Notice2022-09186
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Kitty Hawk Wind Marine Site Characterization Surveys, North Carolina and Virginia
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 29, 2022
Effective
August 1, 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 Kitty Hawk Wind, LLC (Kitty Hawk Wind), to incidentally harass marine mammals during marine site characterization surveys off North Carolina and Virginia in and around the area of Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf Lease Area (OCS)-A 0508.
Full Text
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<title>Federal Register, Volume 87 Issue 83 (Friday, April 29, 2022)</title>
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[Federal Register Volume 87, Number 83 (Friday, April 29, 2022)]
[Notices]
[Pages 25452-25467]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-09186]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB895]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Kitty Hawk Wind Marine Site
Characterization Surveys, North Carolina and Virginia
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 Kitty Hawk Wind, LLC (Kitty Hawk Wind),
to incidentally harass marine mammals during marine site
characterization surveys off North Carolina and Virginia in and around
the area of Commercial Lease of Submerged Lands for Renewable Energy
Development on the Outer Continental Shelf Lease Area (OCS)-A 0508.
DATES: The IHA is effective from August 1, 2022 through July 31, 2023.
FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the IHA and
supporting documents 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 July 19, 2021, NMFS received a request from Kitty Hawk Wind, a
subsidiary of Avangrid Renewables (Avangrid), for an IHA to take marine
mammals incidental to conducting marine site characterization surveys
off of the Atlantic Coast. Kitty Hawk Wind's overall lease area (OCS-A
0508) is located approximately 44 kilometers (km) offshore of Corolla,
North Carolina, in Federal waters. The proposed survey activities will
occur within the wind development area (WDA) and along the electric
cable corridor (ECC) to landfall locations in North Carolina and
Virginia. We received a final, revised version of Kitty Hawk Wind's
application on January 12, 2022 and deemed it adequate and complete on
January 13, 2022. Kitty Hawk Wind's request is for take of 17 species
of marine mammals, by Level B harassment only. Neither Kitty Hawk Wind
nor NMFS expects serious injury or mortality to result from this
activity and, therefore, an IHA is appropriate.
NMFS previously issued an IHA to Avangrid, prior to it establishing
Kitty Hawk Wind, for similar work in the same geographic area on June
3, 2019 (84 FR 31032) with effectives dates from June 1, 2019 through
May 31, 2020 and to Kitty Hawk Wind specifically on July
[[Page 25453]]
21, 2021 with effective dates from July 23, 2021 through October 31,
2021 (86 FR 43212; August 6, 2021). Avangrid/Kitty Hawk Wind complied
with all the requirements (e.g., mitigation, monitoring, and reporting)
of the previous IHAs and information regarding their monitoring results
may be found in the Estimated Take section. Avangrid and Kitty Hawk
Wind's final marine mammal monitoring reports submitted pursuant to
those IHAs can be found at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-avangrid-renewables-llc-marine-site-characterization-surveys">https://www.fisheries.noaa.gov/action/incidental-take-authorization-avangrid-renewables-llc-marine-site-characterization-surveys</a>.
Description of Proposed Activity
Kitty Hawk Wind is planning to conduct marine site characterization
surveys with the use of high-resolution geophysical (HRG) survey
equipment in the Atlantic Ocean off of North Carolina and Virginia (we
note only limited survey work will extend into waters off Virginia).
Kitty Hawk will also conduct surveys in the inshore sounds of North
Carolina, including Bogue, Pamlico, Albemarle, and Currituck Sounds (as
part of the ECC); however, those surveys will use equipment operating
at frequencies above 180 kilohertz (kHz) (outside marine mammal hearing
range) and therefore will not result in harassment to marine mammals.
For this reason, survey work in inshore sounds is not further discussed
in this notice. In addition to Kitty Hawk South surveys, there will be
a small amount of residual survey effort from the Kitty Hawk North WDA
and ECC (the area surveyed under the previous IHAs) included in this
survey effort due to inability to complete previous surveys as a result
of unsuitable weather.
Dates and Duration
Kitty Hawk Wind plans to commence the surveys in August 2022 and
continue for 1 year. Based on 24-hour operations, the HRG survey
activities (excluding those in inshore sounds) are expected to require
273 vessel days which represents the sum of the total number of days
each vessel operates (not calendar days). Three vessels using equipment
that has the potential to result in harassment to marine mammals would
operate during the survey.
A detailed description of the planned surveys by Kitty Hawk Wind
are provided in the Federal Register notice of the proposed IHA (87 FR
7139; February 8, 2022). Since that time, no changes have been made to
the project activities. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for the
description of the specified activities. Here, we provide brief
information on the effort and sound sources Kitty Hawk would use during
the surveys (Table 1 and Table 2). We note that all decibel (dB) levels
included in this notice are referenced to 1 microPascal (1 [mu]Pa). The
root mean square decibel level (dB<INF>rms</INF>) represents the square
root of the average of the pressure of the sound signal over a given
duration. The peak dB level (dB<INF>peak</INF>) represents the range in
pressure between zero and the greatest pressure of the signal.
Operating frequencies are presented in kilohertz (kHz).
Table 1--Survey Segment Details
----------------------------------------------------------------------------------------------------------------
Location and line Predominant HRG
Vessel kms * source Duration
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Vessel A.......................... WDA: 7,562 kms; Multi-channel WDA: 42 days; ECC: 4.
ECC: 590. Seismic (Sparker).
Vessel A.......................... ECC Alternative A: Single Channel 17 days.
3,107 kms. Seismic (Boomer).
Vessel A.......................... Expanded OECC: Single Channel 33 days.
5,843. Seismic (Boomer).
Vessel B.......................... WDA/ECC: 15,715 kms Single Channel 80 days.
Seismic (Boomer).
Vessel C.......................... ECC Base Case: Single Channel 96 days.
16,071 kms. Seismic (Boomer).
----------------------------------------------------------------------------------------------------------------
Total
----------------------------------------------------------------------------------------------------------------
3 vessels......................... 48,888 km.......... ................... 273 days.
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* Does not include survey transect line distance in Bogue, Pamlico, Albemarle, and Currituck Sounds.
Table 2--Kitty Hawk Wind HRG Source Characteristics
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Representative HRG Operating frequencies Source level Source level
HRG system survey equipment kilohertz (kHz) dBpeak dBrms Pulse duration (ms) Beam width (degree)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Shallow penetration subbottom EdgeTech 512i..... 0.4 to 12............ \c\ 186 \c\ 180 1.8 to 65.8.......... 51 to 80.
profiler.
Medium penetration subbottom Applied Acoustics 0.9-14............... \d\ 206 \d\ 198 0.8.................. 30.\e\
profiler \a\. SBoom 750J
(Triple Plate
Boomer).
Multi-channel Sparker (MCS) in Applied Acoustics 3.2.................. \f\ 223 \f\ 213 0.5 to 3 \f\......... 180.
flip/flop configuration \b\. Dura-Spark 1000J.
Multi-channel Sparker (MCS) in GeoMarine Geo- 0.05 to 5............ 215 206 5.5.................. 180.
flip/flop configuration. Source 800J.
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\a\ While three operational powers (500/750/1000J) were modeled for the Applied Acoustics S-Boom for comparison purposes, only the 750 joules (J)
operational power is anticipated to be used.
\b\ Although the entire MCS array would be mobilized, the sparker sources would be activated in an alternating flip/flop sequence.
\c\ The source levels are based on data from Crocker and Frantantonio (2016) for the EdgeTech 512i for 75 percent power with a bandwidth of 0.5 to 8
kHz.
\d\ The source levels are based on data from Crocker and Frantantonio (2016) for the Applied Acoustics S-Boom for source setting of 750J.
\e\ The beamwidth was provided in email correspondence with Neil MacDonald of Modulus Technology Ltd.
\f\ The source levels are based on data from Crocker and Frantantonio (2016).
[[Page 25454]]
Mitigation, monitoring, and reporting measures contained within the
IHA are described in detail later in this document (please see
Mitigation and Monitoring and Reporting).
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Kitty Hawk Wind was
published in the Federal Register on February 8, 2022 (87 FR 7139).
That proposed notice described, in detail, Kitty Hawk Wind's
activities, the marine mammal species that may be affected by the
activities, and the anticipated effects on marine mammals. This
proposed notice was available for a 30-day public comment period.
During this period, NMFS received a comment letter from Oceana. A
summary of Oceana's comments and NMFS' responses are as follows:
Comment 1: Oceana opposes NMFS' renewal process and suggested NMFS
should end its approach to renewing IHAs with a 15-day comment period,
instead providing a full 30-day comment period for a renewal notice to
ensure adequate public engagement.
Response: Several statements provided by Oceana suggest it believes
erroneously that NMFS is proposing to issue a renewal IHA to Kitty Hawk
Wind and allowed a 15-day public comment period. The public comment
period for issuance of the proposed IHA to Kitty Hawk Wind was February
8, 2022 through March 10, 2022 which constituted 30 days and the action
is issuance of a new IHA to Kitty Hawk, not a renewal IHA. While NMFS
also solicited public comments on the potential for issuance of a
renewal IHA, should Kitty Hawk Wind request one, that action would come
later in time. Should Kitty Hawk request, and NMFS propose, to issue a
renewal IHA, NMFS will provide an additional 15-day public comment
period on that action for a total of a 45-day public comment period.
Because any renewal (as explained in the Request for Public Comments
section of the proposed IHA) is limited to another year of identical or
nearly identical activities in the same location (as described in the
Description of the Proposed Activity section of the proposed IHA) or
the same activities that were not completed within the 1-year period of
the initial IHA, reviewers have the information needed to effectively
comment on both the immediate proposed IHA and a possible 1-year
renewal, should the IHA holder choose to request one.
While there are additional documents submitted with a renewal
request, for a qualifying renewal these are limited to documentation
that NMFS will make available and use to verify that the activities are
identical to those in the initial IHA, are nearly identical such that
the changes would have either no effect on impacts to marine mammals or
decrease those impacts, or are a subset of activities already analyzed
and authorized but not completed under the initial IHA. NMFS will also
confirm, among other things, that the activities will occur in the same
location; involve the same species and stocks; provide for continuation
of the same mitigation, monitoring, and reporting requirements; and
that no new information has been received that would alter the prior
analysis. The renewal request must also contain a preliminary
monitoring report, but that is to verify that effects from the
activities do not indicate impacts of a scale or nature not previously
analyzed. The additional 15-day public comment period provides the
public an opportunity to review these few documents, provide any
additional pertinent information, and comment on whether they think the
criteria for a renewal have been met. NMFS also will provide direct
notice of the proposed renewal to those who commented on the initial
IHA, to provide an opportunity to submit any additional comments.
Between the initial 30-day comment period on these same activities and
the additional 15 days, the total comment period for a renewal is 45
days.
In addition to the IHA renewal process being consistent with all
requirements under section 101(a)(5)(D), it is also consistent with
Congress's intent for issuance of IHAs to the extent reflected in
statements in the legislative history of the MMPA. Through the
provision for renewals in the regulations, description of the process
and express invitation to comment on specific potential renewals in the
Request for Public Comments section of each proposed IHA, the
description of the process on NMFS' website, further elaboration on the
process through responses to comments such as this, posting of
substantive documents on the agency's website, and provision of 30 or
45 days for public review and comment on all proposed initial IHAs and
renewals, respectively, NMFS has ensured that the public ``is invited
and encouraged to participate fully in the agency decision-making
process.''
In prior responses to comments about IHA renewals (e.g., 84 FR
52464, October 02, 2019; 85 FR 53342, August 28, 2020; 86 FR 33664,
June 25, 2021; 87 FR 806, January 6, 2022), NMFS has explained how the
renewal process, as implemented, is consistent with the statutory
requirements contained in section 101(a)(5)(D) of the MMPA, provides
additional efficiencies beyond the use of abbreviated notices, and,
further, promotes NMFS' goals of improving conservation of marine
mammals and increasing efficiency in the MMPA compliance process.
Therefore, we intend to continue implementing the renewal process. For
more information, NMFS has published a description of the renewal
process on our website (available at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>).
Comment 2: Oceana notes that the IHA must rely upon the most recent
and best available science for the North Atlantic right whale (NARW),
including updated population estimates, recent habitat use patterns for
the study area, and a revised discussion of acute and cumulative stress
of whales in the region, and asserts that NMFS does not do so.
Specifically, for population estimates, Oceana suggests the NARW
Consortium's Annual Report Card (Report Card) is the best available
science.
Response: NMFS has used the best available science regarding
population abundance and trends, habitat use of the survey area, and a
sufficiently comprehensive review of existing stressors on NARWs,
including data related to the ongoing unusual mortality event in
issuing the IHA. NMFS also considers the best science available when
considering renewals as well.
The Federal Register notice of proposed IHA (87 FR 7139, February
8, 2022) identifies that the NARW population is endangered, discusses
habitat use of the survey area, identifies current stressors on the
population (e.g., entanglement in fishing gear and vessel strikes), and
identifies potential impacts of the proposed survey, including effects
of stress, on NARWs. The notice of proposed IHA cites the NMFS draft
2021 stock assessment report (SAR) as the best available science with
respect to NARW population estimates (n = 356-368). The SARs are peer-
reviewed by the Atlantic Scientific Review Group whereas the Report
Card, available at <a href="https://www.narwc.org/report-cards.html">https://www.narwc.org/report-cards.html</a>, is
published independently by Consortium members without peer review.
Although the 2021 NARW Report Card is available and indicates the NARW
population is slightly lower than indicated in the draft 2021 SAR, 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 (https://
www.fisheries.noaa.gov/species/north-atlantic-right-
[[Page 25455]]
whale). 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
Kitty Hawk Wind's survey activities.
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 in a NARW migratory habitat would create conditions
of acute or chronic acoustic exposure leading to stress responses that
would result in meaningful impacts to marine mammals. NMFS has also
prescribed a robust suite of mitigation measures, such as time-area
limitations and extended distance shutdowns for certain species that
are expected to further reduce the duration and intensity of acoustic
exposure, while limiting the potential severity of any possible
behavioral disruption. The potential for chronic stress was evaluated
in making the determinations presented in NMFS's negligible impact
analyses.
Comment 3: Oceana asserted that NMFS should fully consider the
discrete effects of each activity and the cumulative effects of the
suite of approved, proposed, and potential activities on marine
mammals, including NARWs, and ensure that the cumulative effects are
not excessive before issuing or renewing an IHA.
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. Section 101(a)(5)(D) of the MMPA requires NMFS to modify,
suspend, or revoke the IHA if it finds that the activity is having more
than a negligible impact on the affected species or stocks of marine
mammals. NMFS will closely monitor baseline conditions before and
during the period when the IHA is effective and will exercise this
authority if appropriate. 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, both this IHA, as well as
other IHAs currently in effect or proposed within the specified
geographic region, are appropriately considered unrelated activities
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, Kitty Hawk Wind was the applicant for the IHA, and we
are responding to the specified activity as described in that
application (and making the necessary findings on that basis). Through
the response to public comments in the 1989 implementing regulations,
we also indicated (1) that NMFS would consider cumulative effects that
are reasonably foreseeable when preparing a NEPA analysis, and (2) that
reasonably foreseeable cumulative effects would also be considered
under section 7 of the ESA for ESA-listed species, as appropriate.
Cumulative impacts regarding issuance of IHAs for site characterization
survey activities such as those planned by Kitty Hawk Wind have been
adequately addressed under NEPA in prior environmental analyses that
support the basis for 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 Kitty Hawk Wind's IHA, which included consideration of extraordinary
circumstances.
Comment 4: Oceana indicated the IHA must include conditions for the
survey activities that will first avoid impacts on NARWs and then
minimize and mitigate effects. Oceana suggested that NMFS should permit
Kitty Hawk Wind to utilize lower impact techniques or technology if
those provide information about the site without adverse effects.
Response: Kitty Hawk Wind has indicated the equipment needed to
conduct the survey is that contained within the IHA application and
NMFS has prescribed measures to reduce impacts to the maximum extent
practicable. NMFS has included measures in the IHA measures that will
minimize impacts on NARWs, including a 500-m clearance and shutdown
zone. The takes of NARWs authorized are included as a precaution in
recognition of potential circumstances where whales are not detected in
time to shut down; however, upon detection, equipment would be shut
down, limiting exposure time and potentially avoiding harassment. NMFS
finds the measures prescribed through the IHA result in the least
practicable adverse impacts on marine mammals.
Comment 5: Oceana suggested that during low light conditions, the
IHA should require complimenting protected species observer (PSO)
efforts with additional monitoring technologies such as infrared (IR)
techology, a 500-m separation distance between vessels and NARWs, and
requiring sources to ramp up.
Response: NMFS agrees with Oceana. The proposed IHA made available
for public comment and the issued IHA include a requirement that during
reduced visibility conditions, including nighttime operations, PSOs
must utilize enhanced detection technology, that all vessels maintain a
500-m separation distance from NARWs at all times, and where
technically feasible (e.g., equipment is not on a binary on/off
switch), a ramp-up procedure will be used for HRG survey equipment
capable of adjusting energy levels at the start or restart of HRG
survey activities. Kitty Hawk Wind has confirmed both the boomers and
sparkers used during the survey have the capability to be ramped-up,
thus, they will do so.
[[Page 25456]]
Comment 6: Oceana recommended that the IHA should limit all vessels
of all sizes associated with the proposed survey activity to speeds
less than 10 knots (kn; 18.5 kilometers (km)/hour) at all times with no
exceptions.
Response: NMFS acknowledges that vessel strikes can result in
injury, serious injury, or mortality and reducing the risk of vessel
strikes to NARWs is a key priority. We have analyzed the potential for
ship strike resulting from Kitty Hawk Wind's activity and have
determined that based on the nature of the activity (e.g., survey
vessel speeds during operations are approximately 4 kn (4.6 miles per
hour)) 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. Specific to NARWs, these mitigation measures, all
of which were included in the proposed IHA and are contained 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 Seasonal
Management Area (SMA; November 1 through April 30) or Dynamic
Management Area (DMA) and check daily for information regarding the
establishment of mandatory or voluntary vessel strike avoidance areas
and information regarding NARW sighting locations; 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 within 100 meters (m) of an underway
vessel; 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; 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; and, 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. We have determined that the ship strike avoidance
measures in the IHA are sufficient to ensure the least practicable
adverse impact on NARWs. Furthermore, no documented vessel strikes of
any marine mammal species, including NARWs, have occurred during any
marine site characterization surveys, including transiting, for which
NMFS has issued an IHA.
Comment 7: Oceana recommended that, to support oversight and
enforcement, the IHA should require all vessels to be equipped with and
using a Class A Automatic Identification System (AIS) device at all
times while on the water.
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 (83 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 Kitty Hawk Wind, with the potential for
both Level A and Level B harassment take. Given the small isopleths and
small numbers of take authorized by this IHA, NMFS does not agree that
the benefits of requiring AIS on all vessels associated with the survey
activities outweighs and warrants the cost and practicability issues
associated with this requirement.
The large majority of HRG vessels used by Kitty Hawk Wind have AIS
onboard. There are some instances in which small vessels (approximately
10 m (33 feet (ft) or smaller) are used in shallow water and these may
or may not have an AIS installed. These small vessels would primarily
work in the inshore sounds and very shallow coastal waters where the
larger vessels cannot access. NMFS does not agree it is necessary to
install AIS on these small vessels.
Comment 8: Oceana recommended the IHA must require all vessels
associated with the project, at all phases of development, follow the
vessel plan and rules regardless of ownership, operator, contract and
that developers are explicitly liable for behavior of all employees,
contractors, subcontractors, consultants, and associated vessels and
machinery.
Response: The conditions in the IHA are relevant to all vessels and
personnel participating in Kitty Hawk Wind's survey activities for the
time period that the IHA is effective.
Comment 8: Oceana asserts that the IHA should include a requirement
for all phases of the 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. They also recommend all reports and data be accessible on a
publicly available website.
Response: NMFS agrees with the need for reporting and indeed, the
MMPA calls for IHAs to incorporate reporting requirements. The proposed
IHA and issued IHA include requirements for reporting that support
Oceana's recommendations. Kitty Hawk Wind is required to submit a
monitoring report to NMFS within 90 days after completion of survey
activities that fully documents the methods and monitoring protocols,
summarizes the data recorded during both visual and passive acoustic
monitoring, estimates the number of marine mammals that may have been
taken during survey activities, and describes, assesses and compares
the effectiveness of monitoring and mitigation measures. PSO datasheets
or raw sightings data must also be provided with the draft and final
monitoring report. We note acoustic detections will not be reported as
no passive acoustic monitoring is required in the IHA (see response to
Comment 10).
Further, the IHA stipulates that if a NARW is observed at any time
by any project vessels, during surveys or during vessel transit, Kitty
Hawk Wind must immediately report sighting information to the NMFS NARW
Sighting Advisory System and to the U.S. Coast Guard, and that any
discoveries of injured or dead marine mammals be reported by Kitty Hawk
Wind to the Office of Protected Resources, NMFS, and to the Southeast
Regional Stranding Coordinator as soon as feasible. All reports and
associated data submitted to NMFS are included available for public
inspection at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
Comment 9: Oceana recommended the IHA include requirements to use
effective reactive restrictions that are triggered by detection of
protected species by visual, acoustic, or other means before or during
site characterization activities. Specifically, they suggested
requiring a 1,000 m clearance zone and shutdown zone for NARWs with
immediate notification to NMFS if this measure is triggered. Oceana did
not provide reasoning for this zone size.
NMFS Response: NMFS disagrees with this recommendation. The 500-m
clearance and shutdown zones for NARWs exceeds the modeled distance to
the largest 160-dB Level B harassment isopleth distance at highest
power (445 m). Given that calculated Level B harassment isopleths are
likely conservative, and NMFS considers impacts from HRG survey
activities to be near de minimis, the 500-m clearance
[[Page 25457]]
and shutdown zones is sufficiently protective to effect the least
practicable adverse impact on NARWs. The issued IHA maintains the 500-m
clearance and shutdown zone requirement, as contained within the
proposed IHA. In addition, the IHA requires Kitty Hawk Wind to ramp-up
sources prior to operating at full power when sources allow for such an
action (sources with binary on/off switches cannot be ramped-up).
Comment 10: Oceana recommended Kitty Hawk Wind use passive acoustic
monitoring (PAM) to aid in NARW detection and trigger mitigation
measures such as shutdowns.
NMFS Response: There are several reasons why we do not agree that
use of PAM is warranted for Kitty Hawk Wind's 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 the proposed HRG survey activities is limited. Oceana's
recommendation involves extremely costly and time consuming (i.e.,
impracticable) monitoring and mitigation measures that are not
warranted based on the best available science indicating extremely low
densities of NARWs during the effective period of the IHA and the
extremely small harassment zones which would likely not meaningfully
enhance detection, and the practical limitations of identifying precise
locations of whales to trigger mitigation at such close distances to
the vessel. We explain below, in detail, why PAM is not warranted for
this survey.
It is generally well-accepted that using towed passive acoustic
sensors 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
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 Kitty Hawk Wind's survey activities. While NMFS
agrees that PAM can be an important tool for augmenting detection
capabilities in certain circumstances, its utility in further reducing
impact during HRG survey activities is limited. First, for this
activity, the area expected to be ensonified above the Level B
harassment threshold is relatively small (a maximum of 445 m)--this
reflects the fact that, to start with, the source level is
comparatively low and the intensity of any resulting impacts would be
lower level and, further, it means that inasmuch as PAM will only
detect a portion of any animals exposed within a zone, the overall
probability of PAM detecting an animal in the harassment zone, alone
and without a corresponding visual detection, 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 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.
Changes From the Proposed IHA to Final IHA
In their application, Kitty Hawk Wind indicated they would start
the proposed surveys in April 2022 with the goal of completing them
prior to November 1, 2022. In the notice of proposed IHA, NMFS noted
this survey schedule would reduce impacts to NARWs given their
migratory patterns although we did not propose a mitigation measure
that the surveys must be completed by November and the take estimates
we calculated assuming year-round surveys. Since that time, Kitty Hawk
has informed NMFS that due to unforeseen changes in the schedule, the
surveys are now scheduled to start in August 2022 and surveys are
likely to run through the winter. The schedule change does not impact
take estimates for NARWs (n=2) or for any other marine mammal nor does
this change our findings given the impacts from these types of surveys
are already minimal and the authorized take of NARWs in only 2.
Since publication of the notice of proposed IHA, NMFS has
acknowledged that the population estimate of NARWs in 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 Kitty Hawk
Wind's survey activities. The status and trends of the NARW population
remain unchanged.
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. NMFS
fully considered all of this information, and we refer the reader to
these descriptions, incorporated here by reference, instead of
reprinting the information. 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.,
[[Page 25458]]
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 that may occur within the
survey area 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 serious injury or
mortality is anticipated or issued, PBR and annual serious injury and
mortality from anthropogenic sources are included here as gross
indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates. For some species, this geographic
area may extend beyond U.S. waters. All managed stocks in this region
are assessed in NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g.,
Hayes et al., 2019, 2020). All values presented in Table 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/draft-marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports</a>).
Table 3--Species Likely Impacted by the Specified 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)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale...... Eubalaena glacialis.... Western North Atlantic. E/D; Y 368 (-; 356; 2020) \4\ 0.8 18.6
Family Balaenopteridae (rorquals):
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -/-; Y 1,393 (0; 1,375; 2016) 22 58
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E/D; Y 6,802 (0.24; 5,573; 11 2.35
2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E/D; Y 6,292 (1.02; 3,098; 6.2 1.2
2016).
Minke whale..................... Balaenoptera Canadian East Coast.... -/-; N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Ziphiidae:
Cuvier's beaked Whale........... Ziphius cavirostris.... Western North Atlantic. -/-; N 5,744 (0.36, 4,282, 43 0.2
2016).
Blainville's beaked Whale....... Mesoplodon densirostris Western North Atlantic. -/-; N 10,107 (0.27, 8,085, 81 0
2016).
True's beaked whale............. Mesoplodon mirus....... Western North Atlantic. -/-; N 81.................... 0
Gervais' beaked whale........... Mesoplodon europaeus... Western North Atlantic. -/-; N 81.................... 0
Sowerby's beaked whale.......... Mesoplodon bidens...... Western North Atlantic. -/-; N 81.................... 0
Family Delphinidae:
Long-finned pilot whale......... Globicephala melas..... Western North Atlantic. -/-; N 39,215 (0.30; 30,627; 306 21
See SAR).
Short finned pilot whale........ Globicephala Western North Atlantic. -/-;Y 28,924 (0.24; 23,637; 236 160
macrorhynchus. 2016).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic -/-; N 62,851 (0.23; 51,914, 519 28
Offshore. 2016).
W.N.A. Southern -/-;Y 6,639 (0.41, 4,759, 48 12.2-21.5
Migratory Coastal. 2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -/-; N 172,947 (0.21; 1,452 399
145,216; 2016).
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -/-; N 39,921 (0.27; 32,032; 320 0
2012).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -/-; N 35,493 (0.19; 30,289; 303 54.3
2016).
Rough-toothed dolphin........... Steno bredanensis...... Western North Atlantic. -/-; N 136 (1; 67; 2016)..... 0 0.7
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -/-; N 95,543 (0.31; 74,034; 851 217
Fundy. 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="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports-region</a>. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused M/SI plus serious injury from all sources combined (e.g., commercial
fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated
with estimated mortality due to commercial fisheries is presented in some cases.
\4\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species webpage 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>).
As indicated above, all 17 species (with 18 managed stocks) in
Table 3 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur. In addition to what is
included in Sections 3 and 4 of the application, the SARs, and NMFS'
website, further detail informing the baseline for select species
(i.e., information regarding current Unusual Mortality Events (UME) and
important habitat areas) was provided in the notice of proposed IHA (87
FR 7139; February 8, 2022) and is not repeated here. No new information
is available since publication of that notice.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to
[[Page 25459]]
anthropogenic sound can have deleterious effects. To appropriately
assess the potential effects of exposure to sound, it is necessary to
understand the frequency ranges marine mammals are able to hear.
Current data indicate that not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al.
(2007) recommended that marine mammals be divided into functional
hearing groups based on directly measured or estimated hearing ranges
on the basis of available behavioral response data, audiograms derived
using auditory evoked potential techniques, anatomical modeling, and
other data. Note that no direct measurements of hearing ability have
been successfully completed for mysticetes (i.e., low-frequency
cetaceans). Subsequently, NMFS (2018) described generalized hearing
ranges for these marine mammal hearing groups. Generalized hearing
ranges were chosen based on the approximately 65 dB threshold from the
normalized composite audiograms, with the exception for lower limits
for low-frequency cetaceans where the lower bound was deemed to be
biologically implausible and the lower bound from Southall et al.
(2007) retained. Marine mammal hearing groups and their associated
hearing ranges are provided in Table 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 and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
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 7139; February 8, 2022) included a discussion of
the effects of anthropogenic noise on marine mammals and their habitat,
therefore that information is not repeated here; please refer to the
Federal Register notice (87 FR 7139; February 8, 2022) for that
information.
Estimated Take
This section provides the process by which the estimated takes were
devised and the number of incidental takes NMFS authorized in the IHA,
which informs both NMFS' consideration of ``small numbers'' and the
negligible impact determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes are by Level B harassment only, in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to noise from certain HRG acoustic sources.
Based primarily on the characteristics of the signals produced by the
acoustic sources planned for use, Level A harassment is neither
anticipated (even absent mitigation), nor authorized. Consideration of
the anticipated effectiveness of the mitigation measures (i.e.,
exclusion zones and shutdown measures), discussed in detail below in
the Mitigation section, further strengthens the conclusion that Level A
harassment is not a reasonably anticipated outcome of the survey
activity. As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and, (4)
and the number of days of activities. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of takes, additional information that can qualitatively
inform take estimates is also sometimes available (e.g., previous
monitoring results or average group size). Below, we describe the
factors considered here in more detail and present the take estimates.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment for non-explosive sources--Though significantly
driven by received level, the onset of behavioral disturbance from
anthropogenic noise exposure is also informed to varying degrees by
other factors related to the
[[Page 25460]]
source (e.g., frequency, predictability, duty cycle), the environment
(e.g., bathymetry), and the receiving animals (hearing, motivation,
experience, demography, behavioral context) and can be difficult to
predict (Southall et al., 2007, Ellison et al., 2012). Based on what
the available science indicates and the practical need to use a
threshold based on a factor that is both predictable and measurable for
most activities, NMFS uses a generalized acoustic threshold based on
received level to estimate the onset of behavioral harassment. NMFS
predicts that marine mammals are likely to be behaviorally harassed in
a manner we consider Level B harassment when exposed to underwater
anthropogenic noise above received levels of 160 dB re 1 [mu]Pa (rms)
for the impulsive sources (i.e., sparkers and boomers) evaluated here
for Kitty Hawk Wind's proposed activity.
Level A Harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive). For more
information, see NMFS' 2018 Technical Guidance, which may be accessed
at <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Kitty Hawk Wind's proposed activity includes the use of impulsive
sources. However, as discussed above, NMFS has concluded that Level A
harassment is not a reasonably likely outcome for marine mammals
exposed to noise through use of the sources proposed for use here, and
the potential for Level A harassment is not evaluated further in this
document. Please see Kitty Hawk Wind's application for details of a
quantitative exposure analysis exercise, i.e., calculated Level A
harassment isopleths and estimated Level A harassment exposures. Kitty
Hawk Wind did not request authorization of take by Level A harassment,
and no take by Level A harassment is authorized.
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.
Sources that have the potential to result in marine mammal
harassment include sparkers and boomers. These are impulsive sources.
The basis for the HRG survey take estimate is the number of marine
mammals that would be exposed to sound levels in excess of Level B
harassment criteria for impulsive and/or intermittent noise (160
dBrms). Distances to thresholds were calculated assuming a propagation
loss rate of 15logR, also known as practical spreading. The resulting
distances to NMFS Level B harassment isopleth (160 dBrms) are presented
in Table 5.
Kitty Hawk then considered track line coverage and isopleth
distance to estimate the maximum ensonified area over a 24-hr period,
also referred to as the zone of influence (ZOI). The estimated distance
of the daily vessel track line was determined using the estimated
average speed of the vessel (4 kn (7.4 km/hr)) and the 24-hour
operational period. Within each survey segment, the ZOI was calculated
using the respective maximum distance to the Level B harassment
threshold and estimated daily vessel track of 177.792 km. During the
use of the Applied Acoustics Dura-Spark 1000J MCS, estimates of take
have been based on a maximum Level B harassment distance of 445 m from
the sound source resulting in an ensonified area (i.e., ZOI) around the
survey equipment of 158.857 km\2\ per day over a projected survey
period of 45 days (Table 5). During the use of Applied Acoustics S-Boom
(boomer), estimates of take have been based on a maximum Level B
harassment distance of 13.49 m from the sound source resulting in an
ensonified area (i.e., ZOI) around the survey equipment of 4.765 km\2\
per day over a projected survey period of 273 days (Table 5).
The ZOI is a representation of the maximum extent of the ensonified
area around a sound source over a 24-hr period. The ZOI was calculated
per the following formula:
ZOI = (Distance/day x 2r) + [pi]r\2\
Table 5--Level B Harassment Threshold Distances and Ensonified Area
----------------------------------------------------------------------------------------------------------------
Number of Estimated Estimated
Dominant survey equipment active survey total line distance per Distance to ZOI per day
days distance (km) day (km) threshold (km\2\)
----------------------------------------------------------------------------------------------------------------
MCS............................. 47 8,152 177.792 445 158.857
Boomer.......................... 226 42,059 13.4 4.765
----------------------------------------------------------------------------------------------------------------
Marine Mammal Occurrence
In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020)
represent the best available information regarding marine mammal
densities in the survey area. The density data presented by Roberts et
al. (2016, 2017, 2018, 2020) incorporates aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporates
data from 8 physiographic and 16 dynamic oceanographic and biological
covariates, and controls for the influence of sea state, group size,
availability bias, and perception bias on the probability of making a
sighting. These density models were originally developed for all
cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In
subsequent years, certain models have been updated based on additional
data as well as certain methodological improvements. More information
is available online at <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., 2016, 2017, 2018, 2020). The updated models incorporate additional
sighting data, including sightings from NOAA's Atlantic Marine
Assessment Program for Protected Species (AMAPPS) surveys.
Monthly density grids (e.g., rasters) for each species were
overlain with the Survey Area and values from all grid cells that
overlapped the Survey Area were averaged to determine monthly mean
density values for each species. Monthly mean density values within the
Survey Area were averaged by season (Winter (December, January,
February), Spring (March, April, May), Summer
[[Page 25461]]
(June, July, August), Fall (September, October, November)) to provide
seasonal density estimates. Within each survey segment (WDA and
offshore export cable corridor), the highest seasonal density estimates
during the duration of the survey were used to estimate take.
Take Calculation and Estimation
Here we describe how the information provided above is brought
together to produce a quantitative take estimate.
For most species, the amount of take authorized is equal to the
calculated take amount resulting from the following equation: D x ZOI x
d where d equals the number of days each source is dominant (i.e., 47
days for the sparker and 226 days for the boomer). We note the
densities provided in Table 5 represent the number of animals/100 km;
therefore, the density is normalized to 1 km in the equation. However,
for some species, this equation does not reflect those species that can
travel in large groups--an important parameter to consider that is not
captured by density values. The equation also does not capture the
propensity of some delphinid species to be attracted to the vessel and
bowride. Therefore, to account for these real-world situations, the
authorized take is a product of group size. For large groups of spotted
and common dolphins knowing their affinity for bow riding (and
therefore coming very close to the vessel), Kitty Hawk Wind assumed one
group could be taken each day of sparker and/or boomer operations
(273). Based on marine mammal sighting data collected during previous
survey efforts, as described in Avangrid's previous monitoring report,
Kitty Hawk Wind assumes an average group size for spotted dolphins is
16 in the survey area. For common dolphins, the overall average
reported group size was 4 in all survey areas but the average group
size during prior geotechnical surveys was 17 individuals. For Risso's
dolphin and pilot whales, average group size for these species are 25
and 20, respectively (Reeves et al. 2002).
For bottlenose dolphin densities, Roberts et al. (2016a, 2016b,
2017, 2018, 2020) does not differentiate by individual stock. The WDA
is located within depths exceeding 20 m. Therefore, given the southern
coastal migratory stock propensity to be found shallower than the 20 m
depth isobath north of Cape Hatteras (Reeves et al., 2002; Waring et
al., 2016), take of the southern coastal migratory stock would be
unlikely. Therefore, all work in the WDA was allocated to the offshore
stock.
Table 6 provides the total amount of take authorized in the IHA.
For details of take per survey segment, please see Table 8 in Kitty
Hawk's application.
Table 6--Marine Mammal Density and Take Estimates
----------------------------------------------------------------------------------------------------------------
Calculated Authorized Percent of
Species Stock take take population
----------------------------------------------------------------------------------------------------------------
N Atlantic right whale................ Western North Atlantic.. 2 2 <1
Humpback whale........................ Gulf of Maine........... 15 15 <1
Fin whale............................. Western North Atlantic.. 18 18 <1
Sei whale............................. Western North Atlantic.. 1 1 ..............
Minke whale........................... Canadian East Coast..... 22 22 <1
Pilot whales.......................... Western North Atlantic.. 32 32 <1
Cuvier's Beaked Whale................. Western North Atlantic.. 5 5 <1
Mesoplodon spp \1\.................... Western North Atlantic.. 3 3 <1
Bottlenose dolphin.................... Western North Atlantic, 823 823 <1
offshore,.
Western North Atlantic 226 226 6.0
southern migratory
coastal.
Common dolphin \a\.................... Western North Atlantic.. 365 9,282 5.3
Atlantic spotted dolphin \a\.......... Western North Atlantic.. 418 8736 <1
Risso's dolphin \a\................... Western North Atlantic.. 8 25 <1
Rough-toothed dolphin \a\............. Western North Atlantic.. 1 20 14.7
Harbor porpoise....................... Gulf of Maine/Bay of 39 39 <1
Fundy.
----------------------------------------------------------------------------------------------------------------
\1\ Mesoplodon spp represent Blainsville beaked whales (Mesoplodon densirostris), True's beaked whales
(Mesoplodon europaeus), and/or Sowerby's beaked whales (Mesoplodon bidens).
\2\ Multiplier applied to increase calculated take to account for two large group size, an average pod size of
16 individuals encountered in Survey Area (Milne 2019, 2021) has been included for spotted dolphin and 17
individuals have also been included for common dolphin (Milne 2019, 2021). Pod size adjustments of 25 and 20
individuals (average pod size from Reeves et al. [2002]) have been included for Risso's and rough-toothed
dolphins, respectively.
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 and impact on
operations.
[[Page 25462]]
Mitigation for Marine Mammals and Their Habitat
NMFS requires that the following mitigation measures be implemented
during Kitty Hawk Wind's planned marine site characterization surveys.
Pre-Clearance of the Shutdown Zones
Kitty Hawk Wind must implement a 30-minute monitoring period of the
clearance zones prior to the initiation of ramp-up of HRG equipment.
During this period, the clearance 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 zone. If a marine
mammal is observed within the clearance zone during the pre-clearance
period, ramp-up may not begin until the animal(s) has been observed
exiting its respective clearance zone or until an additional time
period has elapsed with no further sighting (i.e., 15 minutes for small
odontocetes and seals, and 30 minutes for all other species).
Ramp-Up
Where technically feasible (e.g., equipment is not on a binary on/
off switch), a ramp-up procedure will be used for HRG survey equipment
capable of adjusting energy levels at the start or restart of HRG
survey activities. A ramp-up will begin with the power of the smallest
acoustic equipment at its lowest practical power output appropriate for
the survey. When technically feasible the power willthen be turned up
and other acoustic sources added in a way such that the source level
would increase gradually. Ramp-up activities not begin if a marine
mammal(s) enters a clearance zone(s) prior to initiating ramp-up. Ramp-
up will commence when the animal has been observed exiting the
exclusion zone or until an additional time period has elapsed with no
further sighting (i.e., 15 minutes for small dolphins and seals and 30
minutes for all other marine mammal species). The ramp-up procedure
will be used at the beginning of HRG survey activities 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 use.
Marine Mammal Shutdown Zones
An immediate shutdown of a sparker or boomer is required if a
marine mammal is sighted entering or within its respective exclusion
zone. The vessel operator must comply immediately with any call for
shutdown by the Lead PSO. Any disagreement between the Lead PSO and
vessel operator should be discussed only after shutdown has occurred.
Subsequent restart of the survey equipment can be initiated if the
animal has been observed exiting its respective exclusion zone or 30
minutes has passed without subsequent detection of a large whale or 15
minutes for a smaller cetacean or seal. Table 6 provides the required
shutdown zones.
Table 6--Clearance and Shutdown Zones During Sparker and Boomer Use
------------------------------------------------------------------------
Clearance zone Shutdown zone
Species (m) (m)
------------------------------------------------------------------------
North Atlantic right whale.......... 500 500
All other ESA-listed marine mammals. 500 450
Non-ESA marine mammals \1\.......... 100 100
------------------------------------------------------------------------
\1\ Shutdown is not required for a delphinid from specified genera
Delphinus, Stenella (frontalis only), and Tursiops.
Shutdown Procedures
The vessel operator must comply immediately with any call for
shutdown by the Lead PSO. Any disagreement between the Lead PSO and
vessel operator should be discussed only after shutdown has occurred.
Subsequent restart of the survey equipment can be initiated if the
animal has been observed exiting its respective shutdown zone or the
relevant time period has lapsed without re-detection (15 minutes for
small odontocetes and seals, and 30 minutes for all other species).
The shutdown requirement is waived for small delphinids of the
following genera: Delphinus, Stenella (frontalis only), and Tursiops.
Furthermore, if there is uncertainty regarding identification of a
marine mammal species (i.e., whether the observed marine mammal(s)
belongs to one of the delphinid genera for which shutdown is waived),
PSOs must use best professional judgement in making the decision to
call for a shutdown. Additionally, shutdown is required if a delphinid
detected in the exclusion zone and belongs to a genus other than those
specified.
If the acoustic source is shut down for reasons other than
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it
may be activated again only if the PSOs have maintained constant
observation and the shutdown zone is clear of marine mammals. If the
source is turned off for more than 30 minutes, it may only be restarted
after PSOs have cleared the shutdown zones for 30 minutes.
If a species for which authorization has not been granted, or, a
species for which authorization has been granted but the authorized
number of takes have been met, approaches or is observed within the
Level B harassment zone (445 m), shutdown is required.
Vessel Strike Avoidance
Kitty Hawk Wind will ensure that vessel operators and crew maintain
a vigilant watch for marine mammals and slow down or stop their vessels
to avoid striking these species. All personnel responsible for
navigation and marine mammal observation duties will receive site-
specific training on marine mammals sighting/reporting and vessel
strike avoidance measures. Vessel strike avoidance measures would
include the following, except under circumstances when complying with
these requirements would put the safety of the vessel or crew at risk:
<bullet> Vessel operators and crews must maintain a vigilant watch
for all protected species and slow down, stop their vessel, or alter
course, as appropriate and regardless of vessel size, to avoid striking
any protected species. A visual observer aboard the vessel must monitor
a vessel strike avoidance zone based on the appropriate separation
distance around the vessel (distances stated below). Visual observers
monitoring the vessel strike avoidance zone may be third-party
observers (i.e., PSOs) or crew members, but crew members responsible
for these duties must be provided sufficient training to (1)
distinguish protected species from other phenomena and (2) broadly to
identify a marine mammal as a right whale, other whale (defined in this
context as sperm whales or baleen whales other than right whales), or
other marine mammal;
[[Page 25463]]
<bullet> All vessel operators will monitor the NARW Reporting
Systems (e.g., the Early Warning System, Sighting Advisory System, and
Mandatory Ship Reporting System) daily throughout the entire survey
period for the presence of NARWs during activities conducted in support
of plan submittal;
<bullet> All vessel operators will comply with the 10 knot (18.5
km/hr) or less speed restrictions when operating in any SMA from
November 1 through April 30;
<bullet> All vessels, regardless of size, must observe a 10-knot
speed restriction in a NARW DMA;
<bullet> All survey vessels will maintain a separation distance of
500 m or greater from any sighted NARW or other ESA-listed whale;
<bullet> If underway, vessels must steer a course away from any
sighted NARW at 10 kn (18.5 km/hr) or less until the 500 m minimum
separation distance has been established. If a NARW is sighted in a
vessel's path, or within 100 m to an underway vessel, the underway
vessel must reduce speed and shift the engine to neutral. Engines will
not be engaged until the NARW has moved outside of the vessel's path
and beyond 100 m. If stationary, the vessel must not engage engines
until the NARW has moved beyond 100 m;
<bullet> All vessels will maintain a separation distance of 100 m
or greater from any sighted non-delphinid cetacean. If sighted, the
vessel underway must reduce speed and shift the engine to neutral, and
must not engage the engines until the non-delphinid cetacean has moved
outside of the vessel's path and beyond 100 m. If a survey vessel is
stationary, the vessel will not engage engines until the non-delphinid
cetacean has moved out of the vessel's path and beyond 100 m;
<bullet> All vessel operators will comply with 10 knot (18.5 km/hr)
or less speed restrictions when mother/calf pairs, pods, or large
assemblages of non-delphinid cetaceans are observed near an underway
vessel;
<bullet> All vessels will maintain a separation distance of 50 m or
greater from any sighted delphinid cetacean and pinniped. Any vessel
underway will remain parallel to a sighted delphinid cetacean or
pinniped's course whenever possible and avoid excessive speed or abrupt
changes in direction. Any vessel underway reduces vessel speed to 10 kn
(18.5 km/hr) or less when pods (including mother/calf pairs) or large
assemblages of delphinid cetaceans are observed. Vessels may not adjust
course and speed until the delphinid cetaceans have moved beyond 50 m
and/or the abeam of the underway vessel;
<bullet> All vessels underway will not divert or alter course in
order to approach any marine mammal. Any vessel underway will avoid
excessive speed or abrupt changes in direction to avoid injury to the
sighted cetacean or pinniped;
<bullet> All vessels must reduce their speed to 10 kn or less when
mother/calf pairs, pods, or large assemblages of cetaceans are observed
near a vessel underway;
<bullet> All vessels must maintain a minimum separation distance of
500 m from right whales. If a whale is observed but cannot be confirmed
as a species other than a right whale, the vessel operator must assume
that it is a right whale and take appropriate action;
<bullet> All vessels must maintain a minimum separation distance of
100 m from or greater from any sighted non-delphinid cetacean;
<bullet> All vessels shall attempt to maintain a separation
distance of 50 m or greater from any sighted delphinid cetacean and
pinniped, with an understanding that at times this may not be possible
(e.g., for animals that approach the vessel); and
<bullet> When marine mammals are sighted while a vessel is
underway, the vessel shall take action as necessary to avoid violating
the relevant separation distance (e.g., attempt to remain parallel to
the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area). If marine mammals are
sighted within the relevant separation distance, the vessel must reduce
speed and shift the engine to neutral, not engaging the engines until
animals are clear of the area. This does not apply to any vessel towing
gear or any vessel that is navigationally constrained.
These requirements do not apply in any case where compliance would
create an imminent and serious threat to a person or vessel or to the
extent that a vessel is restricted in its ability to maneuver and,
because of the restriction, cannot comply.
Project-specific training will be conducted for all vessel crew
prior to the start of a survey and during any changes in crew such that
all survey personnel are fully aware and understand the mitigation,
monitoring, and reporting requirements. Prior to implementation with
vessel crews, the training program will be provided to NMFS for review
and approval. Confirmation of the training and understanding of the
requirements will be documented on a training course log sheet. Signing
the log sheet will certify that the crew member understands and will
comply with the necessary requirements throughout the survey
activities. In addition to the aforementioned measures, Kitty Hawk will
abide by all marine mammal relevant conditions in the Greater Atlantic
Regional Office's (GARFO) informal programmatic consultation, dated
June 29, 2021 (revised September 2021), pursuant to section 7 of the
ESA. These include the relevant best management practices of project
design criteria (PDCs) 4, 5, and 7.
Based on our evaluation of the measures contained within the IHA,
NMFS has determined that the mitigation measures provide the means of
effecting the least practicable impact on marine mammal species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.
Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
planned survey area. Effective reporting is critical both to compliance
as well as ensuring that the most value is obtained from the required
monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or
[[Page 25464]]
cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
<bullet> Mitigation and monitoring effectiveness.
Monitoring Measures
Visual monitoring will be performed by qualified, NMFS-approved
PSOs, the resumes of whom will be provided to NMFS for review and
approval prior to the start of survey activities. Kitty Hawk Wind would
employ independent, dedicated, trained PSOs, meaning that the PSOs must
(1) be employed by a third-party observer provider, (2) have no tasks
other than to conduct observational effort, collect data, and
communicate with and instruct relevant vessel crew with regard to the
presence of marine mammals and mitigation requirements (including brief
alerts regarding maritime hazards), and (3) have successfully completed
an approved PSO training course appropriate for their designated task.
The PSOs will be responsible for monitoring the waters surrounding
each survey vessel to the farthest extent permitted by sighting
conditions, including exclusion zones, during all HRG survey
operations. PSOs will visually monitor and identify marine mammals,
including those approaching or entering the established exclusion zones
during survey activities. It will be the responsibility of the Lead PSO
on duty to communicate the presence of marine mammals as well as to
communicate the action(s) that are necessary to ensure mitigation and
monitoring requirements are implemented as appropriate.
During all HRG survey operations (e.g., any day on which use of an
HRG source is planned to occur), a minimum of one PSO must be on duty
during daylight operations on each survey vessel, conducting visual
observations at all times on all active survey vessels during daylight
hours (i.e., from 30 minutes prior to sunrise through 30 minutes
following sunset). Two PSOs will be on watch during nighttime
operations. The PSO(s) would ensure 360[deg] visual coverage around the
vessel from the most appropriate observation posts and would conduct
visual observations using binoculars and/or night vision goggles and
the naked eye while free from distractions and in a consistent,
systematic, and diligent manner. PSOs may be on watch for a maximum of
4 consecutive hours followed by a break of at least 2 hours between
watches and may conduct a maximum of 12 hours of observation per 24-
hour period. In cases where multiple vessels are surveying
concurrently, any observations of marine mammals would be communicated
to PSOs on all nearby survey vessels.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
proximity to exclusion zones. Reticulated binoculars must also be
available to PSOs for use as appropriate based on conditions and
visibility to support the sighting and monitoring of marine mammals.
During nighttime operations, night-vision goggles with thermal clip-ons
and infrared technology would be used. Position data would be recorded
using hand-held or vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state 3
or less), to the maximum extent practicable, PSOs would also conduct
observations when the acoustic source is not operating for comparison
of sighting rates and behavior with and without use of the active
acoustic sources. Any observations of marine mammals by crew members
aboard any vessel associated with the survey would be relayed to the
PSO team.
Data on all PSO observations would be recorded based on standard
PSO collection requirements. This would include dates, times, and
locations of survey operations; dates and times of observations,
location and weather; details of marine mammal sightings (e.g.,
species, numbers, behavior); and details of any observed marine mammal
behavior that occurs (e.g., noted behavioral disturbances).
Reporting Measures
Within 90 days after completion of survey activities or expiration
of this IHA, whichever comes sooner, a final technical report will be
provided to NMFS that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring, summarizes
the number of marine mammals observed during survey activities (by
species, when known), summarizes the mitigation actions taken during
surveys (including what type of mitigation and the species and number
of animals that prompted the mitigation action, when known), and
provides an interpretation of the results and effectiveness of all
mitigation and monitoring. Any recommendations made by NMFS must be
addressed in the final report prior to acceptance by NMFS. All draft
and final marine mammal and acoustic monitoring reports must be
submitted to <a href="/cdn-cgi/l/email-protection#174745395e4347395a78797e6378657e797045726778656364577978767639707861"><span class="__cf_email__" data-cfemail="7020225e3924205e3d1f1e19041f02191e172215001f020403301e1f11115e171f06">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#81c8d5d1afc5e0edf8c1efeee0e0afe6eef7"><span class="__cf_email__" data-cfemail="e8a1bcb8c6ac898491a886878989c68f879e">[email protected]</span></a>.
The report must contain at minimum, the following:
<bullet> PSO names and affiliations;
<bullet> Dates of departures and returns to port with port name;
<bullet> Dates and times (Greenwich Mean Time) of survey effort and
times corresponding with PSO effort;
<bullet> Vessel location (latitude/longitude) when survey effort
begins and ends; vessel location at beginning and end of visual PSO
duty shifts;
<bullet> Vessel heading and speed at beginning and end of visual
PSO duty shifts and upon any line change;
<bullet> Environmental conditions while on visual survey (at
beginning and end of PSO shift and whenever conditions change
significantly), including wind speed and direction, Beaufort sea state,
Beaufort wind force, swell height, weather conditions, cloud cover, sun
glare, and overall visibility to the horizon;
<bullet> Factors that may be contributing to impaired observations
during each PSO shift change or as needed as environmental conditions
change (e.g., vessel traffic, equipment malfunctions);
<bullet> Survey activity information, such as type of survey
equipment in operation, acoustic source power output while in
operation, and any other notes of significance (i.e., pre-clearance
survey, ramp-up, shutdown, end of operations, etc.).
If a marine mammal is sighted, the following information should be
recorded:
<bullet> Watch status (sighting made by PSO on/off effort,
opportunistic, crew, alternate vessel/platform);
<bullet> PSO who sighted the animal;
<bullet> Time of sighting;
<bullet> Vessel location at time of sighting;
<bullet> Water depth;
<bullet> Direction of vessel's travel (compass direction);
<bullet> Direction of animal's travel relative to the vessel;
<bullet> Pace of the animal;
<bullet> Estimated distance to the animal and its heading relative
to vessel at initial sighting;
<bullet> Identification of the animal (e.g., genus/species, lowest
possible taxonomic level, or unidentified); also note the composition
of the group if there is a mix of species;
<bullet> Estimated number of animals (high/low/best);
[[Page 25465]]
<bullet> Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
<bullet> Description (as many distinguishing features as possible
of each individual seen, including length, shape, color, pattern, scars
or markings, shape and size of dorsal fin, shape of head, and blow
characteristics);
<bullet> Detailed behavior observations (e.g., number of blows,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior);
<bullet> Animal's closest point of approach and/or closest distance
from the center point of the acoustic source;
<bullet> Platform activity at time of sighting (e.g., deploying,
recovering, testing, data acquisition, other);
<bullet> Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration,
etc.) and time and location of the action.
If a NARW is observed at any time by PSOs or personnel on any
project vessels, during surveys or during vessel transit, Kitty Hawk
Wind must immediately report sighting information to the NMFS NARW
Sighting Advisory System: (866) 755-6622. NARW sightings in any
location must also be reported to the U.S. Coast Guard via channel 16.
In the event that Kitty Hawk Wind personnel discover an injured or
dead marine mammal, Kitty Hawk Wind would report the incident to the
NMFS Office of Protected Resources (OPR) and the NMFS Southeast Marine
Mammal Stranding Network (1-877-942-5343) if the sighting is in North
Carolina or the Northeast Stranding Network (1-866-755-6622) if the
sighting is in Virginia as soon as feasible. The report would include
the following information:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition if
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.
In the unanticipated event of a ship strike of a marine mammal by
any vessel involved in the activities covered by the IHA, Kitty Hawk
Wind would report the incident to the NMFS OPR and the NMFS Southeast
Marine Mammal Stranding Network (1-877-942-5343) if the sighting is in
North Carolina or the Northeast Stranding Network (1-866-755-6622) if
the sighting is in Virginia as soon as feasible but within 24 hours.
The report would include the following information:
<bullet> Time, date, and location (latitude/longitude) of the
incident;
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Vessel's speed during and leading up to the incident;
<bullet> Vessel's course/heading and what operations were being
conducted (if applicable);
<bullet> Status of all sound sources in use;
<bullet> Description of avoidance measures/requirements that were
in place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
<bullet> Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
<bullet> Estimated size and length of animal that was struck;
<bullet> Description of the behavior of the marine mammal
immediately preceding and following the strike;
<bullet> If available, description of the presence and behavior of
any other marine mammals immediately preceding the strike;
<bullet> Estimated fate of the animal (e.g., dead, injured but
alive, injured and moving, blood or tissue observed in the water,
status unknown, disappeared); and
<bullet> To the extent practicable, photographs or video footage of
the animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number 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 impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), 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' 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 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 and serious injury, or ambient noise
levels).
To avoid repetition, the majority of our analysis applies to the
species listed in Table 6, given that many of the anticipated effects
of the survey to be similar in nature. Where there are meaningful
differences between species or stocks, or groups of species, in
anticipated individual responses to activities, impact of the
authorized take on the population due to differences in population
status, or impacts on habitat, they are included in a separate sub-
section. For all species, NMFS does not anticipate that mortality,
serious injury, or injury would occur as a result from HRG surveys,
even in the absence of mitigation, and no serious injury or mortality
is authorized.
As discussed in the Potential Effects of Specified Activities on
Marine Mammals and their Habitat section above, 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 shutdown zones
for certain activities.
In addition to being temporary, the maximum expected harassment
zone around a survey vessel from sparker use is 445 m and 13 m from
boomer use. The ensonified area surrounding each vessel is relatively
small compared to the overall distribution of the animals in
[[Page 25466]]
the area and their use of the habitat. Feeding behavior is not likely
to be significantly impacted as the impacts of the surveys are limited
to very small areas around each vessel, prey species are mobile and are
broadly distributed throughout the survey area; therefore, marine
mammals that may be temporarily displaced during survey activities are
expected to be able to resume foraging once they have moved away from
areas with disturbing levels of underwater noise. Because of the
temporary nature of the disturbance and the availability of similar
habitat and resources in the surrounding area, the impacts to marine
mammals and the food sources that they utilize are not expected to
cause significant or long-term consequences for individual marine
mammals or their populations.
There are no rookeries, mating or calving grounds known to be
biologically important to marine mammals within the survey area and
there are no feeding areas known to be biologically important to marine
mammals within the survey area. There is no designated critical habitat
for any ESA-listed marine mammals in the survey area.
North Atlantic Right Whales
The status of the NARW population is of heightened concern and,
therefore, merits additional analysis. As discussed in the notice of
proposed IHA (87 FR 7139; February 8, 2022), 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 noted previously, the survey area overlaps a migratory corridor BIA
for NARWs. Due to the fact that the survey activities are temporary and
the spatial extent of sound produced by the survey will be very small
relative to the spatial extent of the available migratory habitat in
the BIA, right whale migration is not expected to be impacted by the
survey. Given the relatively small size of the ensonified area, it is
unlikely that prey availability would be adversely affected by Kitty
Hawk Wind's proposed survey operations. Required vessel strike
avoidance measures would also decrease risk of ship strike during
migration; no ship strike is expected to occur during Kitty Hawk Wind's
proposed activities. Additionally, only very limited take by Level B
harassment of NARWs has been authorized by NMFS and we anticipate a
very low level of harassment, should it occur, because Kitty Hawk Wind
would be required to maintain a shutdown zone of 500 m if a NARW is
observed. The authorized take accounts for any missed animals wherein
the survey equipment is not shutdown immediately. Because shutdown
would occur immediately upon detection (if the whale is within 500 m),
it is likely the exposure time would be very limited and received
levels would not be much above harassment thresholds. Further, the 500
m shutdown zone for right whales is conservative, considering the Level
B harassment isopleth for the most impactful acoustic source (i.e.,
sparker- which may not be used on all survey days) is estimated to be
445 m, and thereby minimizes the potential for behavioral harassment of
this species. As noted previously, Level A harassment is not expected
due to the characteristics of the signals produced by the acoustic
sources planned for use; this finding is further enforced by the
proposed mitigation measures. NMFS does not anticipate NARW takes that
would result from Kitty Hawk Wind's activities would impact annual
rates of recruitment or survival. Thus, any takes that occur will not
result in population level impacts.
Other Marine Mammal Species With Active UMEs
As discussed above, there are several active UMEs occurring in the
vicinity of Kitty Hawk Wind's survey area. Elevated humpback whale
mortalities have occurred along the Atlantic coast from Maine through
Florida since January 2016. Of the cases examined, approximately half
had evidence of human interaction (ship strike or entanglement). The
UME does not yet provide cause for concern regarding population-level
impacts. Despite the UME, the relevant population of humpback whales
(the West Indies breeding population, or DPS) remains stable at
approximately 12,000 individuals.
Beginning in January 2017, elevated minke whale strandings have
occurred along the Atlantic coast from Maine through South Carolina,
with highest numbers in Massachusetts, Maine, and New York. This event
does not provide cause for concern regarding population level impacts,
as the likely population abundance is greater than 20,000 whales.
The mitigation measures are expected to reduce the number and/or
severity of takes for all species listed in Table 6, including those
with active UMEs, to the level of least practicable adverse impact. In
particular they would provide animals the opportunity to move away from
the sound source throughout the survey area before HRG survey equipment
reaches full energy, thus preventing them from being exposed to sound
levels that have the potential to cause injury (Level A harassment) or
more severe Level B harassment. No Level A harassment is anticipated,
even in the absence of mitigation measures, or authorized.
NMFS expects that takes will be in the form of short-term Level B
behavioral harassment by way of brief startling reactions and/or
temporary vacating of the area, or decreased foraging (if such activity
was occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals will only be exposed briefly to a small ensonified area that
might result in take. Additionally, the mitigation measures would
further reduce exposure to sound that could result in more severe
behavioral harassment.
In summary and as described above, the following factors support
our determination that the impacts resulting from this activity are not
expected to adversely affect the species or stock through effects on
annual rates of recruitment or survival:
<bullet> No mortality or serious injury is anticipated or
authorized;
<bullet> No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, or authorized;
<bullet> Foraging success is not likely to be significantly
impacted as effects on species that serve as prey species for marine
mammals from the survey are expected to be minimal;
<bullet> The availability of alternate areas of similar habitat
value for marine mammals to temporarily vacate the survey area during
the planned survey to avoid exposure to sounds from the activity;
<bullet> Take is anticipated to be by Level B behavioral harassment
only consisting of brief startling reactions and/or temporary avoidance
of the survey area;
<bullet> While the survey area is within areas noted as a migratory
BIA for NARWs, the activities will occur in such a comparatively small
area such that any avoidance of the survey area due to activities will
not affect migration. In addition, the requirement to shut down at 500
m to minimize potential for Level B behavioral harassment would limit
the effects of the action on migratory behavior of the species; and
<bullet> The mitigation measures, including visual monitoring and
shutdowns, are expected to minimize potential impacts to marine
mammals.
[[Page 25467]]
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the
activity will have a negligible impact on all affected marine mammal
species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities. For this IHA, take of
all species or stocks is below one third of the estimated stock
abundance (in fact, take of individuals is less than 7 percent of the
abundance for all affected stocks).
Based on the analysis contained herein of the proposed activity
(including the mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS finds that small numbers of marine mammals
would be taken relative to the population size of the affected species
or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act 1973 (ESA; 16 U.S.C.
1531 et seq.) requires that each Federal agency insure that any action
it authorizes, funds, or carries out is not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of designated critical
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS
consults internally whenever we propose to authorize take for
endangered or threatened species.
NMFS is authorizing take, by Level B harassment only, of NARWs, fin
whales, and sei whales which are listed under the ESA. On June 29, 2021
(revised September 2021), GARFO completed an informal programmatic
consultation on the effects of certain site assessment and site
characterization activities to be carried out to support the siting of
offshore wind energy development projects off the U.S. Atlantic coast.
Part of the activities considered in the consultation are geophysical
surveys such as those proposed by Kitty Hawk Wind and for which we are
proposing to authorize take. GARFO concluded site assessment surveys
are not likely to adversely affect endangered species or adversely
modify or destroy critical habitat. NMFS has determined issuance of the
IHA is covered under the programmatic consultation; therefore, ESA
consultation has been satisfied.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our action (i.e., the issuance of an IHA) with respect
to potential impacts on the human environment. This action is
consistent with categories of activities identified in Categorical
Exclusion B4 (IHAs with no anticipated serious injury or mortality) of
the Companion Manual for NOAA Administrative Order 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has determined that the
issuance of the final IHA qualifies to be categorically excluded from
further NEPA review.
Authorization
As a result of these determinations, NMFS has issued an IHA to
Kitty Hawk Wind for conducting marine site characterization surveys off
the coast of North Carolina and Virginia, provided the previously
mentioned mitigation, monitoring, and reporting requirements are
incorporated. The final IHA and supporting documents can be found 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>.
Dated: April 25, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-09186 Filed 4-28-22; 8:45 am]
BILLING CODE 3510-22-P
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