Notice2022-08653
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off New Jersey and New York for Atlantic Shores Offshore Wind, LLC
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
April 22, 2022
Effective
April 20, 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 an IHA to Atlantic Shores Offshore Wind, LLC to incidentally harass marine mammals during marine site characterization surveys off New Jersey and New York.
Full Text
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<title>Federal Register, Volume 87 Issue 78 (Friday, April 22, 2022)</title>
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[Federal Register Volume 87, Number 78 (Friday, April 22, 2022)]
[Notices]
[Pages 24103-24130]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-08653]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB775]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Off New Jersey and New York for Atlantic Shores Offshore Wind,
LLC
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an IHA to Atlantic Shores Offshore Wind, LLC to
incidentally harass marine mammals during marine site characterization
surveys off New Jersey and New York.
DATES: This Authorization is effective from April 20, 2022 through
April 19, 2023.
FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, 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.
The definitions of all applicable MMPA statutory terms cited above
are included in the relevant sections below.
Summary of Request
On August 16, 2021, NMFS received a request from Atlantic Shores
for an IHA to take marine mammals incidental to marine site
characterization surveys occurring in three locations (Lease Area and
Export Cable Routes (ECR) North and South) off of New Jersey and New
York in and around the area of Commercial Lease of Submerged Lands for
Renewable Energy Development on the Outer Continental Shelf Lease Area
(OCS)-A 0499. The application was deemed adequate and complete on
December 13, 2021. Atlantic Shores' request is for take of a small
number of 15 species of marine mammals (comprised of 16 stocks) by
Level B harassment only. Neither Atlantic Shores nor NMFS expects
serious injury or mortality to result from this activity; therefore, an
IHA is appropriate.
Description of Activities
Overview
As part of its overall marine site characterization survey
operations, Atlantic Shores will conduct high-resolution geophysical
(HRG) surveys in and around the Lease Area (OCS)-A 0499 and along
potential submarine cable routes (ECRs North and South) to a landfall
location in either New York or New Jersey.
The purpose of these surveys are to support the site
characterization, siting, and engineering design of offshore wind
facilities including wind turbine generators, offshore substations, and
submarine cables within the Lease Area and along export cable routes
(ECRs). As many as three survey vessels may operate concurrently. 360
days of survey days are planned with vessels operating for 24-hours as
part of the planned surveys (Table 1). Underwater sound resulting from
Atlantic Shores' planned site characterization survey activities,
specifically certain acoustic sources operating at <180 kilohertz
(kHz), has the potential to result in incidental take of marine mammals
in the form of behavioral harassment (Table 2).
Table 1--Number of Survey Days That Atlantic Shores Plans To Perform the
Described HRG Survey Activities
------------------------------------------------------------------------
Number of
active
Survey area survey days
expected
\1\
------------------------------------------------------------------------
Lease Area................................................. 120
ECR North.................................................. 180
ECR South.................................................. 60
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Total.................................................. 360
------------------------------------------------------------------------
\1\ Surveys in each area may temporally overlap; therefore, actual
number of days of activity in a given year would be less than 360.
[[Page 24104]]
Table 2--Summary of Representative Equipment Specifications With Operating Frequencies Below 180 kHz
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Operational
source level Beamwidth Typical pulse Pulse
HRG survey equipment (sub-bottom Representative Operating frequency ranges ranges durations RMS repetition
profiler) equipment type ranges (kHz) (dBRMS) \b\ (degrees) (millisecond) rate (Hz)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sparker (impulsive)................. Applied Acoustics Dura- 0.01 to 1.9.............. 203 180 3.4 2
Spark 240 \a\.
Geo Marine Geo-Source.. 0.2 to 5................. 195 180 7.2 0.41
CHIRPs (non-impulsive).............. Edgetech 2000-DSS...... 2 to 16.................. 195 24 6.3 10
Edgetech 216........... 2 to 16.................. 179 17, 20, or 24 10 10
Edgetech 424........... 4 to 24.................. 180 71 4 2
Edgetech 512i.......... 0.7 to 12................ 179 80 9 8
Pangeosubsea Sub-Bottom 4 to 12.5................ 190 120 4.5 44
Imager\TM\.
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Note--Two sources with potential for use by Atlantic Shores (i.e., the INNOMAR SES-2000 Medium-100 Parametric and the INNOMAR deep-36 Parametric) are
not expected to result in take due to their higher frequencies and extremely narrow beamwidths. Because of this, these sources were not considered
when calculating the Level B harassment isopleths and are not discussed further in this notice. Acoustic parameters on these parametric sub-bottom
profilers can be found in Atlantic Shores' IHA application on NMFS' website (<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>).
\a\ Atlantic Shores discussed with NMFS and include information in their application that while the Applied Acoustics Dura-Spark 240 is planned to be
used during survey activities, the equipment specifications and subsequent analysis are based on the SIG ELC 820 with a power level of 750 joules (J)
at a 5 meter depth (Crocker and Fratantonio (2016)). However, Atlantic Shores expects a more reasonable power level to be 500-600 J based on prior
experience with HRG surveys; 750 J was used as a worst-case scenario to conservatively account for take of marine mammals as these higher electrical
outputs would only be used in areas with denser substrates (700-800 J).
\b\ Root mean square (RMS) = 1 microPa.
Mitigation, monitoring, and reporting measures are described in
detail later in this document (please see Mitigation and Monitoring and
Reporting).
A detailed description of the planned surveys by Atlantic Shores
are provided in the Federal Register notice of the proposed IHA (87 FR
4200; January 27, 2022). Since that time, no changes have been made to
the survey activities. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for the
description of the specified activities.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Atlantic Shores was
published in the Federal Register on January 27, 2022 (87 FR 4200).
That proposed notice described, in detail, Atlantic Shores' activities,
the marine mammal species that may be affected by the activities, and
the anticipated effects on marine mammals. In that notice, we requested
public input on the request for authorization described therein, our
analyses, the proposed authorization, and any other aspect of the
notice of proposed IHA, and requested that interested persons submit
relevant information, suggestions, and comments. This proposed notice
was available for a 30-day public comment period.
NMFS received 11 individual comments from private citizens. Eight
of these expressed general opposition to or support for the IHA and the
underlying associated activities and two specifically addressed
concerns regarding construction of a wind energy facility itself, which
is outside the scope of NMFS' action considered herein. We do not
specifically address these comments, or non-substantive comments
expressing general opposition or support from private citizens, in
further detail. Additionally, NMFS received two letters from
environmental non-governmental organizations (eNGOs) (Oceana, Inc. and
Clean Ocean Action (COA)) and one letter from a local citizen group
(Save Long Beach Island (LBI)). All substantive comments, and NMFS'
responses, are provided below, and the letters are available online at:
<a href="http://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-0">www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-0</a>). Please review the
corresponding public comment link for full details regarding the
comments, letters, and underlying justification.
Comment 1: Oceana made comments objecting to NMFS' renewal process
regarding the extension of any one-year IHA with a truncated 15-day
public comment period, and suggested an additional 30-day public
comment period is necessary for any renewal request.
NMFS' response: NMFS' IHA renewal process meets all statutory
requirements. In prior responses to comments about IHA renewals (e.g.,
84 FR 52464; October 2, 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, 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.
The Notice of the proposed IHA published in the Federal Register on
January 27, 2022 (87 FR 4200) made clear that the agency was seeking
comment on the proposed IHA and the potential issuance of a renewal for
this survey. 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 1-year period of the
initial IHA, reviewers have the information needed to effectively
comment on both the immediate proposed IHA and a possible 1-year
renewal, should the IHA holder choose to request one in the coming
months.
While there 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
[[Page 24105]]
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' intent for issuance of IHAs to the extent reflected in
statements in the legislative history of the MMPA. Through the
provision for renewals in the regulations, description of the process
and express invitation to comment on specific potential renewals in the
Request for Public Comments section of each proposed IHA, the
description of the process on NMFS' website, further elaboration on the
process through responses to comments such as these, posting of
substantive documents on the agency's website, and provision of 30 or
45 days for public review and comment on all proposed initial IHAs and
Renewals respectively, NMFS has ensured that the public is ``invited
and encouraged to participate fully in the agency's decision-making
process'', as Congress intended.
Comment 2: Oceana and COA remarked that NMFS must utilize the best
available science. The commenters further suggest that NMFS has not
done so, specifically, referencing information regarding the NARW such
as updated population estimates and recent habitat usage patterns in
Atlantic Shores' survey area. The commenters specifically asserted that
NMFS is not using the best available science with regards to the North
Atlantic right whale (NARW) population estimate and state that NMFS
should be using the 336 estimate presented in the recent North Atlantic
Right Whale Report Card (<a href="https://www.narwc.org/report-cards.html">https://www.narwc.org/report-cards.html</a>).
NMFS' response: While NMFS agrees that the best available science
should be used for assessing NARW abundance estimates, we disagree that
the North Atlantic Right Whale Report Card (i.e., Pettis et al. (2022))
study represents the most recent and best available estimate for NARW
abundance. Rather the revised abundance estimate (368; 95 percent with
a confidence interval of 356-378) published by Pace (2021) (and
subsequently included in the 2021 draft Stock Assessment Reports (SARs;
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>)), which was used in the
proposed IHA, provides the most recent and best available estimate, and
introduced improvements to NMFS' right whale abundance model.
Specifically, Pace (2021) looked at a different way of characterizing
annual estimates of age-specific survival. NMFS considered all relevant
information regarding NARW, including the information cited by the
commenters. However, NMFS relies on the SAR. Recently (after
publication of the notice of proposed IHA), NMFS has updated its
species web page to recognize the population estimate for NARWs is now
below 350 animals (<a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>). We anticipate that this information will be
presented in the draft 2022 SAR. We note that this change in abundance
estimate would not change the estimated take of NARWs or authorized
take numbers, nor affect our ability to make the required findings
under the MMPA for Atlantic Shores' survey activities.
NMFS further notes that the commenters seem to be conflating the
phrase ``best available data'' with ``the most recent data.'' The MMPA
specifies that the ``best available data'' must be used, which does not
always mean the most recent. As is NMFS' prerogative, we referenced the
best available NARW abundance estimate of 368 from the draft 2021 SARs
as NMFS's determination of the best available data that we relied on in
our analysis. The Pace (2021) results strengthened the case for a
change in mean survival rates after 2010-2011, but did not
significantly change other current estimates (population size, number
of new animals, adult female survival) derived from the model.
Furthermore, NMFS notes that the SARs are peer reviewed by other
scientific review groups prior to being finalized and published and
that the North Atlantic Right Whale Report Card (Pettis et al., 2022)
does not undertake this process.
The commenters also noted their concern regarding NARW habitat
usage, stating that NMFS was not appropriately considering relevant
information on this topic. While this survey specifically intersects
migratory habitat for NARWs, year-round ``core'' NARW foraging habitat
(Oleson et al., 2020) located much further north in the southern area
of Martha's Vineyard and Nantucket Islands where both visual and
acoustic detections of NARWs indicate a nearly year-round presence
(Oleson et al., 2020). NMFS notes that prey for NARWs are mobile and
broadly distributed throughout the survey area; therefore, NARW
foraging efforts are not likely to be disturbed given the location of
these planned activities in relation to the broader area that NARWs
migrate through and the northern areas where NARWs primarily forage.
There is ample foraging habitat further north of this survey area that
will not be ensonified by the acoustic sources used by Atlantic Shores,
such as in the Great South Channel and Georges Bank Shelf Break feeding
biologically important area (BIA). Furthermore, and as discussed in the
proposed Notice, the spatial acoustic footprint of the survey is very
small relative to the spatial extent of the available foraging habitat.
Lastly, as we stated in the proposed Notice, any impacts to marine
mammals are expected to be temporary and minor and, given the relative
size of the survey area compared to the overall migratory route leading
to foraging habitat (which is not affected by the specified activity).
Comparatively, the survey area is approximately 5,868 square kilometers
(km\2\) and the NARW migratory BIA is 269,448 km\2\. Because of this,
and in context of the minor, low-level nature of the impacts expected
to result from the planned survey, such impacts are not expected to
result in disruption to biologically important behaviors.
Comment 3: Oceana noted that chronic stressors are an emerging
concern for NARW conservation and recovery, and stated that chronic
stress may result in energetic effects for NARWs. Oceana suggested that
NMFS has not fully considered both the use of the area and the effects
of both acute and chronic stressors on the health and fitness of NARWs,
as disturbance responses in NARWs could lead to chronic stress or
habitat displacement, leading to an overall decline in their health and
fitness.
NMFS' response: NMFS agrees with Oceana that both acute and chronic
stressors are of concern for NARW conservation and recovery. We
recognize that acute stress from acoustic exposure is one potential
impact of these surveys, and that chronic stress can have fitness,
reproductive, etc. impacts at the population-level scale. NMFS has
carefully reviewed the best available scientific information in
assessing impacts to marine mammals, and recognizes that the surveys
have the potential to impact marine mammals through behavioral effects,
stress responses, and auditory masking. However, NMFS does not expect
that the generally short-term, intermittent, and transitory marine site
characterization survey activities planned by Atlantic Shores would
create conditions of acute or chronic acoustic exposure leading to
long-term physiological stress responses in marine mammals. NMFS has
also prescribed a robust suite of mitigation measures, including
extended distance shutdowns for NARW, that are expected to further
reduce the duration and intensity of acoustic exposure, while limiting
the potential severity of any possible
[[Page 24106]]
behavioral disruption. The potential for chronic stress was evaluated
in making the determinations presented in NMFS's negligible impact
analyses. Because NARWs generally use this location in a transitory
manner, specifically for migration, any potential impacts from these
surveys are lessened for other behaviors due to the brief periods where
exposure is possible. In context of these expected low-level impacts,
which are not expected to meaningfully affect important behavior, we
also refer again to the large size of the migratory corridor (BIA of
269,448 km\2\) compared with the survey area (5,868 km\2\). Thus, the
transitory nature of NARWs at this location means it is unlikely for
any exposure to cause chronic effects as Atlantic Shores' planned
survey area and ensonified zones are much smaller than the overall
migratory corridor. Because of this, NMFS does not expect acute or
cumulative stress to be a detrimental factor to NARWs from Atlantic
Shores' described survey activities.
Comment 4: Oceana and COA asserted that NMFS must fully consider
the discrete effects of each activity and the cumulative effects of the
suite of approved, proposed and potential activities on marine mammals
and NARWs in particular and ensure that the cumulative effects are not
excessive before issuing or renewing an IHA.
NMFS' response: Neither the MMPA nor NMFS' codified implementing
regulations call for consideration of other unrelated activities and
their impacts on populations. The preamble for NMFS' implementing
regulations (54 FR 40338; September 29, 1989) states in response to
comments that the impacts from other past and ongoing anthropogenic
activities are to be incorporated into the negligible impact analysis
via their impacts on the baseline. Consistent with that direction, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline, e.g., as reflected in the density/distribution and status of
the species, population size and growth rate, and other relevant
stressors. The 1989 final rule for the MMPA implementing regulations
also addressed public comments regarding cumulative effects from
future, unrelated activities. There NMFS stated that such effects are
not considered in making findings under section 101(a)(5) concerning
negligible impact. In this case, this IHA, as well as other IHAs
currently in effect or proposed within the specified geographic region,
are appropriately considered an unrelated activity relative to the
others. The IHAs are unrelated in the sense that they are discrete
actions under section 101(a)(5)(D), issued to discrete applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of the specified activity or
class of activities that can be expected to result in incidental taking
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, Atlantic Shores was the applicant for the IHA, and we
are responding to the specified activity as described in that
application (and making the necessary findings on that basis).
Through the response to public comments in the 1989 implementing
regulations, NMFS also indicated (1) that we would consider cumulative
effects that are reasonably foreseeable when preparing a NEPA analysis,
and (2) that reasonably foreseeable cumulative effects would also be
considered under section 7 of the ESA for ESA-listed species, as
appropriate. Accordingly, NMFS has written Environmental Assessments
(EA) that addressed cumulative impacts related to substantially similar
activities, in similar locations, e.g., the 2017 Ocean Wind, LLC EA for
site characterization surveys off New Jersey; the 2018 Deepwater Wind
EA for survey activities offshore Delaware, Massachusetts, and Rhode
Island; the 2019 Avangrid EA for survey activities offshore North
Carolina and Virginia; and the 2019 Orsted EA for survey activities
offshore southern New England. Cumulative impacts regarding issuance of
IHAs for site characterization survey activities such as those planned
by Atlantic Shores have been adequately addressed under NEPA in prior
environmental analyses that support NMFS' determination that this
action is appropriately categorically excluded from further NEPA
analysis. NMFS independently evaluated the use of a categorical
exclusion for issuance of Atlantic Shores' IHA, which included
consideration of extraordinary circumstances. Please see our response
to Comment #21 below for more details.
Separately, the cumulative effects of substantially similar
activities in the same geographic region have been analyzed in the past
under section 7 of the ESA when NMFS has engaged in formal intra-agency
consultation, such as the 2013 programmatic Biological Opinion for BOEM
Lease and Site Assessment Rhode Island, Massachusetts, New York, and
New Jersey Wind Energy Areas (<a href="https://repository.library.noaa.gov/view/noaa/29291">https://repository.library.noaa.gov/view/noaa/29291</a>). Analyzed activities include those for which NMFS issued
Atlantic Shores' 2020 IHA and subsequent 2021 renewal IHA (85 FR 21198;
April 16, 2020 and 86 FR 21289; April 22, 2021), which are
substantially similar to those planned by Atlantic Shores under this
current IHA request. This Biological Opinion determined that NMFS'
issuance of IHAs for site characterization survey activities associated
with leasing, individually and cumulatively, are not likely to
adversely affect listed marine mammals. NMFS notes, that while issuance
of this IHA is covered under a different consultation, this BiOp
remains valid and the surveys currently planned by Atlantic Shores from
2022 to 2023 could have fallen under the scope of those analyzed
previously.
Comment 5: LBI has concluded that NMFS should include nearby survey
activities in the analysis of this IHAs, specifically activities
occurring in the Ocean Wind 1 (OCS-A 0498), as Atlantic Shores' survey
activities are occurring during similar timeframes in similar spatial
locations to the lease owned by Orsted Wind Power North America, LLC
(Orsted). They noted that this was specifically important given the
large number of offshore wind-related activities being considered in
the northeast region and to appropriately assess cumulative impacts
between projects.
NMFS' response: NMFS disagrees with LBI's statement that activities
occurring by Orsted and Atlantic Shores' should be considered together
in the MMPA action on that basis that they share a similar location
geographically. We reiterate that under the MMPA, we are required to
consider applications upon request. To date, NMFS has not received any
joint application from Orsted and Atlantic Shores regarding their site
characterization surveys off of New Jersey. While an individual company
owning multiple lease areas may apply for a single authorization to
conduct site characterization surveys across a combination of those
lease areas, such as what was done by Orsted in their recent surveys
from New York to Massachusetts (see 85 FR 63508, October 8, 2020; 87 FR
13975, March 11, 2022), this is not applicable in this case to the
leases owned by Atlantic Shores and Orsted found off New Jersey. In the
[[Page 24107]]
future, if applicants wish to undertake this approach, NMFS is open to
the receipt of joint applications and additional discussions on joint
actions.
Furthermore, NMFS notes that the site characterization surveys
covered under the current IHA (86 FR 26465; May 14, 2021) in Ocean
Wind's lease are due to expire on May 9, 2022. While Ocean Wind has
requested a renewal IHA and NMFS is seeking public comment on that
request (87 FR 21098; April 11, 2022), NMFS has not yet made a decision
to issue a final renewal IHA, entailing minimal current temporal
overlap in activities performed under this IHA by Atlantic Shores to
Ocean Wind's existing action (approximately 19 days of overlap).
However, NMFS again notes that these both of these actions (Atlantic
Shores' and Orsted's site characterization surveys) are occurring in
spatially distinct areas and that it is highly unlikely for both
entity's survey activities to occur in the same location at any one
time. NMFS continues to reaffirm that any other authorization issued to
Orsted relating to activities in OCS-A 0498 would be considered a
discrete activity (refer back to the discussion in Comment #4) with its
own separate and independent action.
Comment 6: Oceana states that NMFS must make an assessment of which
activities, technologies and strategies are truly necessary to provide
information to inform development of Atlantic Shores and which are not
critical, asserting that NMFS should prescribe the appropriate survey
techniques. In general, Oceana stated that NMFS must require that all
IHA applicants minimize the impacts of underwater noise to the fullest
extent feasible, including through the use of best available technology
and methods to minimize sound levels from geophysical surveys.
NMFS' response: The MMPA requires that an IHA include measures that
will effect the least practicable adverse impact on the affected
species and stocks and, in practice, NMFS agrees that the IHA should
include conditions for the survey activities that will first avoid
adverse effects on NARWs in and around the survey site, where
practicable, and then minimize the effects that cannot be avoided. NMFS
has determined that the IHA meets this requirement to effect the least
practicable adverse impact. Oceana does not make any specific
recommendations of measures to add to the IHA. As part of the analysis
for all marine site characterization survey IHAs, NMFS evaluated the
effects expected as a result of the specified activity, made the
necessary findings, and prescribed 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 may be appropriate techniques or technologies
for an operator's survey objectives.
Comment 7: Oceana suggests that PSOs complement their survey
efforts using additional technologies, such as infrared detection
devices when in low-light conditions.
NMFS' response: NMFS agrees with Oceana regarding this suggestion
and a requirement to utilize a thermal (infrared) device during low-
light conditions was included in the proposed Federal Register Notice.
That requirement is included as a requirement of the issued IHA.
Comment 8: Oceana and COA recommended that NMFS restrict all
vessels of all sizes associated with the proposed survey activities to
speeds less than 10 knots (kn) at all times due to the risk of vessel
strikes to NARWs and other large whales.
NMFS' response: While NMFS acknowledges that vessel strikes can
result in injury or mortality, we have analyzed the potential for ship
strike resulting from Atlantic Shores' activity and have determined
that based on the nature of the activity and the required mitigation
measures specific to vessel strike avoidance included in the IHA,
potential for vessel strike is so low as to be discountable. These
mitigation measures, most of which were included in the proposed IHA
and all of which are required in the final IHA, include: A requirement
that all vessel operators comply with 10 kn (18.5 km/hour) or less
speed restrictions in any SMA, DMA or Slow Zone while underway, and
check daily for information regarding the establishment of mandatory or
voluntary vessel strike avoidance areas (SMAs, DMAs, Slow Zones) and
information regarding NARW sighting locations; a requirement that all
vessels greater than or equal to 19.8 m in overall length operating
from November 1 through April 30 operate at speeds of 10 kn (18.5 km/
hour) or less; a requirement that all vessel operators reduce vessel
speed to 10 kn (18.5 km/hour) or less when any large whale, any mother/
calf pairs, pods, or large assemblages of non-delphinid cetaceans are
observed near the vessel; a requirement that all survey vessels
maintain a separation distance of 500 m or greater from any ESA-listed
whales or other unidentified large marine mammals visible at the
surface while underway; a requirement that, if underway, vessels must
steer a course away from any sighted ESA-listed whale at 10 kn or less
until the 500 m minimum separation distance has been established; a
requirement that, if an ESA-listed whale is sighted in a vessel's path,
or within 500 m of an underway vessel, the underway vessel must reduce
speed and shift the engine to neutral; a requirement that all vessels
underway must maintain a minimum separation distance of 100 m from all
non-ESA-listed baleen whales; and a requirement that all vessels
underway must, to the maximum extent practicable, attempt to maintain a
minimum separation distance of 50 m from all other marine mammals, with
an understanding that at times this may not be possible (e.g., for
animals that approach the vessel). We have determined that the ship
strike avoidance measures in the IHA are sufficient to ensure the least
practicable adverse impact on species or stocks and their habitat.
Furthermore, no documented vessel strikes have occurred for any marine
site characterization surveys which were issued IHAs from NMFS during
the survey activities themselves or while transiting to and from survey
sites.
Comment 9: Oceana suggests that NMFS require vessels maintain a
separation distance of at least 500 m from NARWs at all times.
NMFS' response: NMFS agrees with Oceana regarding this suggestion
and a requirement to maintain a separation distance of at least 500 m
from NARWs at all times was included in the proposed Federal Register
Notice and was included as a requirement in the issued IHA.
Comment 10: Oceana recommended that the IHA should require all
vessels supporting site characterization to be equipped with and using
Class A Automatic Identification System (AIS) devices at all times
while on the water. Oceana suggested this requirement should apply to
all vessels, regardless of size, associated with the survey.
NMFS' response: NMFS is generally supportive of the idea that
vessels involved with survey activities be equipped with and using
Class A Automatic Identification System (devices) at all times while on
the water. Indeed, there is a precedent for NMFS requiring such a
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268,
December 7, 2018); however, these activities carried the potential for
much more significant impacts than the marine site characterization
surveys to be carried out by Atlantic Shores, with the potential for
both Level A and Level B harassment take. Given the small
[[Page 24108]]
isopleths and small numbers of take authorized by this IHA, NMFS does
not agree that the benefits of requiring AIS on all vessels associated
with the survey activities outweighs and warrants the cost and
practicability issues associated with this requirement.
Comment 11: Oceana asserts that the IHA must include requirements
to hold all vessels associated with site characterization surveys
accountable to the IHA requirements, including vessels owned by the
developer, contractors, employees, and others regardless of ownership,
operator, and contract. They state that exceptions and exemptions will
create enforcement uncertainty and incentives to evade regulations
through reclassification and redesignation. They recommend that NMFS
simplify this by requiring all vessels to abide by the same
requirements, regardless of size, ownership, function, contract or
other specifics.
NMFS' response: NMFS agrees with Oceana and required these measures
in the proposed IHA and final IHA. The IHA requires that a copy of the
IHA must be in the possession of Atlantic Shores, the vessel operators,
the lead PSO, and any other relevant designees of Atlantic Shores
operating under the authority of this IHA. The IHA also states that
Atlantic Shores must ensure that the vessel operator and other relevant
vessel personnel, including the Protected Species Observer (PSO) team,
are briefed on all responsibilities, communication procedures, marine
mammal monitoring protocols, operational procedures, and IHA
requirements prior to the start of survey activity, and when relevant
new personnel join the survey operations.
Comment 12: Oceana stated that the IHA must include a requirement
for all phases of the Atlantic Shores site characterization to
subscribe to the highest level of transparency, including frequent
reporting to federal agencies, requirements to report all visual and
acoustic detections of NARWs and any dead, injured, or entangled marine
mammals to NMFS or the Coast Guard as soon as possible and no later
than the end of the PSO shift. Oceana states that to foster stakeholder
relationships and allow public engagement and oversight of the
permitting, the IHA should require all reports and data to be
accessible on a publicly available website.
NMFS' response: NMFS agrees with the need for reporting and indeed,
the MMPA calls for IHAs to incorporate reporting requirements. As
included in the proposed IHA, the final IHA includes requirements for
reporting that supports Oceana's recommendations. Atlantic Shores is
required to submit a monitoring report to NMFS within 90 days after
completion of survey activities that fully documents the methods and
monitoring protocols, summarizes the data recorded during monitoring,
and describes, assesses and compares the effectiveness of monitoring
and mitigation measures. PSO datasheets or raw sightings data must also
be provided with the draft and final monitoring report. Further the
draft IHA and final IHA stipulate that if a NARW is observed at any
time by any survey vessels, during surveys or during vessel transit,
Atlantic Shores must immediately report sighting information to the
NMFS North Atlantic Right Whale Sighting Advisory System and to the
U.S. Coast Guard, and that any discoveries of injured or dead marine
mammals be reported by Atlantic Shores to the Office of Protected
Resources, NMFS, and to the New England/Mid-Atlantic Regional Stranding
Coordinator as soon as feasible. All reports and associated data
submitted to NMFS are included on the website for public inspection.
Comment 13: Oceana and LBI recommended increasing the Exclusion
Zone to either 1,000 m or 2,500 m, respectively, for NARWs.
NMFS' response: NMFS notes that the 500 m Exclusion Zone for NARWs
exceeds the modeled distance to the largest 160 dB Level B harassment
isopleth distance (141 m during sparker use) by a substantial margin.
Commenters do not provide a compelling rationale for why the Exclusion
Zone should be even larger. Given that these surveys are relatively low
impact and that, regardless, NMFS has prescribed a NARW Exclusion Zone
that is significantly larger (500 m) than the conservatively estimated
largest harassment zone (141 m), NMFS has determined that the Exclusion
Zone is appropriate. Further, Level A harassment is expected to result
even in the absence of mitigation, given the characteristics of the
sources planned for use. As described in the Mitigation section, NMFS
has determined that the prescribed mitigation requirements are
sufficient to effect the least practicable adverse impact on all
affected species or stocks.
Comment 14: Oceana and LBI recommended that NMFS should require PAM
at all times to maximize the probability of detection for NARWs.
Commenters provided recommendations that NMFS should require Passive
Acoustic Monitoring (PAM) at all times, both day and night, to maximize
the probability of detection for NARWs, as well as other species and
stocks. A private citizen also submitted a question regarding what
other mitigation measures and approaches could be undertaken if a
marine mammal is present in the area during survey activities but goes
unobserved by PSOs.
NMFS' response: The commenters do not explain why they expect that
PAM would be effective in detecting vocalizing mysticetes, nor does
NMFS agree that this measure is warranted, as it is not expected to be
effective for use in detecting the species of concern. It is generally
accepted that, even in the absence of additional acoustic sources,
using a towed passive acoustic sensor to detect baleen whales
(including NARWs) 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
[[Page 24109]]
ensonified above the Level B harassment threshold is relatively small
(a maximum of 141 m); this reflects the fact that, to start with, the
source level is comparatively low and the intensity of any resulting
impacts would be lower level and, further, it means that inasmuch as
PAM will only detect a portion of any animals exposed within a zone,
the overall probability of PAM detecting an animal in the harassment
zone is low. Together these factors support the limited value of PAM
for use in reducing take with smaller zones. PAM is only capable of
detecting animals that are actively vocalizing, while many marine
mammal species vocalize infrequently or during certain activities,
which means that only a subset of the animals within the range of the
PAM would be detected (and potentially have reduced impacts).
Additionally, localization and range detection can be challenging under
certain scenarios. For example, odontocetes are fast moving and often
travel in large or dispersed groups which makes localization difficult.
Given that the effects to marine mammals from the types of surveys
authorized in this IHA are expected to be limited to low level
behavioral harassment even in the absence of mitigation, the limited
additional benefit anticipated by adding this detection method
(especially for NARWs 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. NMFS has previously provided discussions on why PAM isn't a
required monitoring measure during HRG survey IHAs in past Federal
Register notices (see 86 FR 21289, April 22, 2021 and 87 FR 13975,
March 11, 2022 for examples).
Regarding monitoring for species that may be present yet go
unobserved, NMFS recognizes that visual detection based mitigation
approaches are not 100 percent effective. Animals are missed because
they are underwater (availability bias) or because they are available
to be seen, but are missed by observers (perception and detection
biases) (e.g., Marsh and Sinclair, 1989). However, visual observation
remains one of the best available methods for marine mammal detection.
Although it is likely that some marine mammals may be present yet
unobserved within the harassment zone, all expected take of marine
mammals has been appropriately authorized. For mysticete species in
general, it is unlikely that an individual would occur within the
estimated 141 m harassment zone and remain undetected. For NARW in
particular, the required Exclusion Zone is 500 m and, therefore, it is
even less likely that an individual would approach the harassment zone
undetected.
Comment 15: Oceana recommends a shutdown requirement if a NARW or
other ESA-listed species is detected in the clearance zone as well as a
publically available explanation of any exemptions as to why the
applicant would not be able to shutdown in these situations.
NMFS' response: There are several shutdown requirements described
in the Federal Register notice of the proposed IHA (87 FR 4200, January
27, 2022), and which are included in the final IHA, including the
stipulation that geophysical survey equipment must be immediately shut
down if any marine mammal is observed within or entering the relevant
Exclusion Zone while geophysical survey equipment is operational. There
is no exemption for the shutdown requirement. In regards to reporting,
Atlantic Shores must notify NMFS if a NARW is observed at any time by
any survey vessels during surveys or during vessel transit.
Additionally, Atlantic Shores is required to report the relevant survey
activity information, such as such as the type of survey equipment in
operation, acoustic source power output while in operation, and any
other notes of significance (i.e., pre-clearance survey, ramp-up,
shutdown, end of operations, etc.) as well as the estimated distance to
an animal and its heading relative to the survey vessel at the initial
sighting and survey activity information. As documented in Atlantic
Shores' preliminary monitoring report for the surveys completed under
the previous 2020-2021 IHA (report available on our website at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization">https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization</a>), 34 events
occurred where a shutdown was necessitated. We note that if a right
whale is detected within the Exclusion Zone before a shutdown is
implemented, the right whale and its distance from the sound source,
including if it is within the Level B harassment zone, would be
reported in Atlantic Shores' final monitoring report and made publicly
available on NMFS' website. Atlantic Shores is required to immediately
notify NMFS of any sightings of NARWs and report upon survey activity
information. NMFS believes that these requirements address the
commenter's concerns.
Comment 16: Oceana recommended that when HRG surveys are allowed to
resume after a shutdown event, the surveys should be required to use a
ramp-up procedure to encourage any nearby marine life to leave the
area.
NMFS' response: NMFS agrees with this recommendation and included
in the Federal Register notice of the proposed IHA (87 FR 4200, January
27, 2022) and this final IHA a stipulation that when technically
feasible, survey equipment must be ramped up at the start or restart of
survey activities. Ramp-up must begin with the power of the smallest
acoustic equipment at its lowest practical power output appropriate for
the survey. When technically feasible the power must then be gradually
turned up and other acoustic sources added in a way such that the
source level would increase gradually. NMFS notes that ramp-up would
not be required for short periods where acoustic sources were shut down
(i.e., less than 30 minutes) if PSOs have maintained constant visual
observation and no detections of marine mammals occurred within the
applicable Exclusion Zones.
Comment 17: COA and LBI assert that Level A harassment may occur,
and that this was not accounted for in the proposed Notice.
NMFS' response: NMFS acknowledges the concerns brought up by the
commenters regarding the potential for Level A harassment of marine
mammals. However, no Level A harassment is expected to result, even in
the absence of mitigation, given the characteristics of the sources
planned for use. This is additionally supported by the required
mitigation and very small estimated Level A harassment zones described
in Atlantic Shores' 2020 Federal Register notice (85 FR 21198, April
16, 2020) and carried through to the 2021 renewal IHA (86 FR 21289,
April 22, 2021). Furthermore, the commenters do not provide any support
for the apparent contention that Level A harassment is a potential
outcome of these activities. As discussed in the notice of proposed
IHA, NMFS considers this category of survey operations to be near de
minimis, with the potential for Level A harassment for any species to
be discountable.
Comment 18: COA is concerned that habitat displacement could
significantly increase the risk of ship-strike to NARWs from outside
the survey area.
NMFS' response: NMFS does not anticipate that NARWs would be
displaced from the area where Atlantic Shores' marine site
characterization
[[Page 24110]]
surveys would occur, and COA does not provide evidence that this effect
should be a reasonably anticipated outcome of the specified activity.
Similarly, NMFS is not aware of any scientific information suggesting
that the survey activity would drive marine mammals into shipping
lanes, and disagrees that this would be a reasonably anticipated effect
of the specified activities. The take by Level B harassment authorized
by NMFS is precautionary but considered unlikely, as NMFS' take
estimation process does not account for the use of extremely
precautionary mitigation measures, e.g., the requirement for Atlantic
Shores to implement a Shutdown Zone that is more than 3 times as large
as the estimated harassment zone. These requirements are expected to
largely eliminate the actual occurrence of Level B harassment events
and, to the extent that harassment does occur, would minimize the
duration and severity of any such events. Therefore, even if a NARW was
in the area of the cable corridor surveys, a displacement impact is not
anticipated.
Although the primary stressor to marine mammals from the specified
activities is acoustic exposure to the sound source, NMFS takes
seriously the risk of vessel strike and has prescribed measures
sufficient to avoid the potential for ship strike to the extent
practicable. NMFS has required these measures despite a very low
likelihood of vessel strike; vessels associated with the survey
activity will add a discountable amount of vessel traffic to the
specific geographic region and, furthermore, vessels towing survey gear
travel at very slow speeds (i.e., roughly 4-5 kn).
Comment 19: COA is concerned regarding the number of species that
could be impacted by the activities, as well as a lack of baseline data
being available for species in the area. In addition, COA has stated
that NMFS did not adequately address the potential for cumulative
impacts to bottlenose dolphins from Level B harassment over several
years of project activities.
NMFS' response: We appreciate the concern expressed by COA. NMFS
utilizes the best available science when analyzing which species may be
impacted by an applicant's proposed activities. Based on information
found in the scientific literature, as well as based on density models
developed by Duke University, all marine mammal species included in the
proposed Federal Register Notice have some likelihood of occurring in
Atlantic Shores' survey areas. Furthermore, the MMPA requires us to
evaluate the effects of the specified activities in consideration of
the best scientific evidence available and, if the necessary findings
are made, to issue the requested take authorization. The MMPA does not
allow us to delay decision making in hopes that additional information
may become available in the future. Furthermore, NMFS notes that it has
previously addressed discussions on cumulative impact analyses in
previous comments and references COA back to these specific responses
in this Notice.
Regarding the lack of baseline information cited by COA, with
specific concern pointed out for harbor seals, NMFS points towards two
sources of information for marine mammal baseline information: the
Ocean/Wind Power Ecological Baseline Studies, January 2008-December
2009 completed by the New Jersey Department of Environmental Protection
in July 2010 (<a href="https://dspace.njstatelib.org/xmlui/handle/10929/68435">https://dspace.njstatelib.org/xmlui/handle/10929/68435</a>)
and the Atlantic Marine Assessment Program for Protected Species
(AMAPPS; <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected">https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected</a>)
with annual reports available from 2010 to 2020 (<a href="https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species">https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species</a>) that cover the areas across the
Atlantic Ocean. NMFS has duly considered this and all available
information.
Based on the information presented, NMFS has determined that no new
information has become available, nor do the commenters present
additional information, that would change our determinations since the
publication of the proposed notice.
Comment 20: COA and LBI indicated that they believe the survey area
to be too large for the described proposed surveys as the geographical
scope of the survey does not seem to match up with the stated site
characterization survey area. Commenters justify this by saying that
the export cable routes were not previously described in the Bureau of
Ocean Energy Management's (BOEM) Construction and Operations Plans
(COP) and Notice of Intent (NOI) and therefore cannot be included in
the scope of activities requested by Atlantic Shores.
NMFS' response: It is not in NMFS' jurisdiction to dictate how and
where an applicant's activities should be performed. Under the MMPA,
NMFS must analyze and make findings, if possible, based on the
specified activity as described by the applicant. Any comments by
stakeholders regarding the geographical scope and size of survey
activities, or what information is or is not included in BOEM's COP and
NOI (i.e., inclusion of the export cable routes) are out of scope for
the described proposed action as BOEM, not NMFS, is in charge of
leasing and activities occurring within a defined area and region.
Comment 21: LBI states its opposition to the use of a categorical
exclusion under NEPA, asserting that, at minimum, an Environmental
Assessment is the appropriate level of review.
NMFS' response: NMFS does not agree with LBI's comment. A
categorical exclusion (CE) is a category of actions that an agency has
determined does not individually or cumulatively have a significant
effect on the quality of the human environment, and is appropriately
applied for such categories of actions so long as there are no
extraordinary circumstances present that would indicate that the
effects of the action may be significant. Extraordinary circumstances
are situations for which NOAA has determined further NEPA analysis is
required because they are circumstances in which a normally excluded
action may have significant effects. A determination of whether an
action that is normally excluded requires additional evaluation because
of extraordinary circumstances focuses on the action's potential
effects and considers the significance of those effects in terms of
both context (consideration of the affected region, interests, and
resources) and intensity (severity of impacts). Potential extraordinary
circumstances relevant to this action include (1) adverse effects on
species or habitats protected by the MMPA that are not negligible; (2)
highly controversial environmental effects; (3) environmental effects
that are uncertain, unique, or unknown; and (4) the potential for
significant cumulative impacts when the proposed action is combined
with other past, present, and reasonably foreseeable future actions.
The relevant NOAA CE associated with issuance of incidental take
authorizations is CE B4, ``Issuance of incidental harassment
authorizations under section 101(a)(5)(A) and (D) of the MMPA for the
incidental, but not intentional, take by harassment of marine mammals
during specified activities and for which no serious injury or
mortality is anticipated.'' This action falls within CE B4. In
determining whether a CE is appropriate for a given incidental take
authorization, NMFS considers the applicant's
[[Page 24111]]
specified activity and the potential extent and magnitude of takes of
marine mammals associated with that activity along with the
extraordinary circumstances listed in the Companion Manual for NAO 216-
6A and summarized above. The evaluation of whether extraordinary
circumstances (if present) have the potential for significant
environmental effects is limited to the decision NMFS is responsible
for, which is issuance of the incidental take authorization. While
there may be environmental effects associated with the underlying
action, potential effects of NMFS' action are limited to those that
would occur due to the authorization of incidental take of marine
mammals. NMFS prepared numerous Environmental Assessments (EAs)
analyzing the environmental impacts of the categories of activities
encompassed by CE B4 which resulted in Findings of No Significant
Impacts (FONSIs) and, in particular, numerous EAs prepared in support
of issuance of IHAs related to similar survey actions are part of NMFS'
administrative record supporting CE B4. These EAs demonstrate the
issuance of a given incidental harassment authorization does not affect
other aspects of the human environment because the action only affects
the marine mammals that are the subject of the incidental harassment
authorization. These EAs also addressed factors in 40 CFR 1508.27
regarding the potential for significant impacts and demonstrate the
issuance of incidental harassment authorization for the categories of
activities encompassed by CE B4 do not individually or cumulatively
have a significant effect on the human environment.
Specifically for this action, NMFS independently evaluated the use
of the CE for issuance of Atlantic Shores' IHA, which included
consideration of extraordinary circumstances. As part of that analysis,
NMFS considered including whether this IHA issuance would result in
cumulative impacts that could be significant. In particular, the
issuance of an IHA to Atlantic Shores is expected to result in minor,
short-term behavioral effects on marine mammal species due to exposure
to underwater sound from site characterization survey activities.
Behavioral disturbance is expected to occur intermittently in the
vicinity of Atlantic Shores' survey area during the one-year timeframe.
Level B harassment will be reduced through use of mitigation measures
described herein. Additionally, as discussed elsewhere, NMFS has
determined that Atlantic Shores' activities fall within the scope of
activities analyzed in GARFO's programmatic consultation regarding
geophysical surveys along the U.S. Atlantic coast in the three Atlantic
Renewable Energy Regions (completed June 29, 2021; revised September
2021), which concluded surveys such as those planned by Atlantic Shores
are not likely to adversely affect endangered listed species or
adversely modify or destroy critical habitat. Accordingly, NMFS has
determined that the issuance of this IHA will result in no more than
negligible (as that term is defined by the Companion Manual for NAO
216-6A) adverse effects on species protected by the ESA and the MMPA.
Further, the issuance of this IHA will not result in highly
controversial environmental effects or result in environmental effects
that are uncertain, unique, or unknown because numerous entities have
been engaged in site characterization surveys that result in Level B
harassment of marine mammals in the United States. This type of
activity is well documented; prior authorizations and analysis
demonstrates issuance of an IHA for this type of action only affects
the marine mammals that are the subject of the specific authorization
and, thus, no potential for significant cumulative impacts are
expected, regardless of past, present, or reasonably foreseeable
actions, even though the impacts of the action may not be significant
by itself. Based on this evaluation, we concluded that the issuance of
the IHA qualifies to be categorically excluded from further NEPA
review.
Comment 22: LBI asserts that the notice of proposed IHA does not
address compliance with the ESA, and states their assumption that NMFS
relies on the 2013 Biological Assessment (BA) and Biological Opinion
(BO), which can be found at <a href="https://repository.library.noaa.gov/view/noaa/29291">https://repository.library.noaa.gov/view/noaa/29291</a>. LBI goes on to find fault with the analysis conducted in
support of the 2013 Opinion and states that NMFS cannot rely on the
analysis for the necessary ESA compliance.
NMFS' response: LBI is incorrect. NMFS did not utilize the 2013 BA
and BO for Atlantic Shores' 2022 site characterization surveys. As
described in the notice of proposed IHA (87 FR 4217, 4225), NMFS
determined that its proposed action of issuing an IHA in relation to
the activities described in the application fell within the scope of
the Programmatic Consultation regarding geophysical surveys along the
U.S. Atlantic coast in the three Atlantic Renewable Energy Regions,
developed by the NMFS Greater Atlantic Regional Office (GARFO) in 2021.
Furthermore, the Programmatic Consultation covered the region that
Atlantic Shores' survey will occur in and also covered the equipment
Atlantic Shores anticipates using during their surveys. The
Programmatic Consultation further prescribed marine mammal-relevant
specific Project Design Criteria (PDCs). Pursuant to section 7 of the
ESA, NMFS has required compliance with these PDCs in the final IHA.
This information can be found in both the proposed Federal Register
Notice and the final Notice. More information can be found on GARFO's
website (<a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>) as well as on the NMFS' website
for Atlantic Shores' specific action (<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-0">https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-0</a>).
Comment 23: LBI asserts that NMFS has not been sufficiently clear
with regard to its use of density data, and expresses concern that the
density data used may not be sufficiently conservative.
NMFS' response: As discussed in greater detail in the notice of
proposed IHA, NMFS relied upon the best available scientific
information in assessing the likelihood of occurrence for all
potentially impacted marine mammal species, including the NARW.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al., 2016b, 2017, 2018, 2021)
represent the best available information regarding marine mammal
densities in the survey area. Density data for all taxa are available
for 10 km x 10 km grid cells over the entire survey area and, for most
species (including NARW), are available for each of 12 months. For the
exposure analysis, these density data were mapped using a geographic
information system (GIS) for each of the survey areas (i.e., Lease
Area, ECR North, ECR South). Densities of each species were then
averaged by season; thus, a density was calculated for each species for
spring, summer, fall and winter. To be conservative, the greatest
seasonal density calculated for each species was then carried forward
in the exposure analysis. All density information used by NMFS is
publicly available through Duke University's OBIS-SEAMAP website:
<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>.
We note that LBI does not discuss what it means by stating that the
[[Page 24112]]
analysis may not be ``conservative,'' and does not connect this concern
to the relevant requirements of the MMPA. However, NMFS believes that
its approach to use of the density information, which was described in
full in the notice of proposed IHA, addresses any such concerns.
Comment 24: LBI asserts that NMFS' assessment of the potential for,
and the impacts of, masking (in particular for the NARW) is
insufficient.
NMFS' response: NMFS disagrees that the potential impacts of
masking were not properly considered. NMFS acknowledges our
understanding of the scientific literature that LBI cited but,
fundamentally, the masking effects to any one individual whale from one
survey are expected to be minimal. Masking is referred to as a chronic
effect because one of the key harmful components of masking is its
duration--the fact that an animal would have reduced ability to hear or
interpret critical cues becomes much more likely to cause a problem the
longer it is occurring. Also, inherent in the concept of masking is the
fact that the potential for the effect is only present during the times
that the animal and the source are in close enough proximity for the
effect to occur (and further this time period would need to coincide
with a time that the animal was utilizing sounds at the masked
frequency) and, as our analysis (both quantitative and qualitative
components) indicates, because of the relative movement of whales and
vessels, we do not expect these exposures with the potential for
masking to be of a long duration within a given day. Further, because
of the relatively low density of mysticetes, and relatively large area
over which the vessels travel, we do not expect any individual whales
to be exposed to potentially masking levels from these surveys for more
than a few days in a year.
As noted above, any masking effects of this survey are expected to
be limited and brief, if present. Given the likelihood of significantly
reduced received levels beyond even short distances from the survey
vessel, combined with the short duration of potential masking and the
lower likelihood of extensive additional contributors to background
noise offshore and within these short exposure periods, we believe that
the incremental addition of the survey vessel is unlikely to result in
more than minor and short-term masking effects, likely occurring to
some small number of the same individuals captured in the estimate of
behavioral harassment.
Comment 25: LBI requests that NMFS explain why a 20 dB propagation
loss coefficient was applicable to the analysis presented in the
proposed Notice or to go back and rerun the analysis using a 15 dB
propagation loss coefficient.
NMFS' response: LBI states that NMFS' assumption that use of a
20logR transmission loss factor (i.e., spherical spreading) is
inappropriate, and states that ``According to a number of scientific
sources, the use of a noise propagation loss coefficient of 20 dB per
tenfold increase in distance represents ``spherical spreading'' and is
only appropriate in the ``near field'' where the calculated horizontal
distance is comparable with the water depth.'' However, LBI does not
cite any such scientific sources, so NMFS must evaluate LBI's
recommendations based only on its comment.
A major component of transmission loss is spreading loss and, from
a point source in a uniform medium, sound spreads outward as spherical
waves (``spherical spreading'') (Richardson et al., 1995). In water,
these conditions are often thought of as being related to deep water,
where more homogenous conditions may be likely. However, the
theoretical distinction between deep and shallow water is related more
to the wavelength of the sound relative to the water depth, versus to
water depth itself. Therefore, when the sound produced is in the
kilohertz range, where wavelength is relatively short, much of the
continental shelf may be considered ``deep'' for purposes of evaluating
likely propagation conditions.
As described in the notice of proposed IHA, the area of water
ensonified at or above the root mean square (RMS) 160 dB threshold was
calculated using a simple model of sound propagation loss, which
accounts for the loss of sound energy over increasing range. Our use of
the spherical spreading model (where propagation loss = 20 * log
[range]; such that there would be a 6-dB reduction in sound level for
each doubling of distance from the source) is a reasonable
approximation over the relatively short ranges involved. Even in
conditions where cylindrical spreading (where propagation loss = 10 *
log [range]; such that there would be a 3-dB reduction in sound level
for each doubling of distance from the source) may be appropriate
(e.g., non-homogenous conditions where sound may be trapped between the
surface and bottom), this effect does not begin at the source. In any
case, spreading is usually more or less spherical from the source out
to some distance, and then may transition to cylindrical (Richardson et
al., 1995). For these types of surveys, NMFS has determined that
spherical spreading is a reasonable assumption even in relatively
shallow waters (in an absolute sense) as the reflected energy from the
seafloor will be much weaker than the direct source and the volume
influenced by the reflected acoustic energy would be much smaller over
the relatively short ranges involved.
In support of its position, LBI cites several examples of use of
practical spreading (a useful real-world approximation of conditions
that may exist between the theoretical spreading modes of spherical and
cylindrical; 15logR) in asserting that this approach is also
appropriate here. However, these examples (U.S. Navy construction at
Newport, RI, and NOAA construction in Ketchikan, AK) are not relevant
to the activity at hand. First, these actions occur in even shallower
water (e.g., less than 10 m for Navy construction). Of greater
relevance to the action here, pile driving activity produces sound with
longer wavelengths than the sound produced by the acoustic sources
planned for use here. As noted above, a determination of appropriate
spreading loss is related to the ratio of wavelength to water depth
more than to a strict reading of water depth. NMFS indeed uses
practical spreading in typical coastal construction applications, but
for reasons described here, uses spherical spreading when evaluating
the effects of HRG surveys on the continental shelf.
In addition, this analysis is likely conservative for other
reasons, e.g., the lowest frequency was used for systems that are
operated over a range of frequencies and other sources of propagation
loss are neglected.
NMFS has determined that spherical spreading is the most
appropriate form of propagation loss for these surveys and has relied
on this approach for past IHAs with similar equipment, locations, and
depths. Please refer back to the Garden State HRG IHA (83 FR 14417;
April 4, 2018) and the 2019 Skipjack HRG IHA (84 FR 51118; September
27, 2019) for examples. Prior to the issuance of these IHAs
(approximately 2018 and older), NMFS typically relied upon practical
spreading for these types of survey activities. However, as additional
scientific evidence became available, including numerous sound source
verification reports, NMFS determined that this approach was
inappropriately conservative and, since that time, as consistently used
spherical spreading. Furthermore, NMFS' User Spreadsheet tool assumes a
``safe distance''
[[Page 24113]]
methodology for mobile sources where propagation loss is spherical
spreading (20LogR) (<a href="https://media.fisheries.noaa.gov/2020-12/User_Manual%20_DEC_2020_508.pdf?null">https://media.fisheries.noaa.gov/2020-12/User_Manual%20_DEC_2020_508.pdf?null</a>), and NMFS calculator tool for
estimating isopleths to Level B harassment thresholds also incorporates
the use of spherical spreading.
Comment 26: LBI suggests that NMFS utilize a source level of 211 dB
instead of the 203 dB for the Dura-Spark 240, as was cited in the
proposed Federal Register Notice. NMFS notes that as LBI did not
provide the metric for the source levels that they refer to in their
letter, NMFS will use the one that was referenced in the proposed
Federal Register Notice.
NMFS' response: NMFS disagrees with LBI's recommendation, and has
determined that the 203 dB source level is the most appropriate for use
herein. As discussed in the notice of proposed IHA, the Applied
Acoustics Dura-Spark was included and measured in Crocker and
Fratantonio (2016), but not with an energy setting near 800 J, the
energy setting which was determined as the ``worst-case scenario'' by
Atlantic Shores for use in the presence of denser substrates. The SIG
ELC 820 sparker was deemed as a similar alternative to the Dura-Spark
based on information in Table 9 of Crocker and Fratantonio (2016), and
where higher energy setting of 750 J (at a 5 m depth) had been
measured. We also note that using the SIG ELC as a surrogate system has
been previously documented and employed in other issued IHAs, such as
the Mayflower Wind HRG surveys (86 FR 38033, July 19, 2021). NMFS
further based this decision on further information on the SIG acoustic
source, Crocker and Fratantonio (2016), and other IHA applications (see
Mayflower Wind's application at <a href="https://media.fisheries.noaa.gov/2021-02/Mayflower-2021HA_Appl_OPR1.pdf?null=">https://media.fisheries.noaa.gov/2021-02/Mayflower-2021HA_Appl_OPR1.pdf?null=</a>). The frequency ranges provided
for the SIG ELC represent a broad range (0.01-1.9 kHz), which includes
the highest bandwidth at the 750 J reported in Crocker and Fratantonio
(2016).
We also note that, based on additional discussion with Atlantic
Shores, a power level of 750 J was likely an overestimate and that 500-
600 J was more likely to be used during the HRG surveys and that 750
was a conservative overestimate. NMFS included this information in the
proposed Federal Register Notice under Table 2. The use of information
that appropriately addresses the potential for use at the higher power
level means that the analysis herein, including the selection of source
level, is conservative for most typical applications of the acoustic
sources.
Comment 27: LBI asserts that NMFS has not appropriately considered
the location of NARW migratory habitat in relation to the survey and,
in so doing, has not correctly evaluated the potential for impacts to
NARW migratory habitat.
NMFS' response: NMFS disagrees in LBI's assertion regarding NARW
migratory habitat. As we previously stated above in response to Comment
#2, the migratory habitat of the NARW is very large in comparison to
the overall size of Atlantic Shores' survey area but also, importantly,
we do not expect any meaningful or significant impacts to important
behavior that may occur within the portion of this habitat that may be
impacted by the specified activity. Because of this, we expect that any
potential exposures NARWs may experience when transiting the migratory
corridor would not result in more than behavioral harassment to a minor
degree. As is necessary for authorizations issued under the MMPA, we
have fully evaluated any potential impacts to both the important
behaviors of marine mammals (including NARWs) and to their important
habitats to make our negligible impact determination.
Comment 28: LBI suggests that NMFS should use more conservative
information related to the acoustic output of the sources planned for
use (i.e., a higher source level and a lower transmission loss
coefficient), and performed its own analysis of these alternative
scenarios. LBI notes that these changes would increase the size of the
estimated Level B harassment zone and, as a result, increase the
expected take numbers. LBI also recommends, as a result of their
analysis, that the Exclusion Zone be increased to 2,500 m.
NMFS' response: NMFS disagrees that the changes suggested by LBI
are appropriate. We have addressed use of the alternate source level
and the recommendation of lower assumed propagation loss in previous
responses to comments herein. While NMFS acknowledges that, if one
assumes the most conservative values at every opportunity, the analysis
will produce higher estimates of harassment zone size and of incidental
take. However, the assumptions made by LBI are not realistic, and LBI
does not adequately justify the assumptions made in its overly
conservative analysis.
Comment 29: LBI asserts that the potential for Level A harassment,
serious injury and/or death impacts have been insufficiently addressed
in NMFS' analysis. LBI also suggests that NMFS must perform a
``cumulative PTS analysis''.
NMFS' response: The commenter appears to mistakenly reference NMFS'
historical Level A harassment threshold of 180 dB rms SPL received
level in addressing this issue. However, in 2018, NMFS published
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 pressure and cumulative sound exposure
level thresholds. This dual criteria approach requires that the more
conservative of the two hearing group-specific threshold criteria be
applied in evaluating the potential for Level A harassment. Therefore,
NMFS has considered the potential for Level A harassment on the basis
of cumulative sound exposure level (as well as peak pressure) in the
way suggested by LBI.
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. In support of a previous IHA request (see the
proposed 2020 Notice (85 FR 7926; February 12, 2020) and the final 2020
Notice (85 FR 21198, April 16, 2020)), Atlantic Shores provided
estimated Level A harassment zones for similar equipment (i.e., the
Applied Acoustics Dura-Spark 240 sparker). Despite assuming a higher
source level than is used herein, the result of this analysis shows
that a NARW would have to come within 1 m of the sparker to potentially
incur PTS. NMFS has reviewed the analysis found in Atlantic Shores'
2020 HRG IHA application and confirmed that it is accurate and relevant
to this action. This application can be found on NMFS' website at
<a href="https://media.fisheries.noaa.gov/dam-migration/atlanticshores_2020_app_opr1.pdf">https://media.fisheries.noaa.gov/dam-migration/atlanticshores_2020_app_opr1.pdf</a>.
Not only are NARWs migrating through the area, meaning that their
occurrence in the area is expected to be of relatively brief duration
and the likelihood of exposures of longer duration or at closer range
minimized, Atlantic Shores is also required to not approach any NARW
within 500 m or operate the sparker within 500 m of a NARW (see 87 FR
4217 of the proposed Notice). As such, there is essentially no
potential for a NARW to experience PTS (i.e., Level A harassment) from
the described surveys.
Comment 30: LBI insists that NMFS do an in-depth analysis of any
potential serious injury and/or death to NARWs that could occur during
Atlantic Shores'
[[Page 24114]]
surveys. They further state that any serious injury or mortality could
occur directly from the NARW's migration being impacted by cumulative
sound exposure leading to PTS, any adverse reactions from behavioral
disruption, and masking.
NMFS' response: The best available science indicates that Level B
harassment, or disruption of behavioral patterns, may occur. No
mortality or serious injury is expected to occur as a result of the
planned surveys, and there is no scientific evidence indicating that
any marine mammal could experience these as a direct result of noise
from geophysical survey activity. Authorization of mortality and
serious injury may not occur via IHAs, only within Incidental Take
Regulations (ITRs), and such authorization was neither requested nor
proposed. NMFS notes that in its history of authorizing take of marine
mammals, there has never been a report of any serious injuries or
fatalities of a marine mammal related to the site characterization
surveys, including for NARWs. We emphasize that an estimate of take
numbers alone is not sufficient to assess impacts to a marine mammal
population. Take numbers must be viewed contextually with other
factors, as explained in the ``Negligible Impact Analyses and
Determinations'' section of this Notice.
Comment 31: LBI states that to properly make a negligible impact
determination, NMFS should develop/provide criteria to avoid
jeopardizing the existence and survival of the NARW. LBI states that
this would ideally include no instances of fatality or serious injury
from survey noise and meet that strict criterion with high statistical
confidence. LBI notes that they believe the current proposed Notice for
Atlantic Shores' surveys does not meet this criteria.
NMFS' response: LBI's comment is founded on the presumption, absent
evidence, that serious injury or mortality is a reasonably anticipated
outcome of Atlantic Shores' specified activity. NMFS emphasizes that
there is no credible scientific evidence available suggesting that
mortality and/or serious injury is a potential outcome of the planned
survey activity, and LBI provides no information to the contrary. We
also refer LBI to the GARFO 2021 Programmatic Consultation, which finds
that these survey activities are in general not likely to adversely
affect ESA-listed marine mammal species, i.e., GARFO's analysis
conducted pursuant to the ESA finds that marine mammals are not likely
to be taken at all (as that term is defined under the ESA), much less
be taken by serious injury or mortality. That document is found here:
<a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>.
Comment 32: LBI states that it believes NMFS' negligible impact
finding for NARWs to be insufficient given the analysis LBI included in
their letter, which produced higher take numbers for marine mammals,
including NARWs. LBI also states that, based on their assertion that
serious injury and/or mortality is a potential outcome of the specified
activity for NARWs, a Rulemaking (Incidental Take Regulation with
subsequent Letters of Authorization) would be necessary to undertake
Atlantic Shores' site characterization surveys due to LBI's premise
that take by serious injury and/or mortality may occur.
NMFS' response: NMFS acknowledges that authorization under section
101(a)(5)(A) of the MMPA would be required were mortality or serious
injury an expected outcome of the action. However, as noted previously,
there is no scientific evidence suggesting that such outcomes are
possible and, therefore, an IHA issued under section 101(a)(5)(D) is
appropriate. Similarly, if the analysis presented by LBI were
considered credible, the results would necessitate a revision to NMFS'
negligible impact determination. However, as detailed in previous
comment responses, the LBI analysis is not based on the best scientific
evidence available, and NMFS does not consider it to be a credible
analysis. Separately, it appears that LBI equates Level A harassment
with serious injury and mortality in suggesting that Incidental Take
Regulations are required. As discussed herein, Level A harassment is
not an expected outcome of the specified activity. However, we clarify
that section 101(a)(5)(D) of the MMPA, which governs the issuance of
IHAs, indicates that the ``the Secretary shall authorize . . . . taking
by harassment [. . . .]'' The definition of ``harassment'' in the MMPA
clearly includes both Level A and Level B harassment.
LBI further suggested that NMFS should promulgate programmatic
Incidental Take Regulations for site characterization activities.
Although NMFS is open to this approach, we have not received a request
for such regulations and NMFS reminds LBI that the MMPA only allows for
the development of Incidental Take Regulations upon request. LBI states
that this would be necessary based on the potential for serious injury
or mortality that was assumed in LBI's letter. However, as discussed
previously, NMFS does not expect any serious injury or mortality, even
absent mitigation efforts, because of the nature of the activities
described in the proposed Federal Register Notice. Furthermore, NMFS
included a vessel strike analysis in the proposed Notice 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 low enough to be discountable.
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, Atlantic Shores 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 the Mitigation and Monitoring and
Reporting sections). 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 such take is authorized. The
mitigation measures in the IHA related to vessel strike avoidance are
not limited to vessels operating within the survey area or cable
corridors and therefore apply to transiting vessels. Because of these
reasons and the addition of mitigation efforts, including required
vessel separation distances to further reduce any risk, we do not find
that a Rulemaking is necessary for Atlantic Shores' HRG surveys.
Comment 33: LBI suggests that as a means of effecting the Least
Practicable Adverse Impacts, as required under the MMPA, survey
activities should be prohibited from January through April, as well as
in November. Furthermore, LBI suggests that an annual Seasonal
Management Area (SMA) be established in and adjacent to the survey area
to mitigate against any vessel strike.
NMFS' response: NMFS assumes this is regarding the NARW and shares
concern with LBI regarding the status of the NARW, given that a UME has
been in effect for this species since June of 2017 and that there have
been a number of recent mortalities. NMFS appreciates the value of
seasonal restrictions under some circumstances. However, in this
[[Page 24115]]
case, we have determined seasonal restrictions are not warranted. We
reiterate a response from earlier where NARW occurrence in this area is
generally low most of the year. Furthermore, NMFS has already stated
that this area consists only of migratory habitat for the NARW,
consisting of no primary foraging habitat, which would further reduce
the risks of exposure and impacts. Further, NMFS is requiring Atlantic
Shores to comply with restrictions associated with identified SMAs and
they must comply with DMAs, if any DMAs are established near the survey
area. Finally, significantly shortening Atlantic Shores work season is
impracticable given the number of survey days planned for the specified
activity for this IHA.
NMFS wishes to clarify that existing and permanent SMAs have been
previously established under a different rulemaking (73 FR 60173 and
can also be found on NMFS' website at <a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales#speedlimit">https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales#speedlimit</a>), but that NMFS appreciates the
suggestion provided by LBI and will take the comment of developing
additional SMAs under consideration.
Changes From the Proposed IHA to Final IHA
Since publication of the Notice of proposed IHA, NMFS has
acknowledged that the population estimate of NARWs is now under 350
animals (<a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>). However, as discussed in our response to Comment #2 above, NMFS
has determined that this change in abundance estimate would not change
the estimated take of NARWs or authorized take numbers, nor affect our
ability to make the required findings under the MMPA for Atlantic
Shores' survey activities. The status and trends of the NARW population
remain unchanged.
NMFS considered all public comments received and determined that no
changes to the final IHA were necessary.
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 3 lists all species or stocks for which take is authorized
for this action, and summarizes information related to the population
or stock, including regulatory status under the MMPA and Endangered
Species Act (ESA) and potential biological removal (PBR), where known.
For taxonomy, 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 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 most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS's draft 2021 U.S. Atlantic and Gulf of Mexico Marine Mammal Stock
Assessment. All values presented in Table 3 are the most recent
available at the time of publication and are available in the draft
2021 SARs available online at: <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>.
Table 3--Marine Mammal Species Likely To Occur Near the Survey Area That May Be Affected by Atlantic Shores' Planned HRG Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
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)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale.......... Eubalaena glacialis.... Western Atlantic Stock. E/D, Y \5\ 368 (0; 364; 2019) 0.7 7.7
Humpback whale...................... Megaptera novaeangliae. Gulf of Maine.......... -/-; Y 1,396 (0; 1,380; 2016) 22 12.15
Fin whale........................... Balaenoptera physalus.. Western North Atlantic E/D, Y 6,802 (0.24; 5,573; 11 1.8
Stock. 2016).
Sei whale........................... Balaenoptera borealis.. Nova Scotia Stock...... E/D, Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
Minke whale......................... Balaenoptera Canadian East Coastal -/-, N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. Stock. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale......................... Physeter macrocephalus. North Atlantic Stock... E/D, Y 4,349 (0.28; 3,451; 3.9 0
2016).
Long-finned pilot whale............. Globicephala melas..... Western North Atlantic -/-, N 39,215 (0.3; 30,627; 306 29
Stock. 2016).
Atlantic white-sided dolphin........ Lagenorhynchus acutus.. Western North Atlantic -/-, N 93,233 (0.71; 54,443; 544 227
Stock. 2016).
Bottlenose dolphin.................. Tursiops truncatus..... Western North Atlantic -/D, Y 6,639 (0.41; 4,759; 48 12.2-21.5
Northern Migratory 2016).
Coastal Stock.
Western North Atlantic -/-, N 62,851 (0.23; 51,914; 519 28
Offshore Stock. 2016).
Common dolphin...................... Delphinus delphis...... Western North Atlantic -/-, N 172,974 (0.21, 1,452 390
Stock. 145,216, 2016).
Atlantic spotted dolphin............ Stenella frontalis..... Western North Atlantic -/-, N 39,921 (0.27; 32,032; 320 0
Stock. 2016).
[[Page 24116]]
Risso's dolphin..................... Grampus griseus........ Western North Atlantic -/-, N 35,215 (0.19; 30,051; 301 34
Stock. 2016).
Harbor porpoise..................... Phocoena phocoena...... Gulf of Maine/Bay of -/-, N 95,543 (0.31; 74,034; 851 164
Fundy Stock. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal......................... Phoca vitulina......... Western North Atlantic -/-, N 61,336 (0.08; 57,637; 1,729 339
Stock. 2018).
Gray seal \4\....................... Halichoerus grypus..... Western North Atlantic -/-, N 27,300 (0.22; 22,785; 1,389 4,453
Stock. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 and serious
injury (M/SI) 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="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>. CV
is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused M/SI plus serious injury from all sources combined (e.g., commercial
fisheries, ship strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
approximately 451,431. The annual mortality and serious injury (M/SI) value given is for the total stock.
\5\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species web page to recognize the population estimate for NARWs is now
below 350 animals (<a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>).
A detailed description of the species likely to be affected by
Atlantic Shores' activities, including information regarding population
trends and threats, and local occurrence, were provided in the Federal
Register notice for the proposed IHA (87 FR 4200; January 27, 2022).
Since that time, we are not aware of any changes in the status of these
species and stocks or other relevant new information; therefore,
detailed descriptions are not provided here. Please refer to that
Federal Register notice for those descriptions. Please also refer to
NMFS's website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for
generalized species accounts.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (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 4.
Table 4--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth, 2013).
[[Page 24117]]
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Fifteen marine mammal species (13 cetacean and 2 pinniped (both phocid)
species) have the reasonable potential to co-occur with the survey
activities. Please refer back to Table 3. Of the cetacean species that
may be present, five are classified as low-frequency cetaceans (i.e.,
all mysticete species), seven are classified as mid-frequency cetaceans
(i.e., all delphinid species and the sperm whale), and one is
classified as a high-frequency cetacean (i.e., harbor porpoise).
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from the deployed acoustic sources
have the potential to result in behavioral harassment of marine mammals
in the vicinity of the study area. The Federal Register notice for the
proposed IHA (87 FR 4200; January 27, 2022) included a discussion of
the effects of anthropogenic noise, ship strike, stress, and potential
impacts on marine mammals and their habitat, therefore that information
is not repeated here; please refer to the Federal Register notice (87
FR 4200; January 27, 2022) for that information.
Estimated Take
This section provides the number of incidental takes authorized
through this 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 will be 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 and the required mitigation measures,
Level A harassment is neither anticipated nor will be authorized. Take
by Level A harassment (injury) is considered unlikely, even absent
mitigation, based on the characteristics of the signals produced by the
acoustic sources planned for use, and will not be authorized.
Implementation of required mitigation further reduces this potential.
Furthermore and as previously described, no serious injury or mortality
is anticipated or will be 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 authorized take
estimate.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source (e.g., frequency, predictability, duty cycle), the environment
(e.g., bathymetry), and the receiving animals (hearing, motivation,
experience, demography, behavioral context) and can be difficult to
predict (Southall et al., 2007, Ellison et al., 2012). 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 may be behaviorally harassed (i.e., Level
B harassment) when exposed to underwater anthropogenic noise above
received levels of 160 dB re 1 [mu]Pa (rms) for the impulsive sources
(i.e., sparkers) and non-impulsive, intermittent sources (e.g., CHIRPs)
evaluated here for Atlantic Shores' survey activities.
Level A harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(NMFS, 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). These thresholds are provided
in the table below (Table 5). The references, analysis, and methodology
used in the development of the thresholds are described in NMFS (2018)
Technical Guidance, which may be accessed 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>.
Table 5--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset acoustic thresholds * (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: Lpk,flat: 219 dB; Cell 2: LE,LF,24h: 199 dB.
LE,LF,24h: 183 dB.
Mid-Frequency (MF) Cetaceans........... Cell 3: Lpk,flat: 230 dB; Cell 4: LE,MF,24h: 198 dB.
LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: Lpk,flat: 202 dB; Cell 6: LE,HF,24h: 173 dB.
LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: Lpk,flat: 218 dB; Cell 8: LE,PW,24h: 201 dB.
LE,PW,24h: 185 dB.
[[Page 24118]]
Otariid Pinnipeds (OW) (Underwater).... Cell 9: Lpk,flat: 232 dB; Cell 10: LE,OW,24h: 219 dB.
LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for
calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level
thresholds associated with impulsive sounds, these thresholds should also be considered.
Note: Peak sound pressure (Lpk) has a reference value of 1 [micro]Pa, and cumulative sound exposure level (LE)
has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to reflect American
National Standards Institute standards (ANSI, 2013). However, ANSI defines peak sound pressure as
incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript
``flat'' is being included to indicate peak sound pressure should be flat weighted or unweighted within the
generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates
the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds)
and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could
be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible,
it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be
exceeded.
Similar to the past IHAs issued to Atlantic Shores and published in
the Federal Register (see the 2020 notice (85 FR 7926; February 12,
2020)), the planned activities for 2022 include the use of impulsive
(i.e., sparkers) and non-impulsive (e.g., CHIRPs) sources. Carrying
through the same logic as the locations, species, survey durations,
equipment used, and source levels are all of a similar scope previously
analyzed for Atlantic Shores' surveys, and as discussed previously,
NMFS has concluded that Level A harassment is not a reasonably likely
outcome for marine mammals exposed to noise through use of the sources
planned for use here due to the mitigation measures Atlantic Shores
will implement, and the potential for Level A harassment is not
evaluated further in this document. Atlantic Shores did not request
authorization of take by Level A harassment, and no take by Level A
harassment will be authorized by NMFS.
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.
NMFS has developed a user-friendly methodology for estimating the
extent of the Level B harassment isopleths associated with relevant HRG
survey equipment (NMFS, 2020). This methodology incorporates frequency
and directionality to refine estimated ensonified zones. For acoustic
sources that operate with different beamwidths, the maximum beamwidth
was used, and the lowest frequency of the source was used when
calculating the frequency-dependent absorption coefficient (see Table
6).
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG survey equipment and, therefore, recommends that source levels
provided by Crocker and Fratantonio (2016) be incorporated in the
method described above to estimate isopleth distances to harassment
thresholds. In cases when the source level for a specific type of HRG
equipment is not provided in Crocker and Fratantonio (2016), NMFS
recommends that either the source levels provided by the manufacturer
be used, or, in instances where source levels provided by the
manufacturer are unavailable or unreliable, a proxy from Crocker and
Fratantonio (2016) be used instead. Table 2 shows the HRG equipment
types that may be used during the planned surveys and the source levels
associated with those HRG equipment types. The computations and results
from the Level B ensonified area analysis are displayed in Tables 6 and
7 below.
Table 6--Inputs Into the Level B Harassment Spreadsheet for High Resolution Geophysical Sources Using a Transmission Loss Coefficient of 20
--------------------------------------------------------------------------------------------------------------------------------------------------------
Input values in spreadsheet Computed values
----------------------------------------------------------------- (meters)
-------------------------
Source name Threshold Source Frequency Beamwidth Water depth Slant Horizontal
level level (kH) (degrees) (m) distance of threshold
(dBrms) threshold range (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
SIG ELC 820 Sparker at 750J *................................ 160 203 0.01 180 5 141 141
Geo Marine Survey System 2D SUHRS at 400J.................... 160 195 0.2 180 5 56 56
Edgetech 2000-DSS............................................ 160 195 2 24 5 56 1
Edgetech 216................................................. 160 179 2 24 5 9 1
Edgetech 424................................................. 160 180 4 71 10 10 6
Edgetech 512i................................................ 160 179 0.7 80 10 9 6
Pangeosubsea Sub-Bottom Imager \TM\.......................... 160 190 4 120 5 32 9
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Used as a proxy for the Applied Acoustics Dura-Spark 240 because the specific energy setting is not described in Crocker and Franantonio (2016).
[[Page 24119]]
Table 7--Maximum Distances to Level B 160 dBRMS Threshold by Equipment
Type Operating Below 180 kHz
------------------------------------------------------------------------
Distances to
HRG survey equipment (sub- Representative level B
bottom profiler) equipment type threshold (m)
------------------------------------------------------------------------
Sparker........................ Applied Acoustics Dura- 141
Spark 240.
Geo Marine Survey 56
System 2D SUHRS.
CHIRP.......................... Edgetech 2000-DSS...... 56
Edgetech 216........... 9
Edgetech 424........... 10
Edgetech 512i.......... 9
Pangeosubsea Sub-Bottom 32
Imager \TM\.
------------------------------------------------------------------------
Results of modeling using the methodology described and shown above
indicated that, of the HRG survey equipment planned for use by Atlantic
Shores that has the potential to result in Level B harassment of marine
mammals, the Applied Acoustics Dura-Spark 240 would produce the largest
Level B harassment isopleth (141 m; please refer back to Table 7 above,
as well as Table 6-1 in Atlantic Shores' IHA application). Estimated
Level B harassment isopleths associated with the CHIRP equipment
planned for use are also found in Table 7. All CHIRPs equipment
produced Level B harassment isopleths much smaller than the Applied
Acoustics Dura-Spark 240 sparker did.
Although Atlantic Shores does not expect to use sparker sources on
all planned survey days and during the entire duration that surveys are
likely to occur, Atlantic Shores assumed, for purposes of analysis,
that the sparker would be used on all survey days and across all hours.
This is a conservative approach, as the actual sources used on
individual survey days will likely produce smaller harassment
distances.
Marine Mammal Occurrence
In this section, we provide the information about 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 and the Marine-life Data and Analysis
Team, based on the best available marine mammal data from 1992-201
obtained in a collaboration between Duke University, the Northeast
Regional Planning Body, the University of North Carolina Wilmington,
the Virginia Aquarium and Marine Science Center, and NOAA (Roberts et
al., 2016a; Curtice et al., 2018), represent the best available
information regarding marine mammal densities in the survey area. More
recently, these data have been updated with new modeling results and
include density estimates for pinnipeds (Roberts et al., 2016b, 2017,
2018).
The density data presented by Roberts et al. (2016b, 2017, 2018,
2020) incorporates aerial and shipboard line-transect survey data from
NMFS and other organizations and incorporates data from eight
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., 2016a). In subsequent years, certain
models have been updated based on additional data as well as certain
methodological improvements. More information is available online at
<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>. Marine mammal density
estimates in the survey area (animals/km\2\) were obtained using the
most recent model results for all taxa (Roberts et al., 2016b, 2017,
2018, 2020). The updated models incorporate additional sighting data,
including sightings from NOAA's Atlantic Marine Assessment Program for
Protected Species (AMAPPS) surveys.
For the exposure analysis, density data from Roberts et al. (2016b,
2017, 2018, 2021) were mapped using a geographic information system
(GIS). For each of the survey areas (i.e., Lease Area, ECR North, ECR
South), the densities of each species as reported by Roberts et al.
(2016b, 2017, 2018, 2021) were averaged by season; thus, a density was
calculated for each species for spring, summer, fall and winter. To be
conservative, the greatest seasonal density calculated for each species
was then carried forward in the exposure analysis. Estimated seasonal
densities (animals per km\2\) of all marine mammal species that may be
taken during the planned survey activities, for all survey areas are
shown in Tables C-1, C-2 and C-3 in Appendix C of Atlantic Shores' IHA
application. The maximum seasonal density values used to estimate take
numbers are shown in Table 8 below. Below, we discuss how densities
were assumed to apply to specific species for which the Roberts et al.
(2016b, 2017, 2018, 2021) models provide results at the genus or guild
level.
Table 8--Maximum Seasonal Marine Mammal Densities (Number of Animals per
100 km\2\) in the Survey Areas
[Appendix C of Atlantic Shores' IHA application]
------------------------------------------------------------------------
Maximum seasonal densities
--------------------------------
Species groups Species Lease
area ECR north ECR south
------------------------------------------------------------------------
Cetaceans............ North Atlantic 0.499 0.182 0.179
right whale.
Humpback whale.. 0.076 0.082 0.103
Fin whale....... 0.100 0.080 0.057
Sei whale....... 0.004 0.004 0.002
Minke whale..... 0.055 0.017 0.019
Sperm whale..... 0.013 0.005 0.003
Long-finned 0.036 0.012 0.009
pilot whale.
Bottlenose ......... 21.675 58.524
dolphin
(Western North
Atlantic
coastal--migrat
ory).
[[Page 24120]]
Bottlenose 21.752 21.675 58.524
dolphin
(Western North
Atlantic--offsh
ore).
Common dolphin.. 3.120 1.644 1.114
Atlantic white- 0.487 0.213 0.152
sided dolphin.
Atlantic spotted 0.076 0.059 0.021
dolphin.
Risso's dolphin. 0.010 0.001 0.002
Harbor porpoise. 2.904 7.357 2.209
Pinnipeds............ Gray seal....... 4.918 9.737 6.539
Harbor seal..... 4.918 9.737 6.539
------------------------------------------------------------------------
Note: Many of the densities provided in this table have been previously
used and applied during the 2020 IHA to Atlantic Shores and its
subsequent renewal and remain applicable.
For bottlenose dolphin densities, Roberts et al. (2016b, 2017,
2018) does not differentiate by stock. The Western North Atlantic
northern migratory coastal stock is generally expected to occur only in
coastal waters from the shoreline to approximately the 20 m (65 ft)
isobath (Hayes et al., 2018). As the Lease Area is located within
depths exceeding 20 m, where the offshore stock would generally be
expected to occur, all calculated bottlenose dolphin exposures within
the Lease Area were assigned to the offshore stock. However, both
stocks have the potential to occur in the ECR North and ECR South
survey areas. To account for the potential for mixed stocks within ECR
North and South, the survey areas ECR North and South were divided
approximately along the 20 m depth isobath, which roughly corresponds
to the 10-fathom contour on NOAA navigation charts. As approximately 33
percent of ECR North and ECR South are 20 m or less in depth, 33
percent of the estimated take calculation for bottlenose dolphins was
applied to the Western North Atlantic northern migratory coastal stock
and the remaining 67 percent was applied to the offshore stock.
For these surveys, Atlantic Shores used the same pilot whale
densities that were previously used in the 2020 and subsequent 2021
(renewal) IHAs. To better estimate the number of pilot whales that
could potentially be impacted by the planned surveys, although exposure
is noted as unlikely to occur in the IHA application, Atlantic Shores
adjusted the take estimate by average group size.
Because the seasonality, feeding preferences, and habitat use by
gray seals often overlaps with that of harbor seals in the survey
areas, it was assumed that modeled takes of seals could occur to either
of the respective species. Furthermore, as the density models produced
by Roberts et al. (2016b, 2017, 2018) do not differentiate between the
different pinniped species, the same density estimates were applied to
both seal species. Because of this, pinniped density values reported in
Atlantic Shores' IHA application are described as ``seals'' and not
species-specific.
Since Atlantic Shores' 2020 and 2021 (renewal) IHAs for HRG surveys
were completed, the NARW density data has been updated. This is due to
the inclusion of three new datasets: 2011-2015 Northeast Large Pelagic
Survey Cooperative, 2017-2018 Marine Mammal Surveys of the Wind Energy
Areas conducted by the New England Aquarium, and 2017-2018 New York
Bight Whale Monitoring Program surveys conducted by the New York State
Department of Environmental conservation (NYSDEC). This new density
data shows distribution changes that are likely influenced by
oceanographic and prey covariates in the whale density model (Roberts
et al., 2021).
Take Calculation and Estimation
Here we describe how the information provided above is brought
together to produce a quantitative take estimate.
In order to estimate the number of marine mammals predicted to be
exposed to sound levels that would result in harassment, radial
distances to predicted isopleths corresponding to Level B harassment
thresholds are calculated, as described above. The maximum distance
(i.e., 141 m distance associated with the Applied Acoustics Dura-Spark
240) to the Level B harassment criterion and the estimated distance
traveled per day by a given survey vessel (i.e., 55 km (34.2 mi)) are
then used to calculate the daily ensonified area, or zone of influence
(ZOI) around the survey vessel.
Atlantic Shores estimates that surveys will achieve a maximum daily
track line distance of 55 km per day (24-hour period) during the IHA
effective period. This distance accounts for the vessel traveling at
approximately 3.5 knots and accounts for non-active survey periods.
Based on the maximum estimated distance to the Level B harassment
threshold of 141 m (Table 7) and the maximum estimated daily track line
distance of 55 km across all survey sites, an area of 15.57 km\2\ would
be ensonified to the Level B harassment threshold per day across all
survey sites during Atlantic Shores' HRG surveys (Table 9) based on the
following formula:
Mobile Source ZOI = (Distance/day x 2r) + [pi]r\2\
Where:
Distance/day = the maximum distance a survey vessel could travel in
a 24-hour period; and
r = the maximum radial distance from a given sound source to the
NOAA Level A or Level B harassment thresholds.
[[Page 24121]]
Table 9--Maximum HRG Survey Area Distances for Atlantic Shores' Surveys
----------------------------------------------------------------------------------------------------------------
Number of Survey Maximum radial Calculated ZOI Total annual
Survey area active survey distances per distance (r) per day ensonified
days day in km (mi) in m (ft) (km\2\) area (km\2\)
----------------------------------------------------------------------------------------------------------------
Lease Area...................... 120 55 (34.2) 141 (463) 15.57 1,868.4
ECR North....................... 180 .............. .............. .............. 2,802.6
ECR South....................... 60 .............. .............. .............. 934.2
----------------------------------------------------------------------------------------------------------------
As described above, this is a conservative estimate as it assumes
the HRG source that results in the greatest isopleth distance to the
Level B harassment threshold would be operated at all times during the
entire survey, which may not ultimately occur.
The number of marine mammals expected to be incidentally taken per
day is then calculated by estimating the number of each species
predicted to occur within the daily ensonified area (animals/km\2\),
incorporating the maximum seasonal estimated marine mammal densities as
described above. Estimated numbers of each species taken per day across
all survey sites are then multiplied by the total number of survey days
(i.e., 360). The product is then rounded, to generate an estimate of
the total number of instances of harassment expected for each species
over the duration of the survey. A summary of this method is
illustrated in the following formula with the resulting take of marine
mammals is shown below in Table 10:
Estimated Take = D x ZOI x # of days
Where:
D = average species density (per km\2\); and
ZOI = maximum daily ensonified area to relevant thresholds.
Table 10--Numbers of Incidental Takes of Marine Mammals Authorized and Authorized Takes as a Percentage of
Population
----------------------------------------------------------------------------------------------------------------
Total
-------------------------------
Calculated Takes proposed Authorized
takes by for Level B Authorized takes (Level B
Species Level B harassment to takes (Level B harassment) as
harassment \e\ be authorized harassment) a percentage
\f\ \g\ of population/
stock \a\ \g\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale...................... 17 17 17 4.62
Humpback whale.................................. 4 \c\ 8 8 0.57
Fin whale....................................... 5 5 5 0.07
Sei whale....................................... 2 2 2 0.03
Minke whale..................................... 2 2 2 0.01
Sperm whale..................................... 1 1 1 0.03
Long-finned pilot whale......................... 20 20 20 0.05
Bottlenose dolphin (W.N. Atlantic Coastal 385 385 385 5.80
Migratory).....................................
Bottlenose dolphin (W.N. Atlantic Offshore)..... 1,175 1,175 1,175 1.87
Common dolphin (short-beaked)................... 406 \b\ 560 560 0.32
Atlantic white-sided dolphin.................... 17 17 17 0.02
Atlantic spotted dolphin........................ 50 \d\ 100 100 0.25
Risso's dolphin................................. 30 30 30 0.08
Harbor porpoise................................. 282 282 282 0.30
Harbor seal..................................... 426 426 426 0.56
Gray seal....................................... 426 426 426 1.56
----------------------------------------------------------------------------------------------------------------
\a\ Calculated percentages of population/stock were based on the population estimates (Nest) found in the NMFS's
draft 2021 U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessment on NMFS's website (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>).
\b\ Based on information obtained from the monitoring report provided to NMFS after the completion of the 2020
survey, as well as information provided by Atlantic Shores (P. Phifer, personal communication, October 29,
2021), NMFS had proposed to increase the number of authorized takes (by Level B harassment only) for common
dolphins.
\c\ Based on recent data from King et al. (2021) where humpback whales were the most commonly sighted species in
the New York Bight, NMFS had proposed to increase the take of humpback whales by assuming that Atlantic
Shores' four modeled exposures would be of groups rather than individuals, and therefore multiplied by an
average group size of two to yield eight.
\d\ Based on information obtained from the monitoring report provided to NMFS after the completion of the 2020
survey, as well as information provided by Atlantic Shores (P. Phifer, personal communication, October 29,
2021), NMFS had proposed to increase the number of authorized takes (by Level B harassment only) for Atlantic
spotted dolphins.
\e\ These values were originally proposed by Atlantic Shores.
\f\ These values were proposed by NMFS.
\g\ These values have been authorized by NMFS.
The original take numbers calculated and requested by Atlantic
Shores, the proposed take numbers from NMFS, and the authorized take
numbers are shown in Table 10. As noted within Atlantic Shores' IHA
application and discussed within the renewal IHA application (see
Atlantic Shores Offshore Wind, 2021), Atlantic Shores made an
adjustment for Risso's dolphins, common dolphins, and long-finned pilot
whales based on typical pod and group sizes, which
[[Page 24122]]
yielded the values described above. NMFS agrees with this approach for
these three species, as described in the IHA applications.
In the proposed notice (87 FR 4200; January 27, 2022), NMFS
proposed an adjustment for three cetacean species: Humpback whales,
common dolphins, and Atlantic spotted dolphins. Below we describe our
authorized take numbers based on these adjustments.
Estimated takes of common dolphins were increased from the density-
based estimate based on information provided by Atlantic Shores (P.
Phifer, personal communication, October 29, 2021) and sightings
described in the 2020 monitoring report. Based on these previous
observations, exposures of common dolphins above the 160-dB harassment
threshold were estimated at 1.55 per day. Assuming that this same
exposure rate continues for the presently planned activity yields the
estimate provided in Table 10.
Based on recent information from King et al. (2021) that
demonstrated that the humpback whale is commonly sighted along the New
York Bight area, NMFS determined that the humpback whale take request
may be too low given the occurrence of animals near the survey area.
Because of this, NMFS proposes to double the requested take to account
for underestimates to the actual occurrence of this species within the
density data.
Previously, 100 takes of Atlantic spotted dolphins, by Level B
harassment, were authorized to Atlantic Shores during their 2020 IHA.
Based on a lack of sightings in the 2020 field season per the submitted
monitoring report, Atlantic Shores had requested and been authorized
half of these takes (50 Level B harassment) during their 2021 field
season for their renewal IHA. However, based on information provided by
Atlantic Shores (P. Phifer, personal communication, October 29, 2021)
as the monitoring report for the 2021 field season is not yet
available, NMFS has increased the take previously requested by Atlantic
Shores from 50 to 100 to account for the numerous sightings of Atlantic
spotted dolphins that had already occurred early into Atlantic Shores'
2021 field season (17 takes out of 50 authorized for the renewal IHA).
As described above, Roberts et al. (2018) produced density models
for all seals and did not differentiate by seal species. The take
calculation methodology as described above resulted in an estimate of
852 total seal takes for both species. Based on this estimate, Atlantic
Shores has requested 852 takes total for pinnipeds (426 each species),
based on the use of the same density for both species as they are known
to overlap in habitat use, foraging, and spatial scale. Furthermore, as
the density estimates were not split by species in Roberts et al.
(2016b, 2017, 2018) this approach assumes that the likelihood of either
species occurring during the survey is equal. We think this is a
reasonable approach and therefore propose to authorize the requested
amount of take, as shown in Table 10.
Worth noting is the authorized take of NARWs, which stems from an
increase in the density of NARWs at the survey site. Atlantic Shores
used information from Roberts et al. (2020) that demonstrated that the
density of NARWs has increased by approximately 40 percent in some
portions of the survey area compared to the 2020 IHA (see Table 11),
which justifies the total take number presented above in Table 10.
While past monitoring reports (see the 2020 report on NMFS' website)
have reported no observations of NARWs during the 2020 surveys, NMFS
agrees with the approach taken by Atlantic Shores as using the best
available science to be conservative and authorizes 17 takes by Level B
harassment only of NARWs during the surveys.
Table 11--Changes in North Atlantic Right Whale Densities in the Survey Sites From the 2020 IHA to the 2022 IHA per Data From Roberts et al. (2020)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Winter Spring Summer Fall
-------------------------------------------------------------------------------------------------------
2020 IHA 2022 IHA 2020 IHA 2022 IHA 2020 IHA 2022 IHA 2020 IHA 2022 IHA
--------------------------------------------------------------------------------------------------------------------------------------------------------
Lease Area...................................... 0.087 0.499 0.060 0.426 0.008 0.002 0.006 0.009
Northern ECR.................................... 0.068 0.182 0.056 0.149 0.008 0.001 0.006 0.011
Southern ECR.................................... 0.073 0.179 0.055 0.097 0.007 0.000 0.006 0.005
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 may consider such things as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
Mitigation Measures
NMFS requires the following mitigation measures be implemented
during Atlantic Shores' marine site characterization surveys.
Additionally, Atlantic Shores must abide by all the marine mammal
relevant conditions in
[[Page 24123]]
the NOAA Fisheries Greater Atlantic Regional Office (GARFO)
programmatic consultation (specifically Project Design Criteria (PDC)
4, 5, and 7) regarding geophysical surveys along the U.S. Atlantic
coast in the three Atlantic Renewable Energy Regions (NOAA GARFO, 2021;
<a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>), pursuant to Section 7 of the Endangered Species Act.
Marine Mammal Exclusion Zones and Level B Harassment Zones
Marine mammal Exclusion Zones will be established around the HRG
survey equipment and monitored by PSOs. These PSOs will be NMFS-
approved visual PSOs. Based upon the acoustic source in use (impulsive:
Sparkers; non-impulsive: Non-parametric sub-bottom profilers), a
minimum of one PSO must be on duty, per source vessel, during daylight
hours and two PSOs must be on duty, per source vessel, during nighttime
hours. These PSO will monitor Exclusion Zones based upon the radial
distance from the acoustic source rather than being based around the
vessel itself. The Exclusion Zone distances are as follows:
<bullet> A 500 m Exclusion Zone for NARWs during use of specified
acoustic sources (impulsive: Sparkers; non-impulsive: Non-parametric
sub-bottom profilers).
<bullet> A 100 m Exclusion Zone for all other marine mammals
(excluding NARWs) during use of specified acoustic sources (except as
specified below). All visual monitoring must begin no less than 30
minutes prior to the initiation of the specified acoustic source and
must continue until 30 minutes after use of specified acoustic sources
ceases.
If a marine mammal were detected approaching or entering the
Exclusion Zones during the HRG survey, the vessel operator will adhere
to the shutdown procedures described below to minimize noise impacts on
the animals. These stated requirements will be included in the site-
specific training to be provided to the survey team.
Ramp-Up of Survey Equipment and Pre-Clearance of the Exclusion Zones
When technically feasible, a ramp-up procedure will be used for HRG
survey equipment capable of adjusting energy levels at the start or
restart of survey activities. A ramp-up will begin with the powering up
of the smallest acoustic HRG equipment at its lowest practical power
output appropriate for the survey. The ramp-up procedure will be used
in order to provide additional protection to marine mammals near the
survey area by allowing them to vacate the area prior to the
commencement of survey equipment operation at full power. When
technically feasible, the power will then be gradually turned up and
other acoustic sources would be added. All ramp-ups shall be scheduled
so as to minimize the time spent with the source being activated.
Ramp-up activities will be delayed if a marine mammal(s) enters its
respective Exclusion Zone. Ramp-up will continue if the animal has been
observed exiting its respective Exclusion Zone or until an additional
time period has elapsed with no further sighting (i.e., 15 minutes for
small odontocetes and seals; 30 minutes for all other species).
Atlantic Shores will implement a 30 minute pre-clearance period of
the Exclusion Zones prior to the initiation of ramp-up of HRG
equipment. The operator must notify a designated PSO of the planned
start of ramp-up where the notification time should not be less than 60
minutes prior to the planned ramp-up. This will allow the PSOs to
monitor the Exclusion Zones for 30 minutes prior to the initiation of
ramp-up. Prior to ramp-up beginning, Atlantic Shores must receive
confirmation from the PSO that the Exclusion Zone is clear prior to
proceeding. During this 30 minute pre-start clearance period, the
entire applicable Exclusion Zones must be visible. The exception to
this would be in situations where ramp-up may occur during periods of
poor visibility (inclusive of nighttime) as long as appropriate visual
monitoring has occurred with no detections of marine mammals in 30
minutes prior to the beginning of ramp-up. Acoustic source activation
may only occur at night where operational planning cannot reasonably
avoid such circumstances.
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 Exclusion
Zone. If a marine mammal is observed within an Exclusion Zone during
the pre-clearance period, ramp-up may not begin until the animal(s) has
been observed exiting its respective Exclusion Zone or until an
additional time period has elapsed with no further sighting (i.e., 15
minutes for small odontocetes and pinnipeds; 30 minutes for all other
species). If a marine mammal enters the Exclusion Zone during ramp-up,
ramp-up activities must cease and the source must be shut down. Any PSO
on duty has the authority to delay the start of survey operations if a
marine mammal is detected within the applicable pre-start clearance
zones.
The pre-clearance zones will be:
<bullet> 500 m for all ESA-listed species (North Atlantic right,
sei, fin, sperm whales); and
<bullet> 100 m for all other marine mammals.
If any marine mammal species that are listed under the ESA are observed
within the clearance zones, the 30 minute clock must be paused. If the
PSO confirms the animal has exited the zone and headed away from the
survey vessel, the 30 minute clock that was paused may resume. The pre-
clearance clock will reset to 30 minutes if the animal dives or visual
contact is otherwise lost.
If the acoustic source is shut down for brief periods (i.e., less
than 30 minutes) for reasons other than implementation of prescribed
mitigation (e.g., mechanical difficulty), it may be activated again
without ramp-up if PSOs have maintained constant visual observation and
no detections of marine mammals have occurred within the applicable
Exclusion Zone. For any longer shutdown, pre-start clearance
observation and ramp-up are required.
Activation of survey equipment through ramp-up procedures may not
occur when visual detection of marine mammals within the pre-clearance
zone is not expected to be effective (e.g., during inclement conditions
such as heavy rain or fog).
The acoustic source(s) must be deactivated when not acquiring data
or preparing to acquire data, except as necessary for testing.
Unnecessary use of the acoustic source shall be avoided.
Shutdown Procedures
An immediate shutdown of the impulsive HRG survey equipment (Table
7) will be required if a marine mammal is sighted entering or within
its respective Exclusion Zone(s). Any PSO on duty has the authority to
call for a shutdown of the acoustic source if a marine mammal is
detected within the applicable Exclusion Zones. Any disagreement
between the PSO and vessel operator should be discussed only after
shutdown has occurred. The vessel operator would establish and maintain
clear lines of communication directly between PSOs on duty and crew
controlling the HRG source(s) to ensure that shutdown commands are
conveyed swiftly while allowing PSOs to maintain watch.
[[Page 24124]]
The shutdown requirement is waived for small delphinids (belonging
to the genera of the Family Delpinidae: Delphinus, Lagenorhynchus,
Stenella, or Tursiops) and pinnipeds if they are visually detected
within the applicable Exclusion Zones. 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 applicable Level B
harassment zone, shutdown will occur. In the event of uncertainty
regarding the identification of a marine mammal species (i.e., such as
whether the observed marine mammal belongs to Delphinus,
Lagenorhynchus, Stenella, or Tursiops for which shutdown is waived,
PSOs must use their best professional judgement in making the decision
to call for a shutdown.
Specifically, if a delphinid from the specified genera or a
pinniped is visually detected approaching the vessel (i.e., to bow
ride) or towed equipment, shutdown is not required.
Upon implementation of a shutdown, the source may be reactivated
after the marine mammal has been observed exiting the applicable
Exclusion Zone or following a clearance period of 15 minutes for harbor
porpoises and 30 minutes for all other species where there are no
further detections of the marine mammal.
Shutdown, pre-start clearance, and ramp-up procedures are not
required during HRG survey operations using only non-impulsive sources
(e.g., parametric sub-bottom profilers) other than non-parametric sub-
bottom profilers (e.g., CHIRPs). Pre-clearance and ramp-up, but not
shutdown, are required when using non-impulsive, non-parametric sub-
bottom profilers.
Seasonal Operating Requirements
As described in the proposed Notice, a section of the survey area
partially overlaps with a portion of a North Atlantic right whale SMA
off the port of New York/New Jersey. This SMA is active from November 1
through April 30 of each year. All survey vessels, regardless of
length, would be required to adhere to vessel speed restrictions (<10
knots) when operating within the SMA during times when the SMA is
active. In addition, between watch shifts, members of the monitoring
team would consult NMFS' NARW reporting systems for the presence of
NARWs throughout survey operations. Members of the monitoring team
would also monitor the NMFS NARW reporting systems for the
establishment of Dynamic Management Areas (DMA). NMFS may also
establish voluntary right whale Slow Zones any time a right whale (or
whales) is acoustically detected. Atlantic Shores should be aware of
this possibility and remain attentive in the event a Slow Zone is
established nearby or overlapping the survey area (Table 12).
Table 12--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
Restrictions Within the Survey Areas
----------------------------------------------------------------------------------------------------------------
Survey area Species DMA restrictions Slow zones SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area...................... North Atlantic If established by NMFS, all of N/A.
right whale Atlantic Shores' vessels will abide
(Eubalaena by the described restrictions.
glacialis).
ECR North....................... November 1 through
July 31 (Raritan
Bay).
ECR South....................... N/A.
----------------------------------------------------------------------------------------------------------------
Note: More information on Ship Strike Reduction for the North Atlantic right whale can be found at NMFS'
website: <a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales">https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales</a>.
There are no known marine mammal rookeries or mating or calving
grounds in the survey area that would otherwise potentially warrant
increased mitigation measures for marine mammals or their habitat (or
both). The survey activities would occur in an area that has been
identified as a biologically important area for migration for NARWs.
However, given the small spatial extent of the survey area relative to
the substantially larger spatial extent of the right whale migratory
area and the relatively low amount of noise generated by the survey,
the survey is not expected to appreciably reduce the quality of
migratory habitat nor to negatively impact the migration of NARWs, thus
mitigation to address the survey's occurrence in NARW migratory habitat
is not warranted.
Vessel Strike Avoidance
Vessel operators must comply with the below measures except under
extraordinary circumstances when the safety of the vessel or crew is in
doubt or the safety of life at sea is in question. 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.
Survey vessel crewmembers responsible for navigation 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> Atlantic Shores will ensure that vessel operators and crew
maintain a vigilant watch for cetaceans and pinnipeds and slow down,
stop their vessels, or alter course, as appropriate and regardless of
vessel size, to avoid striking any marine mammal. A single marine
mammal at the surface may indicate the presence of additional submerged
animals in the vicinity of the vessel; therefore, precautionary
measures should always be exercised. A visual observer aboard the
vessel must monitor a vessel strike avoidance zone around the vessel
(species-specific distances detailed 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 marine mammal 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 mammals. All vessels, regardless of size, must observe a
10-knot speed restriction in specific areas designated by NMFS for the
protection of NARWs from vessel strikes, including seasonal management
areas (SMAs) and dynamic management areas (DMAs) when in effect. See
<a href="http://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales">www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales</a> for specific detail
regarding these areas.
<bullet> All vessels must reduce their speed to 10-knots or less
when mother/calf pairs, pods, or large assemblages of cetaceans are
observed near a vessel;
<bullet> All vessels must maintain a minimum separation distance of
500 m
[[Page 24125]]
(1,640 ft) from right whales and other ESA-listed species. If an ESA-
listed species is sighted within the relevant separation distance, the
vessel must steer a course away at 10-knots or less until the 500 m
separation distance has been established. If a whale is observed but
cannot be confirmed as a species that is not ESA-listed, the vessel
operator must assume that it is an ESA-listed species and take
appropriate action.
<bullet> All vessels must maintain a minimum separation distance of
100 m (328 ft) from non-ESA-listed baleen whales.
<bullet> All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50 m (164 ft) from
all other marine mammals, with an understanding that, at times, this
may not be possible (e.g., for animals that approach the vessel, bow-
riding species).
<bullet> When marine mammal 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, reduce speed and shift the engine
to neutral). This does not apply to any vessel towing gear or any
vessel that is navigationally constrained.
Members of the monitoring team will consult NMFS NARW reporting
system and Whale Alert, daily and as able, for the presence of NARWs
throughout survey operations, and for the establishment of a DMA. If
NMFS should establish a DMA in the survey area during the survey, the
vessels will abide by speed restrictions in the DMA.
Training
All PSOs must have completed a PSO training program and received
NMFS approval to act as a PSO for geophysical surveys. Documentation of
NMFS approval and most recent training certificates of individual PSOs'
successful completion of a commercial PSO training course must be
provided upon request. Further information can be found at
<a href="http://www.fisheries.noaa.gov/national/endangered-species-conservation/protected-species-observers">www.fisheries.noaa.gov/national/endangered-species-conservation/protected-species-observers</a>. In the event where third-party PSOs are
not required, crew members serving as lookouts must receive training on
protected species identification, vessel strike minimization
procedures, how and when to communicate with the vessel captain, and
reporting requirements.
Atlantic Shores shall instruct relevant vessel personnel with
regard to the authority of the marine mammal monitoring team, and shall
ensure that relevant vessel personnel and the marine mammal monitoring
team participate in a joint onboard briefing (hereafter PSO briefing),
led by the vessel operator and lead PSO, prior to beginning survey
activities to ensure that responsibilities, communication procedures,
marine mammal monitoring protocols, safety and operational procedures,
and IHA requirements are clearly understood. This PSO briefing must be
repeated when relevant new personnel (e.g., PSOs, acoustic source
operator) join the survey operations before their responsibilities and
work commences.
Survey-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. All vessel crew members must be
briefed in the identification of protected species that may occur in
the survey area and in regulations and best practices for avoiding
vessel collisions. Reference materials must be available aboard all
survey vessels for identification of listed species. The expectation
and process for reporting of protected species sighted during surveys
must be clearly communicated and posted in highly visible locations
aboard all survey vessels, so that there is an expectation for
reporting to the designated vessel contact (such as the lookout or the
vessel captain), as well as a communication channel and process for
crew members to do so. 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 Atlantic Shores' measures, as well as
other measures considered by NMFS, NMFS has determined that the
required mitigation measures provide the means effecting the least
practicable impact on the affected 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
action area. Effective reporting is critical to both 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).
<bullet> Mitigation and monitoring effectiveness.
Monitoring Measures
Atlantic Shores must use independent, dedicated, trained PSOs,
meaning that the PSOs must be employed by a third-party observer
provider, must 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 mammal and mitigation
requirements (including brief alerts regarding maritime hazards), and
[[Page 24126]]
must have successfully completed an approved PSO training course for
geophysical surveys. Visual monitoring must be performed by qualified,
NMFS-approved PSOs. PSO resumes must be provided to NMFS for review and
approval prior to the start of survey activities.
PSO names must be provided to NMFS by the operator for review and
confirmation of their approval for specific roles prior to commencement
of the survey. For prospective PSOs not previously approved, or for
PSOs whose approval is not current, NMFS must review and approve PSO
qualifications. Resumes should include information related to relevant
education, experience, and training, including dates, duration,
location, and description of prior PSO experience. Resumes must be
accompanied by relevant documentation of successful completion of
necessary training.
NMFS may approve PSOs as conditional or unconditional. A
conditionally-approved PSO may be one who is trained but has not yet
attained the requisite experience. An unconditionally-approved PSO is
one who has attained the necessary experience. For unconditional
approval, the PSO must have a minimum of 90 days at sea performing the
role during a geophysical survey, with the conclusion of the most
recent relevant experience not more than 18 months previous.
At least one of the visual PSOs aboard the vessel must be
unconditionally-approved. One unconditionally-approved visual PSO shall
be designated as the lead for the entire PSO team. This lead should
typically be the PSO with the most experience, would coordinate duty
schedules and roles for the PSO team, and serve as primary point of
contact for the vessel operator. To the maximum extent practicable, the
duty schedule shall be planned such that unconditionally-approved PSOs
are on duty with conditionally-approved PSOs.
PSOs must have successfully attained a bachelor's degree from an
accredited college or university with a major in one of the natural
sciences, a minimum of 30 semester hours or equivalent in the
biological sciences, and at least one undergraduate course in math or
statistics. The educational requirements may be waived if the PSO has
acquired the relevant skills through alternate experience. Requests for
such a waiver shall be submitted to NMFS and must include written
justification. Alternate experience that may be considered includes,
but is not limited to (1) secondary education and/or experience
comparable to PSO duties; (2) previous work experience conducting
academic, commercial, or government-sponsored marine mammal surveys;
and (3) previous work experience as a PSO (PSO must be in good standing
and demonstrate good performance of PSO duties).
PSOs must successfully complete relevant training, including
completion of all required coursework and passing (80 percent or
greater) a written and/or oral examination developed for the training
program.
PSOs must coordinate to ensure 360[deg] visual coverage around the
vessel from the most appropriate observation posts and shall conduct
visual observations using binoculars or night-vision equipment 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 four consecutive hours
followed by a break of at least two hours between watches and may
conduct a maximum of 12 hours of observation per 24-hour period.
Any observations of marine mammal by crew members aboard any vessel
associated with the survey shall be relayed to the PSO team.
Atlantic Shores must work with the selected third-party PSO
provider to ensure PSOs have all equipment (including backup equipment)
needed to adequately perform necessary tasks, including accurate
determination of distance and bearing to observed marine mammals, and
to ensure that PSOs are capable of calibrating equipment as necessary
for accurate distance estimates and species identification. Such
equipment, at a minimum, shall include:
<bullet> At least one thermal (infrared) imagine device suited for
the marine environment;
<bullet> Reticle binoculars (e.g., 7 x 50) of appropriate quality
(at least one per PSO, plus backups);
<bullet> Global Positioning Units (GPS) (at least one plus
backups);
<bullet> Digital cameras with a telephoto lens that is at least 300
millimeter (mm) or equivalent on a full-frame single lens reflex (SLR)
(at least one plus backups). The camera or lens should also have an
image stabilization system;
<bullet> Equipment necessary for accurate measurement of distances
to marine mammal;
<bullet> Compasses (at least one plus backups);
<bullet> Means of communication among vessel crew and PSOs; and
<bullet> Any other tools deemed necessary to adequately and
effectively perform PSO tasks.
The equipment specified above may be provided by an individual PSO,
the third-part PSO provider, or the operator, but Atlantic Shores is
responsible for ensuring PSOs have the proper equipment required to
perform the duties specified in the IHA.
During good conditions (e.g., daylight hours; Beaufort sea state 3
or less), PSOs shall conduct observations when the specified acoustic
sources are not operating for comparison of sighting rates and behavior
with and without use of the specified acoustic sources and between
acquisition periods, to the maximum extent practicable.
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 PSO(s)
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.
Atlantic Shores plans to utilize six PSOs across each vessel to
account for shift changes, with a total of 18 during these surveys (six
PSOs per vessel x three vessels). At a minimum, during all HRG survey
operations (e.g., any day on which use of an HRG source is planned to
occur), 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) and 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 four consecutive hours followed
by a break of at least two hours between watches and may conduct a
maximum of 12 hours of observation per 24-hr 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
[[Page 24127]]
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
(BSS) 3 or less), to the maximum extent practicable, PSOs would also
conduct observations when the acoustic source is not operating for
comparison of sighting rates and behavior with and without use of the
active acoustic sources. Any observations of marine mammals by crew
members aboard any vessel associated with the survey would be relayed
to the PSO team. Data on all PSO observations would be recorded based
on standard PSO collection requirements (see Reporting Measures). This
would include dates, times, and locations of survey operations; dates
and times of observations, location and weather; details of marine
mammal sightings (e.g., species, numbers, behavior); and details of any
observed marine mammal behavior that occurs (e.g., noted behavioral
disturbances).
Reporting Measures
Atlantic Shores shall submit a draft comprehensive report on all
activities and monitoring results within 90 days of the completion of
the survey or expiration of the IHA, whichever comes sooner. The report
must describe all activities conducted and sightings of marine mammals,
must provide full documentation of methods, results, and interpretation
pertaining to all monitoring, and must summarize the dates and
locations of survey operations and all marine mammals sightings (dates,
times, locations, activities, associated survey activities). The draft
report shall also include geo-referenced, time-stamped vessel
tracklines for all time periods during which acoustic sources were
operating. Tracklines should include points recording any change in
acoustic source status (e.g., when the sources began operating, when
they were turned off, or when they changed operational status such as
from full array to single gun or vice versa). GIS files shall be
provided in ESRI shapefile format and include the UTC date and time,
latitude in decimal degrees, and longitude in decimal degrees. All
coordinates shall be referenced to the WGS84 geographic coordinate
system. In addition to the report, all raw observational data shall be
made available. The report must summarize the information submitted in
interim monthly reports (if required) as well as additional data
collected. A final report must be submitted within 30 days following
resolution of any comments on the draft report. All draft and final
marine mammal and acoustic monitoring reports must be submitted to
<a href="/cdn-cgi/l/email-protection#d58587fb9c8185fb98babbbca1baa7bcbbb287b0a5baa7a1a695bbbab4b4fbb2baa3"><span class="__cf_email__" data-cfemail="ecbcbec2a5b8bcc2a183828598839e85828bbe899c839e989fac82838d8dc28b839a">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#e7aeb3b7c9b788938b88848ca789888686c9808891"><span class="__cf_email__" data-cfemail="8dc4d9dda3dde2f9e1e2eee6cde3e2ececa3eae2fb">[email protected]</span></a>.
PSOs must use standardized electronic data forms to record data.
PSOs shall record detailed information about any implementation of
mitigation requirements, including the distance of marine mammal to the
acoustic source and description of specific actions that ensued, the
behavior of the animal(s), any observed changes in behavior before and
after implementation of mitigation, and if shutdown was implemented,
the length of time before any subsequent ramp-up of the acoustic
source. If required mitigation was not implemented, PSOs should record
a description of the circumstances. At a minimum, the following
information must be recorded:
1. Vessel names (source vessel and other vessels associated with
survey), vessel size and type, maximum speed capability of vessel;
2. Dates of departures and returns to port with port name;
3. The lease number;
4. PSO names and affiliations;
5. Date and participants of PSO briefings;
6. Visual monitoring equipment used;
7. PSO location on vessel and height of observation location above
water surface;
8. Dates and times (Greenwich Mean Time) of survey on/off effort
and times corresponding with PSO on/off effort;
9. Vessel location (decimal degrees) when survey effort begins and
ends and vessel location at beginning and end of visual PSO duty
shifts;
10. Vessel location at 30-second intervals if obtainable from data
collection software, otherwise at practical regular interval;
11. Vessel heading and speed at beginning and end of visual PSO
duty shifts and upon any change;
12. Water depth (if obtainable from data collection software);
13. Environmental conditions while on visual survey (at beginning
and end of PSO shift and whenever conditions change significantly),
including BSS and any other relevant weather conditions including cloud
cover, fog, sun glare, and overall visibility to the horizon;
14. Factors that may contribute to impaired observations during
each PSO shift change or as needed as environmental conditions change
(e.g., vessel traffic, equipment malfunctions); and
15. Survey activity information (and changes thereof), such as
acoustic source power output while in operation, number and volume of
airguns operating in an array, tow depth of an acoustic source, and any
other notes of significance (i.e., pre-start clearance, ramp-up,
shutdown, testing, shooting, ramp-up completion, end of operations,
streamers, etc.).
Upon visual observation of any marine mammal, the following
information must be recorded:
1. Watch status (sighting made by PSO on/off effort, opportunistic,
crew, alternate vessel/platform);
2. Vessel/survey activity at time of sighting (e.g., deploying,
recovering, testing, shooting, data acquisition, other);
3. PSO who sighted the animal;
4. Time of sighting;
5. Initial detection method;
6. Sightings cue;
7. Vessel location at time of sighting (decimal degrees);
8. Direction of vessel's travel (compass direction);
9. Speed of the vessel(s) from which the observation was made;
10. 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;
11. Species reliability (an indicator of confidence in
identification);
12. Estimated distance to the animal and method of estimating
distance;
13. Estimated number of animals (high/low/best);
14. Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
15. 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);
16. Detailed behavior observations (e.g., number of blows/breaths,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior before and after point of closest approach);
17. Mitigation actions; description of any actions implemented in
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or
course alteration, etc.) and time and location of the action;
18. Equipment operating during sighting;
[[Page 24128]]
19. Animal's closest point of approach and/or closest distance from
the center point of the acoustic source; and
20. Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up) and time and location of the
action.
If a NARW is observed at any time by PSOs or personnel on any
survey vessels, during surveys or during vessel transit, Atlantic
Shores must report the sighting information to the NMFS North Atlantic
Right Whale Sighting Advisory System (866-755-6622) within two hours of
occurrence, when practicable, or no later than 24 hours after
occurrence. NARW sightings in any location may also be reported to the
U.S. Coast Guard via channel 16 and through the WhaleAlert app (<a href="https://www.whalealert.org">https://www.whalealert.org</a>).
In the event that Atlantic Shores personnel discover an injured or
dead marine mammal, regardless of the cause of injury or death. In the
event that personnel involved in the survey activities discover an
injured or dead marine mammal, Atlantic Shores must report the incident
to NMFS as soon as feasible by phone (866-755-6622) and by email
(<a href="/cdn-cgi/l/email-protection#1d73707b6e337a7c6f336e696f7c737974737a5d73727c7c337a726b"><span class="__cf_email__" data-cfemail="bcd2d1dacf92dbddce92cfc8ceddd2d8d5d2dbfcd2d3dddd92dbd3ca">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#a3f3f18deaf7f38deecccdcad7ccd1cacdc4f1c6d3ccd1d7d0e3cdccc2c28dc4ccd5"><span class="__cf_email__" data-cfemail="da8a88f4938e8af497b5b4b3aeb5a8b3b4bd88bfaab5a8aea99ab4b5bbbbf4bdb5ac">[email protected]</span></a>) as
soon as feasible. The report must include the following information:
1. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
2. Species identification (if known) or description of the
animal(s) involved;
3. Condition of the animal(s) (including carcass condition if the
animal is dead);
4. Observed behaviors of the animal(s), if alive;
5. If available, photographs or video footage of the animal(s); and
6. 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, Atlantic
Shores must report the incident to NMFS by phone (866-755-6622) and by
email (<a href="/cdn-cgi/l/email-protection#ddb3b0bbaef3babcaff3aea9afbcb3b9b4b3ba9db3b2bcbcf3bab2ab"><span class="__cf_email__" data-cfemail="e58b888396cb828497cb969197848b818c8b82a58b8a8484cb828a93">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#0d5d5f2344595d234062636479627f64636a5f687d627f797e4d63626c6c236a627b"><span class="__cf_email__" data-cfemail="c49496ea8d9094ea89abaaadb0abb6adaaa396a1b4abb6b0b784aaaba5a5eaa3abb2">[email protected]</span></a>) as soon as feasible. The report
would include the following information:
1. Time, date, and location (latitude/longitude) of the incident;
2. Species identification (if known) or description of the
animal(s) involved;
3. Vessel's speed during and leading up to the incident;
4. Vessel's course/heading and what operations were being conducted
(if applicable);
5. Status of all sound sources in use;
6. 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;
7. Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
8. Estimated size and length of animal that was struck;
9. Description of the behavior of the marine mammal immediately
preceding and/or following the strike;
10. If available, description of the presence and behavior of any
other marine mammals immediately preceding the strike;
11. 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
12. To the extent practicable, photographs or video footage of the
animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any responses (e.g., intensity, duration), the context
of any responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of the mitigation. 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 3, given that NMFS expects the anticipated effects of the
survey activities to be similar in nature. Where there are meaningful
differences between species or stocks--as is the case of the NARW--they
are included as separate subsections below. NMFS does not anticipate
that serious injury or mortality would occur as a result from HRG
surveys, even in the absence of mitigation, and no serious injury or
mortality will be authorized.
As discussed in the Potential Effects section of the proposed
Federal Register Notice, non-auditory physical effects and vessel
strike are not expected to occur. NMFS expects that all potential takes
would be in the form of short-term Level B behavioral harassment in the
form of temporary avoidance of the area or decreased foraging (if such
activity was occurring), reactions that are considered to be of low
severity and with no lasting biological consequences (e.g., Southall et
al., 2007). Even repeated Level B harassment of some small subset of an
overall stock is unlikely to result in any significant realized
decrease in viability for the affected individuals, and thus would not
result in any adverse impact to the stock as a whole. As described
above, Level A harassment is not expected to occur given the nature of
the operations, the estimated size of the Level A harassment zones, and
the required Exclusion Zone for certain activities. Because of this, no
Level A harassment has been authorized.
In addition to being temporary, the maximum expected harassment
zone around a survey vessel is 141 m. Although this distance is assumed
for all survey activity in estimating take numbers authorized and
evaluated here, in reality, the Applied Acoustics Dura-Spark 240 would
likely not be used across the entire 24-hour period and across all 360
days. As noted in Table 7, the other acoustic sources Atlantic Shores
has included in their application produce Level B harassment zones
below 60 m. Therefore, the ensonified area surrounding each vessel is
relatively small compared to the overall distribution of the animals in
the area and their use of the habitat. Feeding behavior is not likely
to be significantly impacted as prey species are mobile and are broadly
distributed throughout the survey area; therefore, marine mammals that
may be temporarily displaced during survey activities are expected to
be able to resume foraging once they have moved away from areas with
disturbing levels of underwater noise. Because of the temporary nature
of the
[[Page 24129]]
disturbance and the availability of similar habitat and resources in
the surrounding area, the impacts to marine mammals and the food
sources that they utilize are not expected to cause significant or
long-term consequences for individual marine mammals or their
populations.
There are no rookeries, mating or calving grounds known to be
biologically important to marine mammals within the survey area and
there are no feeding areas known to be biologically important to marine
mammals within the survey area. There is no designated critical habitat
for any ESA-listed marine mammals in the survey area.
North Atlantic Right Whales
The status of the NARW population is of heightened concern and,
therefore, merits additional analysis. As noted previously, elevated
NARW mortalities began in June 2017 and there is an active UME.
Overall, preliminary findings support human interactions, specifically
vessel strikes and entanglements, as the cause of death for the
majority of right whales. As
[…truncated; see source link]Indexed from Federal Register on April 22, 2022.
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.