Notice2022-05102
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Offshore From New York to Massachusetts
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
March 11, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that NMFS has issued a Renewal incidental harassment authorization (IHA) to [Oslash]rsted to incidentally harass marine mammals incidental to marine site characterization surveys offshore from New York to Massachusetts.
Full Text
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<title>Federal Register, Volume 87 Issue 48 (Friday, March 11, 2022)</title>
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[Federal Register Volume 87, Number 48 (Friday, March 11, 2022)]
[Notices]
[Pages 13975-13983]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-05102]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB797]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Offshore From New York to Massachusetts
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of Renewal incidental harassment authorization
(IHA).
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA), as amended, notification is hereby given
that NMFS has issued a Renewal incidental harassment authorization
(IHA) to [Oslash]rsted to incidentally harass marine mammals incidental
to marine site characterization surveys offshore from New York to
Massachusetts.
DATES: This Renewal IHA is valid from the date of issuance through
September 24, 2022.
FOR FURTHER INFORMATION CONTACT: Carter Esch, Office of Protected
Resources, NMFS, (301) 427-8421. Electronic copies of the original
application, renewal request, and supporting documents (including NMFS
Federal Register notices of the original proposed and final
authorizations, and the previous IHA), as well as a list of the
references cited in this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D)
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon request, the incidental, but not
intentional, taking of small numbers of marine mammals by U.S. citizens
who engage in a specified activity (other than commercial fishing)
within a specified geographical region if certain findings are made and
either regulations are proposed or, if the taking is limited to
harassment, a notice of a proposed incidental take authorization is
provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to here as ``mitigation
measures''). Monitoring and reporting of such takings are also
required. The meaning of key terms such as ``take,'' ``harassment,''
and ``negligible impact'' can be found in section 3 of the MMPA (16
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e)
indicate that IHAs may be renewed for additional periods not to exceed
one year for each reauthorization. In the notice of proposed IHA for
the initial authorization, NMFS described the circumstances under which
we would consider issuing a Renewal IHA for this activity, and
requested public comment on a potential renewal under those
circumstances. Specifically, on a case-by-case basis, NMFS may issue a
one-time one-year Renewal IHA following notice to the public providing
an additional 15 days for public comments when (1) up to another year
of identical, or nearly identical, activities as described in the
Detailed Description of Specified Activities section of the initial IHA
issuance notice is planned or (2) the activities as described in the
Detailed Description of Specified Activities section of the initial IHA
issuance notice would not be completed by the time the initial IHA
expires and a renewal would allow for completion of the activities
beyond that described in the DATES section of the initial IHA issuance,
provided all of the following conditions are met:
(1) A request for renewal is received no later than 60 days prior
to the needed Renewal IHA effective date (recognizing that the Renewal
IHA expiration date cannot extend beyond one year from expiration of
the initial IHA).
(2) The request for renewal must include the following:
<bullet> An explanation that the activities to be conducted under
the requested Renewal IHA are identical to the activities analyzed
under the initial IHA, are a subset of the activities, or include
changes so minor (e.g., reduction in pile size) that the changes do not
affect the previous analyses, mitigation and monitoring requirements,
or take estimates (with the exception of reducing the type or amount of
take).
<bullet> A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized.
(3) Upon review of the request for renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
An additional public comment period of 15 days (for a total of 45
days), with direct notice by email, phone, or postal service to
commenters on the initial IHA, is provided to allow for any additional
comments on the proposed
[[Page 13976]]
Renewal IHA. A description of the renewal process may be found on our
website at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>.
History of Request
On September 25, 2020, NMFS issued an IHA to [Oslash]rsted to take
marine mammals incidental to marine site characterization survey
activities offshore from New York to Massachusetts in the areas of the
Commercial Lease of Submerged Lands for Renewable Energy Development on
the Outer Continental Shelf (OCS-A 0486/0517, OCS-A 0487, and OCS-A
0500) (Lease Areas) and along potential submarine export cable routes
(ECRs) to landfall locations from New York to Massachusetts (85 FR
63508, October 8, 2020), effective from September 25, 2020 through
September 24, 2021. Work under the initial IHA was completed, and on
July 8, 2021, NMFS received an application for the renewal of that
initial IHA to cover a second year of identical work. [Oslash]rsted
later communicated that marine site characterization surveys under the
Renewal IHA would not begin until 2022. As described in the application
for renewal, the activities for which incidental take is requested are
identical to those covered by the initial authorization. As required,
the applicant also provided a monitoring report (available at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-site-characterization">https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-site-characterization</a>) which confirms that
the applicant has implemented the required mitigation and monitoring,
and which also shows that no impacts of a scale or nature not
previously analyzed or authorized have occurred as a result of the
activities conducted. The notice of the proposed Renewal IHA was
published on January 6, 2022 (87 FR 756).
Description of the Specified Activities and Anticipated Impacts
[Oslash]rsted plans to conduct a second year of marine site
characterization surveys, using high-resolution geophysical (HRG)
equipment, within the Lease Areas--located approximately 14 miles (mi)
(22 kilometers (km)) south of Martha's Vineyard, Massachusetts at its
closest point--and proposed ECRs from the Lease Areas to potential
shore landing locations for submarine cables associated with offshore
wind development along the coast from New York to Massachusetts. The
purpose of the marine site characterization surveys is to support site
assessment, siting, and engineering design of offshore project
facilities, including wind turbine generators (WTGs), offshore
substation(s), and submarine cables within the Lease and proposed ECR
Areas. The activities covered under the initial IHA have been
completed. [Oslash]rsted requested a renewal of the initial IHA issued
by NMFS in September 2020 on the basis that they plan to conduct up to
another year of identical activities in the same area as described in
the Detailed Description of the Specified Activities section of the
Federal Register notice for the initial proposed IHA (85 FR 48179,
August 10, 2020), which can be found at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
In their 2020 IHA application, [Oslash]rsted estimated it would
conduct surveys at a rate of 70 kilometers (km) per survey day.
[Oslash]rsted defined a survey day as a 24-hour activity day, which
could be the sum of multiple partial surveys if less than 70 km is
surveyed in 24 hours. Based on the planned 24-hour operations, the
survey activities for all survey areas would require 1,302 survey days
if one vessel were surveying continuously. However, [Oslash]rsted
proposed to use an estimated five vessels simultaneously from June 1
through December 31, with a maximum of no more than nine vessels.
Therefore, [Oslash]rsted planned to complete all survey effort in one
year, prior to the expiration of the initial IHA on September 24, 2021;
all of the work addressed under the initial IHA was completed prior to
the initial IHA expiration date. The Renewal IHA will authorize take,
by Level B harassment only (in the form of behavioral disturbance), of
15 species/stocks of marine mammals for a second year of identical
survey activities to be completed no later than September 24, 2022, in
the same area, using survey methods identical to those described in the
initial IHA application; therefore, the anticipated effects on marine
mammals and the affected stocks also remain the same. The amount of
take, by Level B harassment, requested for the Renewal IHA is identical
to that authorized in the initial IHA. All active acoustic sources,
mitigation, and monitoring measures are exactly as described in the
Federal Register notices of the issued initial IHA (85 FR 63508,
October 8, 2020; 85 FR 71058, November 6, 2020).
Detailed Description of the Activity
A detailed description of the marine site characterization survey
activities for which incidental take is planned may be found in the
Federal Register notice of the proposed IHA (85 FR 48179; August 10,
2020) for the initial authorization. As described above, [Oslash]rsted
completed the survey activities analyzed for the initial IHA by the
date the IHA expired (September 24, 2021). The surveys [Oslash]rsted
plans to conduct under this renewal will be identical to those
described in the initial IHA. The location and nature of the
activities, including the types of equipment planned for use, are
identical to those described in the previous notices.
Description of Marine Mammals
A description of the marine mammals in the area of the activities
for which take is authorized, including information on abundance,
status, distribution, and hearing, may be found in the Federal Register
notice of the proposed IHA for the initial authorization (85 FR 48179;
August 10, 2020). NMFS has reviewed the monitoring data from the
initial IHA, recent draft Stock Assessment Reports (SARs), Technical
Reports (e.g., Pace 2021), information on relevant Unusual Mortality
Events (UMEs), and other scientific literature, and determined that
neither this nor any other information alters which species or stocks
have the potential to be affected or the pertinent information in the
Description of the Marine Mammals in the Area of Specified Activity
contained in the supporting documents for the initial IHA.
The draft 2021 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>) state that estimated abundance has
increased for the Western North Atlantic stocks of common dolphins
(from 172,825 (CV = 0.21) to 172,974 (CV = 0.21)), and gray seals (from
27,131 (CV = 0.19) to 27,300 (CV = 0.22)). Abundance estimates have
decreased for the following species: The Western North Atlantic stocks
of fin whales (from 7,418 (CV = 0.25) to 6,802 (CV = 0.24)), Risso's
dolphins (from 35,293 (CV = 0.19 to 35,215 (CV = 0.19)), harbor seals
(from 75,834 (CV = 0.15) to 61,336 (CV = 0.22)), and the Canadian East
coast stock of minke whales (from 24,202 (CV = 0.3) to 21,968
(CV=0.31)). The abundance estimate for the Western North Atlantic stock
of North Atlantic right whales has also been updated in the draft 2021
SAR, which states that right whale abundance has decreased from 428 to
368 (95 percent CI 356-378) individuals (Hayes et al., 2021).
[[Page 13977]]
NMFS has determined that neither the updated abundance information
presented above nor any other new information affects which species or
stocks have the potential to be affected or the pertinent information
in the Description of the Marine Mammals in the Area of Specified
Activity contained in the supporting documents for the initial IHA.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activity on
marine mammals and their habitat for the activities for which take is
authorized may be found in the Federal Register notices of the proposed
(85 FR 48179; August 10, 2020) and final (85 FR 63508, October 8, 2020;
85 FR 71058, November 6, 2020) initial IHAs. NMFS has reviewed the most
recent information relevant to this Renewal IHA (monitoring data from
the initial IHA, recent draft SARs, Technical Reports (e.g., Pace
2021), information on relevant Unusual Mortality Events, and other
scientific literature and data), and determined that there is no new
information that affects our initial analysis of impacts on marine
mammals and their habitat.
Estimated Take
A detailed description of the methods and inputs used to estimate
take for the specified activity are found in the Notices of the
proposed (85 FR 48179; August 10, 2020) and final (85 FR 63508; October
8, 2020) IHAs for the initial authorization. Specifically, the acoustic
source types, source levels, and days of operation applicable to this
authorization remain unchanged from the previously issued initial IHA.
Similarly, the methodology for calculating take, and thus stocks taken,
methods of take and type of take (i.e., Level B harassment in the form
of behavioral disturbance) remain unchanged from the initial IHA, as do
the number of takes for each species or stock, which are indicated
below in Table 2.
Table 2--Authorized Take by Level B Harassment
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Species Abundance Authorized Percent
estimate \1\ take population
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale............ Eubalaena glacialis..... 368 37 10.05
Humpback whale........................ Megaptera novaeangliae.. 1,396 21 1.50
Fin whale............................. Balaenoptera physalus... 6,802 36 0.53
Sei whale............................. Balaenoptera borealis... 6,292 2 0.0
Minke whale........................... Balaenoptera 21,968 13 0.06
acutorostrata.
Sperm whale........................... Physeter macrocephalus.. 4,349 3 0.07
Long-finned pilot whale............... Globicephala melas...... 39,215 69 0.18
Bottlenose dolphin (W.N.A. offshore).. Tursiops truncatus...... 62,851 419 0.67
Common dolphin........................ Delphinus delphis....... 172,974 2,211 1.28
Atlantic white-sided dolphin.......... Lagenorhynchus acutus... 93,233 418 0.45
Atlantic spotted dolphin.............. Stenella frontalis...... 35,215 7 0.02
Risso's dolphin....................... Grampus griseus......... 35,493 30 0.08
Harbor porpoise....................... Phocoena phocoena....... 95,543 916 0.96
Harbor seal........................... Phoca vitulina.......... 61,336 215 0.36
Gray seal............................. Halichoerus grypus...... 27,300 215 0.79
----------------------------------------------------------------------------------------------------------------
W.N.A. = Western North Atlantic.
\1\ Abundance estimates have been updated from the initial IHA (85 FR 63508; October 8, 2020) using the 2021
Draft SARs (Hayes et al., 2021).
Description of Mitigation, Monitoring and Reporting Measures
The mitigation, monitoring, and reporting measures included as
requirements in this authorization are identical to those included in
the Federal Register notice announcing the issuance of the initial IHA
(85 FR 63508, October 8, 2020), and the discussion of the least
practicable adverse impact included in that document and the notice of
the proposed Renewal IHA remains applicable. All mitigation,
monitoring, and reporting measures in the initial IHA are carried over
to this Renewal IHA and summarized below:
<bullet> Ramp-up: A ramp-up procedure must be used for HRG
equipment capable of adjusting energy levels at the start or re-start
of survey activities.
<bullet> Protected Species Observers (PSOs): A minimum of one NMFS-
approved PSO must be on duty and conducting visual observations at all
times during daylight hours (i.e., from 30 minutes prior to sunrise
through 30 minutes following sunset), and two active duty PSOs must
conduct observations 30 minutes prior to and during nighttime ramp-ups
and operation of HRG equipment.
<bullet> Exclusion Zones (EZ): Marine mammal EZs must be
established around the HRG survey equipment and monitored by PSOs
during marine site characterization surveys as follows: A 500-m EZ for
North Atlantic right whales during use of impulsive acoustic sources
(e.g., boomers and/or sparkers) and non-impulsive, non-parametric sub-
bottom profilers (e.g., Chirps); and a 100-m EZ for all other marine
mammals during use of impulsive acoustic sources (e.g., boomers and/or
sparkers).
<bullet> Pre-Operation Clearance Protocols: [Oslash]rsted must
implement a 30-minute pre-start clearance period of the specified
clearance zones (CZs; 500 m for North Atlantic right whales, 100 m for
all other marine mammals) prior to the initiation of ramp-up of
boomers, sparkers, and non-impulsive, non-parametric sub-bottom
profilers (e.g., Chirps). During this period, the CZs must be monitored
by PSOs using the appropriate visual technology. Ramp-up must not be
initiated if any marine mammal(s) is within its respective CZ. If a
marine mammal is observed within its respective CZ during the pre-start
clearance period, ramp-up must not begin until the animal(s) has been
observed exiting its respective CZ, or until an additional period has
elapsed with no further sighting (i.e., 15 minutes for small
odontocetes and seals, and 30 minutes for all other species). Pre-
clearance and ramp-up, but not shutdown, will be required when using
only non-impulsive, non-parametric sub-bottom profilers (e.g., Chirps),
except in the case that a North Atlantic
[[Page 13978]]
right whale is observed within the 500-m CZ.
<bullet> Shutdown of HRG Equipment: If an HRG source is active and
a marine mammal is observed entering or within a relevant EZ (as
described above), an immediate shutdown of the HRG survey equipment is
required. Note that this shutdown requirement is waived for certain
genera of small delphinids. 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 has been met, approaches or
is observed within the Level B harassment zone (54 m, non-impulsive;
141 m impulsive), shutdown must occur.
<bullet> Vessel strike avoidance measures: Vessel strike avoidance
measures include, but are not limited to, vessel separation distances
for large whales (500 m North Atlantic right whales; 100 m other large
whales; 50 m other cetaceans and pinnipeds), restricted vessel speeds,
and operational maneuvers.
<bullet> Seasonal Operating Requirements: [Oslash]rsted must limit
to three the number of survey vessels that operate concurrently from
January 1 through May 31 within the Lease Areas (OSC-A 0486/0517, OCS-A
0487, and OCS-A 500) and ECR Area north of the Lease Areas up to, but
not including, coastal and bay waters. [Oslash]rsted must operate
either a single vessel, two vessels concurrently, or, for short
periods, no more than three survey vessels concurrently in the areas
described above from January 1 through May 31. This seasonal
restriction will help to reduce both the number and intensity of North
Atlantic right whale takes by Level B harassment.
<bullet> Reporting: [Oslash]rsted must submit a final technical
report within 90 days following completion of the surveys. In the event
that [Oslash]rsted personnel discover an injured or dead marine mammal,
[Oslash]rsted must report the incident to NMFS Office of Protected
Resources (OPR) (<a href="/cdn-cgi/l/email-protection#f0a0a2deb9a4a0debd9f9e99849f82999e97a295809f828483b09e9f9191de979f86"><span class="__cf_email__" data-cfemail="b3e3e19dfae7e39dfedcdddac7dcc1daddd4e1d6c3dcc1c7c0f3dddcd2d29dd4dcc5">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#4c25383c62293f2f240c22232d2d622b233a"><span class="__cf_email__" data-cfemail="7e170a0e501b0d1d163e10111f1f50191108">[email protected]</span></a>) and to the New England/Mid-Atlantic Regional
Stranding Coordinator through the NOAA Fisheries Marine Mammal and Sea
Turtle Stranding and Entanglement Hotline (866-755-6622) as soon as
feasible. In the event of a ship strike of a marine mammal by any
vessel involved in the activities covered by the authorization,
[Oslash]rsted must report the incident immediately to NMFS OPR and to
the New England/Mid-Atlantic Regional Stranding Coordinator through the
NOAA Fisheries Marine Mammal and Sea Turtle Stranding and Entanglement
Hotline. [Oslash]rsted must immediately cease all project activities
until NMFS OPR is able to review the circumstances of the incident and
determine what, if any, additional measures are appropriate to ensure
compliance with the terms of the proposed Renewal IHA.
Comments and Responses
A notice of NMFS' proposal to issue a Renewal IHA to [Oslash]rsted
was published in the Federal Register on January 6, 2022 (87 FR 756).
That notice either described, or referenced descriptions of,
[Oslash]rsted's activity, the marine mammal species that may be
affected by the activity, anticipated effects on marine mammals and
their habitat, estimated amount and manner of take, and proposed
mitigation, monitoring and reporting measures. NMFS received comments
from a group of environmental non-governmental organizations (ENGOs)
including the Natural Resources Defense Council, Conservation Law
Foundation, Defenders of Wildlife, Whale and Dolphin Conservation,
National Wildlife Federation, NY4WHALES, and the Southern Environmental
Law Center. However, the comments consisted of a short cover letter
with a subject line and comments referring to the issuance of an IHA
for the construction of a different project (87 FR 806; January 6,
2022), and an attached set of previously submitted recommendations
related to right whale mitigation for the site assessment and
characterization phases and construction phases of offshore wind
development more generally. That other project occupies a small portion
of [Oslash]rsted's survey area for this Renewal IHA, and the relevant
issued IHA would be effective during a different time from when this
Renewal IHA would be effective. NMFS thus did not receive any comments
relevant to the issuance of this Renewal IHA. Nevertheless, given the
more general nature of some of the issues raised in the ENGOs' appended
recommendations, NMFS reviewed the comments. To the extent that some of
the issues may be relevant to this Renewal IHA, the pertinent comments
and our responses are summarized below.
Comment 1: The ENGOs objected to NMFS' process to consider
extending any 1-year IHA with a truncated 15-day comment period,
claiming that it is contrary to the MMPA.
Response: NMFS' IHA renewal process meets all statutory
requirements. All IHAs issued, whether an initial IHA or a Renewal IHA,
are valid for a period of not more than one year. The public has at
least 30 days to comment on all proposed IHAs, with a cumulative total
of 45 days for IHA Renewals. As noted above, the Request for Public
Comments section in the notice of the proposed initial IHA made clear
that the agency was seeking comment on both the proposed initial IHA
and the potential issuance of a renewal for this project. Because any
renewal (as explained in the Request for Public Comments section) is
limited to another year of identical or nearly identical activities in
the same location (as described in the Description of the Proposed
Activity section) or the same activities that were not completed within
the 1-year period of the initial IHA, reviewers have the information
needed to effectively comment on both the immediate proposed IHA and a
possible 1-year renewal, should the IHA holder choose to request one.
While there are additional documents submitted with a renewal
request, for a qualifying renewal these are limited to documentation
that NMFS will make available and use to verify that the activities are
identical to those in the initial IHA, are nearly identical such that
the changes would have either no effect on impacts to marine mammals or
decrease those impacts, or are a subset of activities already analyzed
and authorized but not completed under the initial IHA. NMFS will also
confirm, among other things, that the activities will occur in the same
location; involve the same species and stocks; provide for continuation
of the same mitigation, monitoring, and reporting requirements; and
that no new information has been received that would alter the prior
analysis. The renewal request must also contain a preliminary
monitoring report, but that is to verify that effects from the
activities do not indicate impacts of a scale or nature not previously
analyzed. The additional 15-day public comment period provides the
public an opportunity to review these few documents, provide any
additional pertinent information, and comment on whether they think the
criteria for a renewal have been met. NMFS also will provide direct
notice of the proposed renewal to those who commented on the initial
IHA, to provide an opportunity to submit any additional comments.
Between the initial 30-day comment period on these same activities and
the additional 15 days, the total comment period for a renewal is 45
days.
In addition to the IHA Renewal process being consistent with all
requirements under section 101(a)(5)(D), it is also consistent with
Congress's intent for issuance of IHAs to the extent reflected in
statements in the legislative history of the MMPA. Through the
provision for renewals in the
[[Page 13979]]
regulations, description of the process and express invitation to
comment on specific potential renewals in the Request for Public
Comments section of each proposed IHA, the description of the process
on NMFS' website, further elaboration on the process through responses
to comments such as this, posting of substantive documents on the
agency's website, and provision of 30 or 45 days for public review and
comment on all proposed initial IHAs and renewals, respectively, NMFS
has ensured that the public ``is invited and encouraged to participate
fully in the agency decision-making process.''
In prior responses to comments about IHA Renewals (e.g., 84 FR
52464, October 02, 2019; 85 FR 53342, August 28, 2020; 86 FR 33664,
June 25, 2021; 87 FR 806, January 6, 2022), 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. For
more information, NMFS has published a description of the renewal
process on our website (available at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>).
Comment 2: The ENGOs recommended that NMFS should require all
project vessels to adhere to a 10-knot (18.5 km/hr) speed restriction
at all times, and in all places except in limited circumstances where
the best available scientific information demonstrates that whales do
not occur in the area. As a mechanism for modifying this speed
restriction, the ENGOs suggest that the project proponent develop and
implement, in consultation with NMFS, an Adaptive Plan that is
scientifically proven to be equally or more effective than a 10-knot
(18.5 km/hr) speed restriction.
Response: [Oslash]rsted communicated to NMFS that marine site
characterization vessels (both survey and supporting) travel at 10
knots or less while in transit and during the surveys. During active
surveying, speeds are generally significantly less (in the range of 3-5
knots) although this is dependent on the type of equipment and survey.
NMFS has analyzed the potential for ship strike resulting from
[Oslash]rsted's activity and has determined that the mitigation
measures specific to ship strike avoidance are sufficient to avoid the
potential for ship strike. These include, but are not limited to the
survey vessel crew members responsible for navigation duties must
receive site-specific training on marine mammal sighting/reporting and
vessel strike avoidance measures; the vessel operator and crew must
maintain a vigilant watch for all large whale species (including the
North Atlantic right whale); a requirement that all vessel operators
comply with the 10 knot (18.5 km/hour) or less speed restriction while
underway in any established Seasonal Management Areas (SMAs), or
Dynamic Management Areas (DMAs); a requirement that all vessel
operators reduce vessel speed to 10 knots (18.5 km/hour) or less when
any large whale, mother/calf pairs, pods, or large assemblages of non-
delphinid cetaceans are observed within 100 m of an underway vessel; a
requirement that all survey vessels maintain a separation distance of
at least 500 m from any sighted North Atlantic right whale; a
requirement that, if underway, vessels must steer a course away from
any sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less
until the 500-m minimum separation distance has been established; a
requirement that all vessels must maintain a minimum separation
distance of 100 m from sperm whales and other baleen whales; and a
requirement that all vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50 m from all
other marine mammals, with an understanding that at times this may not
be possible (e.g., for animals that approach the vessel). We have
determined the existing ship strike avoidance measures are sufficient
to ensure the least practicable adverse impact on species or stocks and
their habitat. Further, NMFS is not aware of a wind industry vessel
(e.g., marine site characterization survey vessel or wind energy
vessels used in European wind project construction and operation)
reporting a ship strike to date.
Regarding the ENGOs' suggestion that project proponents should
coordinate with NMFS to develop an Adaptive Plan for potential
modification of vessel speed restrictions for future projects, NMFS
will consider specific proposals for the development, quantitative
evaluation, and implementation of such a Plan, should that information
become available in the future.
Comment 3: The ENGOs recommend that NMFS prohibit site
characterization surveys during times of highest risk to North Atlantic
right whales, which they define as times of highest relative density of
animals during foraging and migration, and times when mother-calf
pairs, pregnant females, surface active groups, or aggregations of
three or more whales are, or, are expected to be, present. The ENGOs
suggest that these time periods should be defined based on the best
available scientific information at the time of the survey activity.
Finally, the ENGOs suggest that the development and scientific
validation of a near real-time monitoring system and mitigation
protocol for North Atlantic right whales and other large whale species
could be used to dynamically manage the timing of site assessment and
characterization activities to ensure that those activities are
undertaken during times of lowest risk for all relevant larges whales
species.
Response: NMFS is requiring [Oslash]rsted to operate no more than
three concurrent survey vessels, with HRG survey equipment operating at
or below 180 kHz, from January 1 through May 31 within the Lease Areas
and ECRs, not including coastal and bay waters. This seasonal
restriction aligns with the timeframe during which North Atlantic right
whale densities are highest in the project area, based on Roberts
(2020) and Robert et al. (2021), which incorporated more recent survey
data (through 2018) and that for the first time included data from the
2011-2015 surveys of the MA and RI/MA wind energy areas (WEAs; Kraus et
al. 2016) as well as the 2017-2018 continuation of those surveys, known
as the Marine Mammal Surveys of the Wind Energy Areas (MMS-WEA)
(Quintana et al., 2018). We believe these models provide the best
available scientific information to quantify temporal and spatial
patterns of North Atlantic right whale occurrence in the project area.
The seasonal restriction will limit the number and intensity of
potential take by Level B harassment resulting from exposure to active
HRG equipment (i.e., boomers, sparkers, and Chirps). NMFS is also
requiring [Oslash]rsted to comply with vessel speed restrictions
associated with SMAs, and DMAs if any are established near the project
area. Prior to and during survey operations, [Oslash]rsted must consult
the NOAA Right Whale Sightings Advisory System and WhaleMap for
situational awareness of recent sighting locations. Should North
Atlantic right whales be observed while HRG survey equipment is active,
[Oslash]rsted must abide by a mandatory 500-m shutdown zone, which is
more than three times as large as the greatest distance to the Level B
harassment isopleth (141 m). Finally, the ship strike avoidance and
minimum separation requirements described in response to Comment 2
further
[[Page 13980]]
minimize the potential impacts of site characterization surveys on
North Atlantic rights whales.
The ENGOs suggested that a real-time monitoring system and
mitigation protocol for North Atlantic right whales would be useful to
dynamically manage the timing of site characterization survey
activities, although it is not clear if the suggested system and
protocol is based on acoustic or visual monitoring, or both. NMFS is
generally supportive of these concepts. A network of near real-time
baleen whale monitoring devices are active or have been tested in
portions of New England and Canadian waters. These systems employ
various digital acoustic monitoring instruments that have been placed
on autonomous platforms including slocum gliders, wave gliders,
profiling floats and moored buoys. Systems that have proven to be
successful will likely see increased use as operational tools for many
whale monitoring and mitigation applications. In 2020, NMFS convened a
workshop to address objectives related to monitoring North Atlantic
right whales. The NMFS publication ``Technical Memorandum
NMFS[hyphen]OPR[hyphen]64: North Atlantic Right Whale Monitoring and
Surveillance: Report and Recommendations of the National Marine
Fisheries Service's Expert Working Group'', available at: <a href="https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whale-monitoring-and-surveillance-report-and-recommendations">https://www.fisheries.noaa.gov/resource/document/north-atlantic-right-whale-monitoring-and-surveillance-report-and-recommendations</a>, summarizes
information from the workshop and presents the Expert Working Group's
recommendations for a comprehensive monitoring strategy to guide future
analyses and data collection. Among the numerous recommendations found
in the report, the Expert Working Group encouraged the widespread
deployment of auto-buoys to provide near real-time detections of North
Atlantic right whale calls that visual survey teams can then respond to
for collection of identification photographs or biological samples.
The type of dynamic monitoring system and mitigation protocol
suggested by the commenters has not been proposed by any applicant,
including [Oslash]rsted, when applying for an IHA to conduct the type
of work analyzed here. As discussed above, the seasonal restriction
(January 1 through May 31) already serves to reduce temporal and
spatial overlap between [Oslash]rsted's marine site characterization
surveys and times during which North Atlantic right whale occurrence is
expected to be highest in the project area. In addition, NMFS cannot
require project proponents to be part of a monitoring network such as
the one described above until such a network of monitoring devices is
available. However, NMFS will consider how to best incorporate the use
of such systems in the future should such a network be developed.
Comment 4: The ENGOs recommended that site characterization surveys
should not be initiated within 1.5 hours of civil sunset or in times of
low visibility when the visual clearance zone and exclusion zone cannot
be visually monitored, as determined by the lead PSO.
Response: NMFS acknowledges the limitations inherent in detection
of marine mammals at night. However, no injury is expected to result
from exposure to HRG equipment, even in the absence of mitigation,
given the characteristics of the sources planned for use (supported by
the very small estimated Level A harassment zones; i.e., <54 m for all
impulsive sources). The ENGOs do not provide any support for the
apparent contention that injury is a potential outcome of these
activities. Regarding Level B harassment, any potential impacts would
be limited to short-term behavioral responses. The commenters establish
that the status of North Atlantic right whales in particular is
precarious. NMFS agrees in general with the discussion of this status
provided by the commenters. Note that NMFS considers impacts from this
category of survey operations to be near de minimis, with the potential
for Level A harassment for any species to be discountable and the
severity of Level B harassment (and, therefore, the impacts of the take
event on the affected individual), if any, to be low. Commenters
provide no evidence to the contrary. NMFS is also requiring
[Oslash]rsted to employ a PSO during nighttime hours who must have
access to night-vision equipment (i.e., night-vision goggles and/or
infrared technology). Given these factors, NMFS has determined that
more restrictive mitigation requirements are not warranted.
Restricting surveys in the manner suggested by the commenters may
reduce marine mammal exposures by some degree in the short term, but
would not result in any significant reduction in either intensity or
duration of noise exposure over the course of the surveys. In fact, the
restrictions recommended by the commenters could result in the surveys
spending increased total time on the water introducing noise into the
marine environment, which may result in greater overall exposure to
sound for marine mammals; thus, the commenters have not demonstrated
that such a requirement would result in a net benefit. Furthermore,
restricting the ability of the applicant to begin operations only
during daylight hours would have the potential to result in lengthy
shutdowns of the survey equipment, which could result in the applicant
failing to collect the data they have determined is necessary and,
subsequently, the need to conduct additional surveys in the future.
This would result in significantly increased costs incurred by the
applicant. Thus, the restriction suggested by the commenters would not
be practicable for the applicant to implement. In consideration of the
likely effects of the activity on marine mammals absent mitigation,
potential unintended consequences of the measures as proposed by the
commenters, and practicability of the recommended measures for the
applicant, NMFS has determined that restricting operations as
recommended is not warranted or practicable in this case.
Comment 5: The ENGOs recommended that NMFS should require project
proponents to implement visual clearance and exclusion zones of at
least 500 m for all large whale species, except North Atlantic right
whales, for which they recommended 1,000-m visual and acoustic
clearance and exclusion zones. To the monitor the acoustic zones, the
ENGOs recommend utilizing near real-time passive acoustic monitoring
(PAM) from a vessel other than the dedicated survey vessel, or from a
stationary unit.
Response: NMFS disagrees with these recommendations for this
Renewal IHA. Regarding the clearance and shutdown zone recommendations,
we note that the 500-m exclusion zone for North Atlantic right whales
exceeds the modeled distance to the Level B harassment isopleth (141 m)
by a substantial margin. Given that calculated Level B harassment
isopleths are likely conservative, and NMFS considers impacts from HRG
survey activities to be near de minimis, a 100-m shutdown zone for
other marine mammal species (including large whales and strategic
stocks of small cetaceans) is sufficiently protective to effect the
least practicable adverse impact on those species and stocks. Further,
no injury is expected to result even in the absence of mitigation,
given the characteristics of the sources planned for use (supported by
the very small estimated Level A harassment zones; i.e., <36.5 m for
all impulsive sources).
There are several reasons why we do not agree that use of PAM is
warranted
[[Page 13981]]
for [Oslash]rsted's 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 for
[Oslash]rsted's HRG survey activities is limited. We note first using a
towed passive acoustic sensor(s) to detect baleen whales (including
North Atlantic right whales) is not ideal for monitoring low-frequency
vocalizing baleen whales because calls are masked by ship and flow
noise, and vessel presence can alter vocal behavior of the study
animals (Lesage et al., 1999; Thode, 2004; Norris et al., 2012; Guerra
et al., 2014; Heinemann et al., 2016).
Vessels produce low-frequency noise, primarily through propeller
cavitation, with the main energy in the 5-300 Hertz (Hz) frequency
range. Source levels range from approximately 140 to 195 decibels (dB)
re 1 micropascal ([micro]Pa) 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 (i.e., most baleen whale
vocalizations). Whales are routinely detected acoustically using moored
systems and sonobuoys, or using autonomous gliders. However, these
platforms are all quiet. Providers of observer services, including PAM,
report that they have never detected a baleen whale (other than rare
detections of humpback whales, which have significantly higher
frequency content in their calls) using towed PAM.
Even if a right whale could be detected using towed PAM, the area
expected to be ensonified above the Level B harassment threshold is
relatively small (<=141 m) and, 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, supporting
the limited value of PAM for use in reducing take with smaller zones.
In addition, if a PAM system was deployed from a secondary vessel, that
vessel will still have to travel at 4 knots to accompany the survey
vessel, leading to the same limitations when using towed PAM. Finally,
if a stationary PAM unit were deployed (assuming its location is within
relatively close proximity to the starting position of the survey
vessel), the unit would have to be equipped to localize North Atlantic
right whale calls, for example, to positions within the clearance and
exclusion zones (regardless of size) relative to the changing position
of a transiting survey vessel. Even if localization is possible, it
becomes impracticable once the vessel moves out of the detection and
localization range of the stationary unit.
Many of the ENGO recommendations included acoustic monitoring of
clearance and exclusion zones. Given that the effects to marine mammals
from the types of surveys authorized in this IHA are expected to be
limited to a small amount of low-level behavioral harassment, even in
the absence of mitigation, the additional benefit anticipated for North
Atlantic right whales by adding this detection method would be
essentially non-existent. Given the lack of efficacy, the logistical
challenges, and the cost 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. For the reasons described
above, NMFS' responses to additional comments do not include references
to acoustic monitoring during site characterization surveys. Please see
the ENGOs' full comment letter for information regarding their general
recommendations for acoustic monitoring, which can be found here:
<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-site-characterization">https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-site-characterization</a>.
Comment 6: The ENGOs recommended that NMFS should require project
proponents to (1) conduct visual monitoring of the clearance zone
beginning 30 minutes prior to commencement or re-initiation of, and
continuing throughout, survey activities, (2) delay survey activities
if a North Atlantic right whale, or other large whale species, is
detected within the relevant clearance zone, (3) shutdown survey
activities upon a visual detection of any of these species within the
species-specific exclusion zone and, if shutdown occurs, (4) resume or
initiate survey activities only after the lead PSO confirms that no
North Atlantic right whales or other large whale species have been
visually detected in the relevant clearance zones for 30 minutes.
The ENGOs suggested that these measures should be implemented
during site characterization activities with noise levels that could
result in injury or harassment to large whales.
Response: No injury is expected to result from site
characterization surveys, even in the absence of mitigation, given the
characteristics of the sources planned for use (supported by the very
small estimated Level A harassment zones; i.e., <36.5 m for all
impulsive sources). The ENGOs do not provide any support for the
apparent contention that injury is a potential outcome of these
activities. Only take by Level B harassment is anticipated and
authorized.
NMFS does agree that monitoring of a clearance zone should begin 30
minutes prior to commencement or resumption of use of HRG survey
equipment that may incidentally harass marine mammals following a delay
or shutdown. NMFS also agrees that visual detection of a species
(including North Atlantic right whales) within its respective clearance
zone during the 30-minute clearance period or exclusion zone when
acoustic sources are active should trigger a delay or shutdown,
respectively, of survey activities. Finally, as suggested by the ENGOs,
in order for survey activities to commence or resume, the lead PSO must
confirm that no North Atlantic right whale or other baleen whale has
been sighted in the clearance zone during the clearance period. Thus,
these measures are required by all authorizations for take incidental
to site characterization activities.
Comment 7: The ENGOs stated that it is their general view that NMFS
must require a minimum of four PSOs on survey vessels following a two-
on, two-off rotation, each responsible for scanning no more than
180[deg] of the horizon.
Response: NMFS typically requires that a single PSO must be
stationed at the highest vantage point and engaged in general 360-
degree scanning during daylight hours. Although NMFS acknowledges that
the single PSO cannot reasonably maintain observation of the entire
360-degree area around the vessel, it is reasonable to assume that the
single PSO engaged in continual scanning of such a small area (i.e.,
500-m exclusion zone for North Atlantic right whales, which is more
than three times the maximum 141-m Level B harassment zone) will be
successful in detecting marine mammals that are available for
observation at the surface. Further, [Oslash]rsted is required to
deploy two PSOs for nighttime survey activities, during which the PSOs
will have access to night vision devices.
The monitoring report for the initial IHA, as well as monitoring
reports for
[[Page 13982]]
similar marine site assessment and characterization surveys (which can
be found here <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>), submitted to NMFS have demonstrated that PSOs active only
during daylight operations are able to detect marine mammals and
implement appropriate mitigation measures. Nevertheless, as night
vision technology has continued to improve, NMFS has adapted its
practice. NMFS has included a requirement in the initial IHA and this
Renewal IHA that night-vision equipment (i.e., night-vision goggles
and/or infrared technology) must be available for use during nighttime
monitoring. Under the issued Renewal IHA, survey operators are not
required to provide PSOs with infrared devices during the day but
observers are not prohibited from employing them. Given that use of
infrared devices for detecting marine mammals during the day has been
shown to be helpful under certain conditions, NMFS will consider
requiring them to be made accessible for daytime PSOs in the future, as
more information becomes available regarding this technology. NMFS is
also requiring that all PSOs be equipped with binoculars and have the
ability to estimate distances to marine mammals located in proximity to
the vessel and/or exclusion zones. We have determined that the PSO
requirements in the IHA are sufficient to ensure the least practicable
adverse impact on the affected species or stocks and their habitat.
Comment 8: The ENGOs recommended that NMFS should require operation
of sub-bottom profiling systems at the lowest practicable source level
for the survey objectives.
Response: [Oslash]rsted has selected the equipment necessary to
achieve their objectives. We have evaluated the effects expected as a
result of use of this equipment, made the necessary findings, and
imposed mitigation requirements sufficient to achieve the least
practicable adverse impact on the affected species and stocks of marine
mammals. It is not within NMFS' purview to make judgments regarding
what constitutes the ``lowest practicable source level'' for an
operator's survey objectives.
Comment 9: The ENGOs recommended that (1) NMFS require project
proponents to report observation(s) of a North Atlantic right whale(s)
to NMFS or the USCG as soon as possible, but no later than the end of
the PSO shift during which the observation(s) occurred, and (2)
[Oslash]rsted should be required to immediately report an entangled or
dead North Atlantic right whale or other large whale species to NMFS
OPR, NOAA Fisheries Marine Mammal and Sea Turtle Stranding and
Entanglement Hotline (866-755-6622; also the North Atlantic Right Whale
Sighting Advisory System), or the USCG via available reporting systems
(e.g., phone, app, radio). In addition, the ENGOs encourage project
proponents to commit to supporting and participating in future
advancing/streamlining efforts for methods of reporting. Finally, the
ENGOs suggest that quarterly reports of PSO sightings data should be
made publicly available to inform marine mammal science and protection.
Response: NMFS agrees with the ENGOs' first and second
recommendations, hence the inclusion of these measures in both the
initial and Renewal IHAs. Regarding reporting methods, NMFS agrees with
the ENGOs and supports efforts to improve methods by which a sighting
of a live North Atlantic right whale, or entangled or dead North
Atlantic right whale (or other large whale), is reported by a project
proponent and we welcome specific proposals to do so. Finally, NMFS
does not concur with the suggestion that [Oslash]rsted should submit
quarterly PSO sightings data reports, and that these reports be made
publicly available. [Oslash]rsted is required to submit a final report
to NMFS within 90 days after completion of survey activities or
expiration of this IHA, whichever comes sooner. The report must fully
document the methods and monitoring protocols, summarize the data
recorded during monitoring, and describe, assess, and compare the
effectiveness of monitoring and mitigation measures. The ENGOs did not
provide specific examples regarding how making PSO sightings data
publicly available on a quarterly basis would inform marine mammal
science and protection in any meaningful way on this timescale. PSO
sightings data (as well as all of the additional information required
in a final report) are included in PSO monitoring reports from previous
marine site characterization surveys, including the PSO monitoring
report from the initial IHA that NMFS is renewing, which can be found
here: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. As
noted above, [Oslash]rsted is already required to immediately report
all North Atlantic right whale sightings to the NMFS North Atlantic
Right Whale Sighting Advisory System (866) 755-6622) and to the U.S.
Coast Guard via channel 16, providing mariners in the area with
awareness of North Atlantic right whale locations and, thus, the
opportunity to proactively reduce vessel speeds. In addition, daily
visual and acoustic detections of North Atlantic right whales and other
large whale species along the Eastern Seaboard, as well as Slow Zone
locations, are publicly available on WhaleMap (<a href="https://whalemap.org/WhaleMap/">https://whalemap.org/WhaleMap/</a>). Further, recent acoustic detections of North Atlantic right
whales and other large whale species are available to the public on
NOAA's Passive Acoustic Cetacean Map website <a href="https://apps-nefsc.fisheries.noaa.gov/pacm/#/narw">https://apps-nefsc.fisheries.noaa.gov/pacm/#/narw</a>. Given the open access to the
resources described above, NMFS does not concur that public access to
quarterly PSO reports is warranted and we have not included this
measure in the authorization.
Determinations
The survey activities proposed by [Oslash]rsted are identical to
those analyzed in the initial IHA, including the planned number of days
and location of activity, as are the method of taking and the effects
of the action. Therefore, the amount of authorized take is equal to
that authorized in the initial IHA. The mitigation measures and
monitoring and reporting requirements, as described above, are
identical to the initial IHA. The potential effect of [Oslash]rsted's
activities remains limited to Level B harassment in the form of
behavioral disturbance. In analyzing the effects of the activities in
the initial IHA, NMFS determined that [Oslash]rsted's activities would
have a negligible impact on the affected species or stocks and that the
authorized take numbers of each species or stock were small relative to
the relevant stocks (e.g., less than one-third of the abundance of all
stocks).
NMFS has concluded that there is no new information suggesting that
our analysis or findings should change from those reached for the
initial IHA. This includes consideration of Orsted's monitoring report,
the estimated abundances of five stocks (North Atlantic right whales,
fin whales, minke whales, Risso's dolphins, and harbor seals)
decreasing, and the estimated abundances of two stocks (common dolphins
and gray seals) increasing (Hayes et al., 2021). Based on the
information and analysis contained here and in the referenced
documents, NMFS has determined the following: (1) The required
mitigation measures will effect the least practicable adverse impact on
marine mammal species or stocks and
[[Page 13983]]
their habitat; (2) the authorized takes will have a negligible impact
on the affected marine mammal species or stocks; (3) the authorized
takes represent small numbers of marine mammals relative to the
affected stock abundances; (4) [Oslash]rsted's activities will not have
an unmitigable adverse impact on taking for subsistence purposes as no
relevant subsistence uses of marine mammals are implicated by this
action, and; (5) appropriate monitoring and reporting requirements are
included.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must evaluate our proposed action (i.e., issuance of incidental
harassment authorization) and alternatives with respect to potential
impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 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 Renewal IHA qualifies to be categorically
excluded from further NEPA review.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) requires that each Federal agency insure that any action
it authorizes, funds, or carries out is not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of designated critical
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS
consults internally, in this case with the NMFS Greater Atlantic
Regional Fisheries Office (GARFO), whenever we propose to authorize
take of endangered or threatened species.
The NMFS Office of Protected Resources is authorizing the
incidental take of four species of marine mammals that are listed under
the ESA: The North Atlantic right, fin, sei and sperm whale. We
requested initiation of consultation under Section 7 of the ESA with
NMFS GARFO on July 1, 2020, for issuance of the initial IHA.
Previously, BOEM consulted with NMFS GARFO under section 7 of the ESA
on commercial wind lease issuance and site assessment activities on the
Atlantic Outer Continental Shelf in Massachusetts, Rhode Island, New
York and New Jersey Wind Energy Areas. The NMFS GARFO issued a
Biological Opinion in 2013 concluding that these activities may
adversely affect but are not likely to jeopardize the continued
existence of the North Atlantic right, fin, sei and sperm whale. Upon
request from the NMFS Office of Protected Resources, NMFS GARFO issued
a Letter of Concurrence on September 24, 2020 concluding that the
initial IHA issuance fell under the scope of the 2013 Biological
Opinion and that the initial IHA issuance was not likely to adversely
affect ESA-listed marine mammal species. The proposed Renewal IHA
provides no new information about the effects of the action, nor does
it change the extent of effects of the action, or any other basis to
require reinitiation of consultation with NMFS GARFO; therefore, the
consultation and determinations for the initial IHA remains valid.
Renewal
NMFS has issued a Renewal IHA to [Oslash]rsted for the take of
marine mammals incidental to marine site characterization survey
activities offshore from New York to Massachusetts in the areas of the
Commercial Lease of Submerged Lands for Renewable Energy Development on
the Outer Continental Shelf (OCS-A 0486/0517, OCS-A 0487, and OCS-A
0500) (Lease Areas) and along potential submarine ECRs to landfall
locations from New York to Massachusetts, effective from the date of
issuance through September 24, 2022.
Dated: March 7, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-05102 Filed 3-10-22; 8:45 am]
BILLING CODE 3510-22-P
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