipated event of a ship strike of a marine mammal by
any vessel involved in the activities covered by the IHA, Kitty Hawk
Wind would report the incident to the NMFS OPR and the NMFS Southeast
Marine Mammal Stranding Network within 24 hours. The report would
include the following information:
<bullet> Time, date, and location (latitude/longitude) of the
incident;
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Vessel's speed during and leading up to the incident;
<bullet> Vessel's course/heading and what operations were being
conducted (if applicable);
<bullet> Status of all sound sources in use;
<bullet> Description of avoidance measures/requirements that were
in place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
<bullet> Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
<bullet> Estimated size and length of animal that was struck;
<bullet> Description of the behavior of the marine mammal
immediately preceding and following the strike;
<bullet> If available, description of the presence and behavior of
any other marine mammals immediately preceding the strike;
<bullet> Estimated fate of the animal (e.g., dead, injured but
alive, injured and moving, blood or tissue observed in the water,
status unknown, disappeared); and
<bullet> To the extent practicable, photographs or video footage of
the animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number
[[Page 43227]]
of takes alone is not enough information on which to base an impact
determination. In addition to considering estimates of the number of
marine mammals that might be ``taken'' through harassment, NMFS
considers other factors, such as the likely nature of any responses
(e.g., intensity, duration), the context of any responses (e.g.,
critical reproductive time or location, migration), as well as effects
on habitat, and the likely effectiveness of the mitigation. We also
assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS's implementing regulations (54 FR
40338; September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the environmental baseline (e.g., as reflected in the
regulatory status of the species, population size and growth rate where
known, ongoing sources of human-caused mortality, or ambient noise
levels).
To avoid repetition, our analysis applies to all the species listed
in Table 5, given that NMFS expects the anticipated effects of the
planned survey to be similar in nature. NMFS does not anticipate that
serious injury or mortality would occur as a result from HRG surveys,
even in the absence of mitigation, and no serious injury or mortality
is authorized. As discussed in the Potential Effects of Specified
Activities on Marine Mammals and their Habitat section, non-auditory
physical effects and vessel strike are not expected to occur. NMFS
expects that all potential takes would be in the form of short-term
Level B behavioral harassment in the form of temporary avoidance of the
area or decreased foraging (if such activity was occurring), reactions
that are considered to be of low severity and with no lasting
biological consequences (e.g., Southall et al., 2007). Even repeated
Level B harassment of some small subset of an overall stock is unlikely
to result in any significant realized decrease in viability for the
affected individuals, and thus would not result in any adverse impact
to the stock as a whole. As described previously due to the nature of
the operations, Level A harassment is not expected even in the absence
of mitigation. The small size of the Level A harassment zones and the
required shutdown zones for certain activities further bolster this
conclusion. In addition to being temporary, the maximum expected Level
B harassment zone around a survey vessel is 445 m, producing expected
effects of particularly low severity. Therefore, the ensonified area
surrounding each vessel is relatively small compared to the overall
distribution of the animals in the area and their use of the habitat.
Feeding behavior is not likely to be significantly impacted as prey
species are mobile and are broadly distributed throughout the survey
area; therefore, marine mammals that may be temporarily displaced
during survey activities are expected to be able to resume foraging
once they have moved away from areas with disturbing levels of
underwater noise. Because of the temporary nature of the disturbance
and the availability of similar habitat and resources in the
surrounding area, the impacts to marine mammals and the food sources
that they utilize are not expected to cause significant or long-term
consequences for individual marine mammals or their populations. There
are no rookeries, mating or calving grounds known to be biologically
important to marine mammals within the planned survey area at the time
of survey (the biologically important area (BIA) for NARWs is for a
time period outside the proposed survey time period) and there are no
primary feeding areas known to be biologically important to marine
mammals within the planned survey area. In addition, there is no
designated critical habitat for any ESA-listed marine mammals in the
planned survey area.
NMFS expects that takes would be in the form of short-term Level B
behavioral harassment by way of brief startling reactions and/or
temporary vacating of the area, or decreased foraging (if such activity
was occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals would only be exposed briefly to a small ensonified area that
might result in take. Additionally, required mitigation measures (e.g.,
shutdown) would further reduce exposure to sound that could result in
more severe behavioral harassment. In summary, and as described above,
the following factors primarily support our determination that the
impacts resulting from this activity are not expected to adversely
affect the species or stock through effects on annual rates of
recruitment or survival:
<bullet> No mortality or serious injury is anticipated or
authorized;
<bullet> No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, or proposed to be authorized;
<bullet> Take is anticipated to be primarily Level B behavioral
harassment consisting of brief startling reactions and/or temporary
avoidance of the survey area and could occur over a very short time
period (13 days);
<bullet> No areas of particular importance to marine mammals (e.g.,
BIA, critical habitat) occur within the survey area; and
<bullet> Impacts on marine mammal habitat and species that serve as
prey species for marine mammals are expected to be minimal and the
alternate areas of similar habitat value for marine mammals are readily
available.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the proposed monitoring and
mitigation measures, NMFS finds that the total marine mammal take from
the proposed activity will have a negligible impact on all affected
marine mammal species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities. For this IHA, take of
all species or stocks is below one third of the estimated stock
abundance (in fact, take of individuals is less than 7 percent of the
abundance for all affected stocks).
Based on the analysis contained herein of the proposed activity
(including the proposed mitigation and monitoring measures) and the
anticipated take of marine mammals, NMFS finds that small numbers of
marine mammals will be taken relative to the population size of the
affected species or stocks.
[[Page 43228]]
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 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 whenever we propose to authorize take for
endangered or threatened species.
On June 29, 2021, NMFS Greater Atlantic Regional Fisheries Office
(GARFO) completed programmatic consultation pursuant to section 7 of
the ESA concerning the effects of certain site assessment and site
characterization activities to be carried out to support the siting of
offshore wind energy development projects off the U.S. Atlantic coast.
The consultation concluded that marine site assessment surveys, such as
those proposed by Kitty Hawk Wind, may affect but are not likely to
adversely affect, ESA-listed marine mammals provided the project design
criteria and best management practices identified in that consultation
are followed. The scope of Kitty Hawk Wind's surveys fall within the
scope of the activities analyzed in that consultation and NMFS has
included a provision in the IHA that all consultation project design
criteria (PDCs) and best management practices (BMPs) be adhered to.
Consideration of potential issuance of IHA by NMFS OPR for Survey
Activities was also included; therefore, NMFS action of issuing an IHA
to Kitty Hawk Wind is covered by the 2021 programmatic consultation.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NAO 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 IHA qualifies to be categorically excluded from further
NEPA review.
Authorization
NMFS has issued an IHA to Kitty Hawk Wind for the potential
harassment of small numbers of nine species marine mammal species
incidental to conducting marine site characterization surveys offshore
of Virginia and North Carolina provided the mitigation, monitoring and
reporting requirements contained within the IHA are followed.
Dated: July 27, 2021.
Angela Somma,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2021-16774 Filed 8-5-21; 8:45 am]
BILLING CODE 3510-22-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.