Notice2022-10389
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Offshore of New Jersey
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
May 13, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that NMFS has issued a Renewal incidental harassment authorization (IHA) to Ocean Wind LLC (Ocean Wind) to incidentally harass marine mammals incidental to marine site characterization survey activities off the coast of New Jersey in the areas of the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS)-A 0498 (Lease Area) and federal and state waters along potential export cable routes (ECRs) to landfall locations between Raritan Bay (part of the New York Bight) and Delaware Bay.
Full Text
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<title>Federal Register, Volume 87 Issue 93 (Friday, May 13, 2022)</title>
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[Federal Register Volume 87, Number 93 (Friday, May 13, 2022)]
[Notices]
[Pages 29289-29297]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-10389]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB970]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Offshore of New Jersey
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of Renewal incidental harassment authorization
(IHA).
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA), as amended, notification is hereby given
that NMFS has issued a Renewal incidental harassment authorization
(IHA) to Ocean Wind LLC (Ocean Wind) to incidentally harass marine
mammals incidental to marine site characterization survey activities
off the coast of New Jersey in the areas of the Bureau of Ocean Energy
Management (BOEM) Commercial Lease of Submerged Lands for Renewable
Energy Development on the Outer Continental Shelf (OCS)-A 0498 (Lease
Area) and federal and state waters along potential export cable routes
(ECRs) to landfall
[[Page 29290]]
locations between Raritan Bay (part of the New York Bight) and Delaware
Bay.
DATES: This renewal IHA is valid May 10, 2022 to May 09, 2023 (one year
from the expiration of the initial IHA).
FOR FURTHER INFORMATION CONTACT: Jenna Harlacher, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the original
application, Renewal request, and supporting documents (including NMFS
Federal Register notices of the original proposed and final
authorizations, and the previous IHA), as well as a list of the
references cited in this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The Marine Mammal Protection Act (MMPA) prohibits the ``take'' of
marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D)
of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon request, the incidental, but not
intentional, taking of small numbers of marine mammals by U.S. citizens
who engage in a specified activity (other than commercial fishing)
within a specified geographical region if certain findings are made and
either regulations are proposed or, if the taking is limited to
harassment, a notice of a proposed incidental take authorization is
provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such species or stocks for
taking for certain subsistence uses (referred to here as ``mitigation
measures''). Monitoring and reporting of such takings are also
required. The meaning of key terms such as ``take,'' ``harassment,''
and ``negligible impact'' can be found in section 3 of the MMPA (16
U.S.C. 1362) and the agency's regulations at 50 CFR 216.103.
NMFS' regulations implementing the MMPA at 50 CFR 216.107(e)
indicate that IHAs may be renewed for additional periods of time not to
exceed one year for each reauthorization. In the notice of proposed IHA
for the initial authorization, NMFS described the circumstances under
which we would consider issuing a Renewal for this activity, and
requested public comment on a potential Renewal under those
circumstances. Specifically, on a case-by-case basis, NMFS may issue a
one-time one-year Renewal IHA following notice to the public providing
an additional 15 days for public comments when (1) up to another year
of identical or nearly identical, or nearly identical, activities as
described in the Detailed Description of Specified Activities section
of the initial IHA issuance notice is planned or (2) the activities as
described in the Detailed Description of Specified Activities section
of the initial IHA issuance notice would not be completed by the time
the initial IHA expires and a Renewal would allow for completion of the
activities beyond that described in the DATES section of the initial
IHA issuance, provided all of the following conditions are met:
(1) A request for renewal is received no later than 60 days prior
to the needed Renewal IHA effective date (recognizing that the Renewal
IHA expiration date cannot extend beyond one year from expiration of
the initial IHA).
(2) The request for renewal must include the following:
<bullet> An explanation that the activities to be conducted under
the requested Renewal IHA are identical to the activities analyzed
under the initial IHA, are a subset of the activities, or include
changes so minor (e.g., reduction in pile size) that the changes do not
affect the previous analyses, mitigation and monitoring requirements,
or take estimates (with the exception of reducing the type or amount of
take).
<bullet> A preliminary monitoring report showing the results of the
required monitoring to date and an explanation showing that the
monitoring results do not indicate impacts of a scale or nature not
previously analyzed or authorized.
(3) Upon review of the request for Renewal, the status of the
affected species or stocks, and any other pertinent information, NMFS
determines that there are no more than minor changes in the activities,
the mitigation and monitoring measures will remain the same and
appropriate, and the findings in the initial IHA remain valid.
An additional public comment period of 15 days (for a total of 45
days), with direct notice by email, phone, or postal service to
commenters on the initial IHA, is provided to allow for any additional
comments on the proposed Renewal. A description of the Renewal process
may be found on our website at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals">www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-harassment-authorization-renewals</a>.
History of Request
On May 10, 2021, NMFS issued an IHA to Ocean Wind to take marine
mammals incidental to marine site characterization survey activities
off the coast of New Jersey in the areas of the Commercial Lease of
Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf (OCS-A 0498) and along potential submarine cable
routes to landfall locations in New Jersey (86 FR 6465), effective from
May 10, 2021 through May 09, 2022. On February 18, 2022, NMFS received
an application for the Renewal of that initial IHA. As described in the
application for Renewal, the activities for which incidental take is
requested are identical to those covered in the initial authorization.
As required, the applicant also provided a preliminary monitoring
report (available at <a href="http://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-llc-marine-site-characterization-surveys-new-jersey">www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-llc-marine-site-characterization-surveys-new-jersey</a>) which confirms that the applicant has implemented the required
mitigation and monitoring, and which also shows that no impacts of a
scale or nature not previously analyzed or authorized have occurred as
a result of the activities conducted. The notice of the proposed
Renewal incidental harassment authorization was published on April 11,
2022 (87 FR 21098).
Description of the Specified Activities and Anticipated Impacts
Ocean Wind plans to conduct a second year of high-resolution
geophysical (HRG) marine site characterization surveys in the Lease
Area and along potential ECRs to landfall locations in New Jersey,
between Raritan Bay (part of the New York Bight) and Delaware Bay. The
location, timing, and nature of the activities, including the types of
equipment planned for use, are identical to those described in the
original IHA. The purpose of the marine site characterization surveys
are to obtain an assessment of seabed (geophysical, geotechnical, and
geohazard), ecological, and archeological conditions within the
footprint of a planned offshore wind facility development. Surveys are
also conducted to support engineering design and to map unexploded
ordnance. Underwater sound resulting from Ocean Wind's site
[[Page 29291]]
characterization survey activities, specifically HRG surveys, has the
potential to result in incidental take of marine mammals in the form of
Level B harassment.
In their 2020 IHA application, Ocean Wind estimated it would
conduct surveys at a rate of 70 kilometers (km) per survey day. Ocean
Wind defined a survey day as a 24-hour activity day. Based on the
planned 24-hours operations, the number of estimated survey days varies
between the Lease Area and ECR area, with 142 vessel survey days
expected in the Lease Area and 133 vessel survey days in the ECR area,
with a total of 275 survey days. A maximum of 2 vessels would operate
concurrently in areas where 24-hr operations would be conducted, with
an additional third vessel potentially conducting daylight-only survey
effort in shallow-water areas. The Renewal IHA authorizes harassment of
marine mammals for a second year of identical survey activities to be
completed in one year, in the same area, using survey methods identical
to those described in the initial IHA application; therefore, the
anticipated impacts on marine mammals and the affected stocks also
remain the same.
Accordingly, the amount of take requested for the Renewal IHA is
also identical to that authorized in the initial IHA. All active
acoustic sources and mitigation and monitoring measures would remain
exactly as described in the Federal Register notices of the initial
proposed IHA (86 FR 17783; April 06, 2021) and issued initial final IHA
(86 FR 26465; May 14, 2021).
The following documents are referenced in this notice and include
important supporting information:
<bullet> Initial final IHA (86 FR 26465; May 14, 2021);
<bullet> Initial proposed IHA (86 FR 17783; April 06, 2021); and
<bullet> 2021 IHA application, references cited, and previous
public comments received (available at <a href="http://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-llc-marine-site-characterization-surveys-new-jersey">www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-llc-marine-site-characterization-surveys-new-jersey</a>).
Detailed Description of the Activity
A detailed description of the planned marine site characterization
survey activities may be found in the Federal Register notice of the
IHA (86 FR 17783; April 06, 2021) for the initial authorization. Ocean
Wind plans to complete the survey activities analyzed in the initial
IHA by the date the IHA expires (May 09, 2022). The surveys Ocean Wind
plans to conduct under this renewal would be a second year of identical
surveys in the same area. The general location and nature of the
activities, including the types of equipment planned for use, are
identical to those described in the previous notices. The Renewal IHA
is effective for a maximum period of one year from the date of
issuance, with the expiration date not later than May 09, 2023 (one
year from the expiration of the initial IHA).
Description of Marine Mammals
A description of the marine mammals in the area of the activities
for which authorization of take is planned here, including information
on abundance, status, distribution, and hearing, may be found in the
Federal Register notice of the proposed IHA for the initial
authorization (86 FR 17783; April 06, 2021). NMFS has reviewed the
preliminary monitoring data from the initial IHA, recent draft Stock
Assessment Reports, information on relevant Unusual Mortality Events,
and other scientific literature. Newly available information is
described below.
The draft 2021 Stock Assessment Reports (SARs, available online at:
<a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports">www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports</a>) provide updated information for
several stocks. Estimated abundance has increased for the U.S.
population of gray seals (from 27,131 (CV=0.19) to 27,300 (CV=0.22)).
Abundance estimates have decreased for Risso's dolphins (from 35,493
(CV=0.19 to 35,215 (CV=0.19)) and harbor seals (from 75,834 (CV=0.15)
to 61,336 (CV=0.08)). Abundance estimates for North Atlantic right
whales have also been updated in the draft 2021 SAR, which states that
right whale abundance has decreased from 412 to 368 (95% CI 356-378)
individuals (Hayes et al., 2021).
Roberts et al. (2021) provided updated modeling methodology
(statistical methods for characterizing model uncertainty) with updated
monthly densities of North Atlantic right whales since the time of the
initial IHA. This model also incorporated additional data from spring
2019 which added transect and sighting data. The new model results
slightly increased density estimates for North Atlantic right whales in
southern New England, but these results do not meaningfully impact the
information supporting exposure estimation in the survey area here.
In addition, NMFS has recently acknowledged that the population
estimate of NARWs is now under 350 animals (<a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>). We
anticipate that this information will be presented in the draft 2022
SAR. However, 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 the Ocean Wind survey activities. The status and
trends of the NARW population remain unchanged.
NMFS has determined that neither this nor any other new information
affects which species or stocks have the potential to be affected or
the pertinent information contained in the supporting documents for the
initial IHA.
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activity on
marine mammals and their habitat for the activities for which take is
authorized here may be found in the Federal Register notice for the
proposed initial IHA (86 FR 17783; April 06, 2021). NMFS has reviewed
the monitoring data from the initial IHA, recent draft Stock Assessment
Reports, information on relevant Unusual Mortality Events, other
scientific literature, and the public comments, and determined that
neither this nor any other new information affects our initial analysis
of impacts on marine mammals and their habitat.
Estimated Take
A detailed description of the methods and inputs used to estimate
take for the specified activity are found in the notices of the
proposed (86 FR 17783; April 06, 2021) and final (86 FR 26465; May 14,
2021) initial IHAs. The acoustic source types, as well as source levels
applicable to this renewal authorization, methods of take, and
methodology of estimating take remain unchanged from the initial IHA.
Accordingly, the stocks taken, type of take (i.e., Level B harassment
only), and amount of take remain unchanged from what was previously
authorized in the previously issued IHA. The amount of take authorized
through this renewal is indicated below in Table 1.
[[Page 29292]]
Table 1--Authorized Take and Proportion of Population Potentially Affected
----------------------------------------------------------------------------------------------------------------
Abundance Takes by Level
Species estimate \1\ B harassment % Population
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale (Eubalaena glacialis)................ \2\ 368 9 2.44
Humpback whale (Megaptera novaeangliae)......................... 1,396 2 0.14
Fin whale (Balaenoptera physalus)............................... 6,802 6 0.09
Sei whale (Balaenoptera borealis)............................... 6,292 1 0.02
Minke whale (Balaenoptera acutorostrata)........................ 21,968 2 0.01
Sperm whale (Physeter macrocephalus)............................ 4,349 3 0.07
Long-finned pilot whale (Globicephala melas).................... 39,215 2 0.01
Common bottlenose dolphin (offshore) (Tursiops truncatus)....... 62,851 262 0.42
Common bottlenose dolphin (migratory) (Tursiops truncatus)...... 6,639 1,410 21.24
Short-finned pilot whale (Globicephala macrorhynchus)........... 28,924 2 0.01
Atlantic white-sided dolphin (Lagenorhynchus acutus)............ 93,233 16 0.02
Atlantic spotted dolphin (Stenella frontalis)................... 39,921 3 0.01
Risso's dolphin (Stenella frontalis)............................ 35,215 30 0.09
Common dolphin (Delphinus delphis).............................. 172,974 124 0.07
Harbor porpoise (Phocoena phocoena)............................. 95,543 91 0.10
Harbor seal (Phoca vitulina).................................... 61,336 11 0.02
Gray seal (Halichoerus grypus).................................. 451,431 11 0.00
----------------------------------------------------------------------------------------------------------------
W.N.A.=Western North Atlantic.
\1\ Abundance estimates have been updated from the initial IHA (86 FR 26465; May 14, 2021) using the 2021 Draft
SARs (Hayes et al., 2021).
\2\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species web page to recognize the
population estimate for NARWs is now below 350 animals (<a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>).
Description of Mitigation, Monitoring and Reporting Measures
The mitigation, monitoring, and reporting measures included as
requirements in this authorization are identical to those included in
the Federal Register notice announcing the issuance of the initial IHA
(86 FR 26465; May 14, 2021), and the discussion of the least
practicable adverse impact included in that document remains
applicable. All mitigation, monitoring and reporting measures in the
initial IHA are carried over to this Renewal IHA and summarized below.
<bullet> Exclusion Zones (EZ): Marine mammal EZs would be
established around the HRG survey equipment and monitored by PSOs
during marine site characterization surveys as follows: A 500-m EZ for
North Atlantic right whales during use of all acoustic sources, and a
100-m EZ for all other marine mammals during use of impulsive acoustic
sources (e.g., boomers and/or sparkers).
<bullet> Ramp-up: A ramp-up procedure would be used for HRG
equipment capable of adjusting energy levels at the start or re-start
of survey activities.
<bullet> Shutdown of HRG Equipment: If an HRG source is active and
a marine mammal is observed within or entering a relevant EZ (as
described above), an immediate shutdown of the HRG survey equipment
would be required. 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 (48 m, non-impulsive; 141 m
impulsive), shutdown would occur.
<bullet> Vessel strike avoidance measures: Vessel strike measures
include, but are not limited to, separation distances for large whales
(500 m North Atlantic right whales, 100 m other large whales; 50 m
other cetaceans and pinnipeds), restricted vessel speeds, and
operational maneuvers.
<bullet> Protected Species Observers (PSOs): A minimum of one NMFS-
approved PSO would be on duty and conducting visual observations at all
times during daylight hours (i.e., from 30 minutes prior to sunrise
through 30 minutes following sunset) and two active duty PSOs will be
on watch during all nighttime operations.
<bullet> Reporting: Ocean Wind would submit a final technical
report within 90 days following completion of the surveys. In the event
that Ocean Wind personnel discover an injured or dead marine mammal,
Ocean Wind shall report the incident to the Office of Protected
Resources (OPR), NMFS and to the New England/Mid-Atlantic Regional
Stranding Coordinator through the NOAA Fisheries Marine Mammal and Sea
Turtle Stranding and Entanglement Hotline as soon as feasible. In the
event of a ship strike of a marine mammal by any vessel involved in the
activities covered by the authorization, Ocean Wind shall report the
incident immediately to OPR, NMFS and to the New England/Mid-Atlantic
Regional Stranding Coordinator through the NOAA Fisheries Marine Mammal
and Sea Turtle Stranding and Entanglement Hotline.
Comments and Responses
A notice of NMFS' proposal to issue a Renewal IHA to Ocean Wind was
published in the Federal Register April 11, 2022 (87 FR 21098). That
notice either described, or referenced descriptions of, Ocean Wind's
activity, the marine mammal species that may be affected by the
activity, the anticipated effects on marine mammals and their habitat,
estimated amount and manner of take, and proposed mitigation,
monitoring and reporting measures. NMFS received comments from Clean
Ocean Action and Save Long Beach Island (LBI). The comments and our
responses are summarized below, and the letters are available online
at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-llc-marine-site-characterization-surveys-new-jersey">https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-llc-marine-site-characterization-surveys-new-jersey</a>). Please review the letters for full details regarding the
comments and underlying justification. We note that LBI, in addition to
providing comments via email, referenced and submitted a February 2022
letter originally submitted for a different action. Where appropriate,
we respond herein to comments referenced from that letter. Full
responses to the comments provided in that letter may be found in the
notice of issuance of IHA to Atlantic Shores Offshore Wind, LLC (87 FR
24103; April 22, 2022).
Comment 1: LBI requested that NMFS extend the comment period for
the proposed renewal IHA, asserting that the proposed renewal raises
substantial concerns and that the proposed renewal notice does not
provide sufficient
[[Page 29293]]
information on which to evaluate the proposed action.
Response: NMFS disagrees with LBI's comments and does not grant the
request. NMFS' IHA renewal process meets all statutory requirements. In
prior responses to comments about IHA renewals (e.g., 87 FR 24103;
April 22, 2022, 84 FR 52464; October 2, 2019 and 85 FR 53342; August
28, 2020), NMFS has explained how the renewal process, as implemented,
is consistent with the statutory requirements contained in section
101(a)(5)(D) of the MMPA, and, further, promotes NMFS' goals of
improving conservation of marine mammals and increasing efficiency in
the MMPA compliance process. The Notice of the proposed IHA published
in the Federal Register on April 06, 2021 (86 FR 17783) made clear that
the agency was seeking comment on the proposed IHA and the potential
issuance of a renewal for this survey.
Because any renewal is limited to another year of identical or
nearly identical activities in the same location or the same activities
that were not completed within the 1-year period of the initial IHA,
reviewers have the information needed to effectively comment on both
the immediate proposed IHA and a possible 1-year renewal, should the
IHA holder choose to request one in the coming months. While there
would be additional documents submitted with a renewal request, for a
qualifying renewal these would be limited to documentation that NMFS
would make available and use to verify that the activities are
identical to those in the initial IHA, are nearly identical such that
the changes would have either no effect on impacts to marine mammals or
decrease those impacts, or are a subset of activities already analyzed
and authorized but not completed under the initial IHA. NMFS would also
need to confirm, among other things, that the activities would occur in
the same location; involve the same species and stocks; provide for
continuation of the same mitigation, monitoring, and reporting
requirements; and that no new information has been received that would
alter the prior analysis. The renewal request would also contain a
preliminary monitoring report, in order to verify that effects from the
activities do not indicate impacts of a scale or nature not previously
analyzed. The additional 15-day public comment period provides the
public an opportunity to review these few documents, provide any
additional pertinent information and comment on whether they think the
criteria for a renewal have been met. Between the initial 30-day
comment period on these same activities and the additional 15 days, the
total comment period for a renewal is 45 days. In addition to the IHA
renewal process being consistent with all requirements under section
101(a)(5)(D), it is also consistent with Congress' intent for issuance
of IHAs to the extent reflected in statements in the legislative
history of the MMPA. Through the provision for renewals in the
regulations, description of the process and express invitation to
comment on specific potential renewals in the Request for Public
Comments section of each proposed IHA, the description of the process
on NMFS' website, further elaboration on the process through responses
to comments such as these, posting of substantive documents on the
agency's website, and provision of 30 or 45 days for public review and
comment on all proposed initial IHAs and Renewals respectively, NMFS
has ensured that the public is ``invited and encouraged to participate
fully in the agency's decision-making process'', as Congress intended.
Moreover, NMFS disagrees with LBI's assertions regarding the
supposed ``substantial issues'' presented by the proposed issuance of
the renewal IHA. NMFS has addressed these concerns in detail through
response to LBI's February 2022 letter (87 FR 24103; April 22, 2022),
which was attached to its comments on this proposed action and, as
appropriate relative to its comments on this action, we reiterate
certain of those responses below.
Comment 2: COA asserted that NMFS has failed to appropriately
account for cumulative impacts, noting that this was specifically
important given the large number of offshore wind-related activities
being planned in the northeast region. LBI provided similar concerns
regarding NMFS' evaluation of cumulative impacts.
Response: Neither the MMPA nor NMFS' codified implementing
regulations call for consideration of other unrelated activities and
their impacts on populations. The preamble for NMFS' implementing
regulations (54 FR 40338; September 29, 1989) states in response to
comments that the impacts from other past and ongoing anthropogenic
activities are to be incorporated into the negligible impact analysis
via their impacts on the baseline. Consistent with that direction, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline, e.g., as reflected in the density/distribution and status of
the species, population size and growth rate, and other relevant
stressors. The 1989 final rule for the MMPA implementing regulations
also addressed public comments regarding cumulative effects from
future, unrelated activities. There NMFS stated that such effects are
not considered in making findings under section 101(a)(5) concerning
negligible impact. In this case, this renewal IHA, as well as other
IHAs currently in effect or proposed within the specified geographic
region, are appropriately considered an unrelated activity relative to
the others. The IHAs are unrelated in the sense that they are discrete
actions under section 101(a)(5)(D), issued to discrete applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of the specified activity or
class of activities that can be expected to result in incidental taking
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, Ocean Wind was the applicant for the renewal IHA, and
we are responding to the specified activity as described in that
application (and making the necessary findings on that basis).
Through the response to public comments in the 1989 implementing
regulations, NMFS also indicated (1) that we would consider cumulative
effects that are reasonably foreseeable when preparing a NEPA analysis,
and (2) that reasonably foreseeable cumulative effects would also be
considered under section 7 of the ESA for ESA-listed species, as
appropriate. Accordingly, NMFS has written Environmental Assessments
(EA) that addressed cumulative impacts related to substantially similar
activities, in similar locations, e.g., the 2017 Ocean Wind, LLC EA for
site characterization surveys off New Jersey; the 2018 Deepwater Wind
EA for survey activities offshore Delaware, Massachusetts, and Rhode
Island; the 2019 Avangrid EA for survey activities offshore North
Carolina and Virginia; and the 2019 Orsted EA for survey activities
offshore southern New England. Cumulative impacts regarding issuance of
IHAs for site characterization survey activities such as those planned
by Ocean Wind have been adequately addressed under NEPA in prior
environmental analyses that support NMFS' determination that this
action is appropriately categorically
[[Page 29294]]
excluded from further NEPA analysis. NMFS independently evaluated the
use of a categorical exclusion for issuance of Ocean Wind's renewal
IHA, which included consideration of extraordinary circumstances.
Separately, the cumulative effects of substantially similar
activities in the same geographic region have been analyzed in the past
under section 7 of the ESA when NMFS has engaged in formal intra-agency
consultation, such as the 2013 programmatic Biological Opinion for BOEM
Lease and Site Assessment Rhode Island, Massachusetts, New York, and
New Jersey Wind Energy Areas (<a href="https://repository.library.noaa.gov/view/noaa/29291">https://repository.library.noaa.gov/view/noaa/29291</a>). Analyzed activities include those for which NMFS issued
Atlantic Shores' 2020 IHA and subsequent 2021 renewal IHA (85 FR 21198;
April 16, 2020 and 86 FR 21289; April 22, 2021), which are
substantially similar to those planned by Ocean Wind under this current
renewal IHA request and their previous 2021 IHA. This Biological
Opinion determined that NMFS' issuance of IHAs for site
characterization survey activities associated with leasing,
individually and cumulatively, are not likely to adversely affect
listed marine mammals. NMFS notes, that while issuance of this renewal
IHA is covered under a different consultation, this BiOp remains valid
and the surveys currently planned by Ocean Wind from 2022 to 2023 could
have fallen under the scope of those analyzed previously.
Comment 3: LBI stated that NMFS should ``consolidate'' its review
of Ocean Wind's request for renewal IHA with the recent IHA request
made by Atlantic Shores Offshore Wind, LLC, suggesting that activities
occurring within the same ``specified geographical region'' should be
considered singly. LBI notes that the respective survey activities are
occurring during similar timeframes in similar spatial locations.
Response: NMFS disagrees with this comment. We reiterate that
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,
and will not result in an unmitigable adverse impact on the
availability of marine mammals for taking for subsistence uses, and
that the ``specified activity'' for which incidental take coverage is
being sought under section 101(a)(5)(D) is appropriately defined and
described by the applicant. Please see the response to Comment #2,
regarding NMFS' analysis of cumulative impacts.
NMFS is required to consider applications upon request. To date,
NMFS has not received any joint application from Ocean Wind and
Atlantic Shores regarding their site characterization surveys off of
New Jersey (or from any joint entity). While an individual company
owning multiple lease areas may apply for a single authorization to
conduct site characterization surveys across a combination of those
lease areas (see 85 FR 63508, October 8, 2020; 87 FR 13975, March 11,
2022), this is not applicable in this case to the leases owned by
Atlantic Shores and Orsted found off New Jersey. In the future, if
applicants wish to undertake this approach, NMFS is open to the receipt
of joint applications and additional discussions on joint actions.
Comment 4: COA asserted that NMFS is not using the best available
science with regards to the North Atlantic right whale (NARW)
population estimate and state that NMFS should be using the 336
estimate presented in the recent North Atlantic Right Whale Report Card
(<a href="https://www.narwc.org/report-cards.html">https://www.narwc.org/report-cards.html</a>).
Response: While NMFS agrees that the best available science should
be used for assessing NARW abundance estimates, we disagree that the
North Atlantic Right Whale Report Card (i.e., Pettis et al. (2022))
study represents the best available estimate for NARW abundance. Rather
the revised abundance estimate (368; 95 percent with a confidence
interval of 356-378) published by Pace (2021) (and subsequently
included in the 2021 draft Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>)), which was used in the proposed renewal IHA,
provides the most recent and best available estimate, and introduced
improvements to NMFS' right whale abundance model. Specifically, Pace
(2021) looked at a different way of characterizing annual estimates of
age-specific survival. NMFS considered all relevant information
regarding NARW, including the information cited by the commenters.
However, NMFS relies on the SAR. Recently (after publication of the
notice of proposed renewal IHA), NMFS has updated its species web page
to recognize the population estimate for NARWs is now below 350 animals
(<a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>). We
anticipate that this information will be presented in the draft 2022
SAR. We note that this change in abundance estimate would not change
the estimated take of NARWs or authorized take numbers, nor affect our
ability to make the required findings under the MMPA for Ocean Wind's
survey activities.
NMFS further notes that the commenters seem to be conflating the
phrase ``best available data'' with ``the most recent data.'' The MMPA
specifies that the ``best available data'' must be used, which does not
always mean the most recent. As is NMFS' prerogative, we referenced the
best available NARW abundance estimate of 368 from the draft 2021 SARs
as NMFS's determination of the best available data that we relied on in
our analysis. The Pace (2021) results strengthened the case for a
change in mean survival rates after 2010-2011, but did not
significantly change other current estimates (population size, number
of new animals, adult female survival) derived from the model.
Furthermore, NMFS notes that the SARs are peer reviewed by other
scientific review groups prior to being finalized and published and
that the North Atlantic Right Whale Report Card (Pettis et al., 2022)
does not undertake this process.
Comment 5: COA and LBI assert that Level A harassment is reasonably
likely to occur, and that this was not accounted for in NMFS' analysis.
Response: NMFS acknowledges the concerns brought up by the
commenters regarding the potential for Level A harassment of marine
mammals. However, no Level A harassment is expected to result, even in
the absence of mitigation, given the characteristics of the sources
planned for use. This is additionally supported by the required
mitigation and very small estimated Level A harassment zones.
Furthermore, the commenters do not provide any persuasive support for
the apparent contention that Level A harassment is a potential outcome
of these activities.
NMFS acknowledges that sufficient disruption of behavioral patterns
could theoretically, likely in connection with other stressors, result
in a reduction in fitness and ultimately injury or mortality. However,
such an outcome could likely result only from repeated disruption of
important behaviors at critical junctures, or sustained displacement
from important habitat with no associated compensatory ability. NMFS
has thoroughly analyzed the potential effects of noise exposure
resulting from the specified activity and, as discussed in the initial
notice of proposed IHA (see Potential Effects of Specified Activities
on Marine Mammals and Their Habitat) and in this notice (see Negligible
Impact Analysis and Determination), no such effects are
[[Page 29295]]
reasonably anticipated to occur as a result of this activity.
Therefore, no such outcome is expected as a result of these surveys.
NMFS considers this category of survey operations to be near de
minimis, with the potential for Level A harassment for any species to
be discountable. Please refer also to NMFS' response to comment 2.
Comment 6: COA and LBI do not agree with NMFS' negligible impact
and small numbers findings for NARWs. Additionally, LBI finds fault
with NMFS' approach to the small numbers determination, suggesting that
a limit of one-third of the most relevant population abundance estimate
is not appropriate and inconsistent with a prior court decision, citing
the NRDC v. Evans decision of October 31, 2002. LBI goes on to suggest
reevaluating the small numbers finding with specific regard to
endangered species like NARW.
Response: NMFS disagrees with the commenters' position regarding
the negligible impact analysis, and the commenters do not provide a
reasoned basis for finding that the effects of the specified activity
would be greater than negligible on any species or stock. The
Negligible Impact Analysis and Determination section of the initial and
proposed renewal IHA (86 FR 26465; 87 FR 21098) provides a detailed
qualitative discussion supporting NMFS' determination that any
anticipated impacts from this action would be negligible. The section
contains a number of factors that were considered by NMFS based on the
best available scientific data and why we concluded that impacts
resulting from the specified activity are not reasonably expected to,
or reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival.
With specific regard to NARW, we note that take is authorized for
only a very small percentage of the right whale population (see Table
1). We further note that Ocean Wind's previous monitoring report
(<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-llc-marine-site-characterization-surveys-new-jersey">https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-llc-marine-site-characterization-surveys-new-jersey</a>)
indicates that no right whales were taken during the previous activity.
However, the numbers of potential incidents of take or animals taken
are only part of an assessment and are not, alone, decisively
indicative of the degree of impact. In order to adequately evaluate the
effects of noise exposure at the population level, the total number of
take incidents must be further interpreted in context of relevant
biological and population parameters and other biological,
environmental, and anthropogenic factors and in a spatially and
temporally explicit manner. The effects to individuals of a ``take''
are not necessarily equal. Some take events represent exposures that
only just exceed a Level B harassment threshold, which would be
expected to result in lower-level impacts, while other exposures occur
at higher received levels and would typically be expected to have
comparatively greater potential impacts on an individual. Further,
responses to similar received levels may result in significantly
different impacts on an individual dependent upon the context of the
exposure or the status of the individuals (e.g., if it occurred in an
area and time where concentrated feeding was occurring, or to
individuals weakened by other effects). In this case, NMFS reiterates
that no such higher level takes are expected to occur. The maximum
anticipated Level B harassment zone is 141 m, a distance smaller than
the precautionary shutdown zone of 500 m. To the extent that any
exposure of NARW does occur, it would be expected to result in lower-
level impacts that are unlikely to result in significant or long-
lasting impacts to the exposed individual and, given the relatively
small amount of exposures expected to occur, it is unlikely that these
exposures would result in population-level impacts. NMFS acknowledges
that impacts of a similar degree on a proportion of the individuals in
a stock may have differing impacts to the stock based on its status,
i.e., smaller stocks may be less able to absorb deaths or reproductive
suppression and maintain similar growth rates as larger stocks.
However, even given the precarious status of the NARW, the low-level
nature of the impacts expected to occur for only a few individuals
means that the population status does not weigh meaningfully in NMFS'
consideration of population-level impacts. The commenters provide no
substantive reasoning to contradict this finding, and do not support
their assertions of effects greater than NMFS has assumed may occur.
Additionally, the initial IHA was subject to a section 7
consultation, with NMFS Greater Atlantic Regional Fisheries Office
(GARFO) as the consulting agency. NMFS GARFO determined that issuance
of the initial IHA to Ocean Wind was not likely to adversely affect
listed species or the critical habitat of any ESA-listed species or
result in the take of any marine mammals in violation of the ESA.
During the initial consultation, GARFO considered the potential for a
renewal. The proposed renewal IHA provides no new information about the
effects of the action, nor does it change the extent of effects of the
action, or any other basis to require re-initiation of the Opinion;
therefore, the incidental take statement issued for the initial IHA
remains valid.
NMFS disagrees with LBI's arguments on the topic of small numbers.
Although there is limited legislative history available to guide NMFS
and an apparent lack of biological underpinning to the concept, we have
worked to develop a reasoned approach to small numbers. NMFS explains
the concept of ``small numbers'' in recognition that there could also
be quantities of individuals taken that would correspond with
``medium'' and ``large'' numbers. As such, NMFS considers that one-
third of the most appropriate population abundance number--as compared
with the assumed number of individuals taken--is an appropriate limit
with regard to ``small numbers.'' This relative approach is consistent
with the statement from the legislative history that ``[small numbers]
is not capable of being expressed in absolute numerical limits'' (H.R.
Rep. No. 97-228, at 19 (September 16, 1981)), and relevant case law
(Center for Biological Diversity v. Salazar, 695 F.3d 893, 907 (9th
Cir. 2012) (holding that the U.S. Fish and Wildlife Service reasonably
interpreted ``small numbers'' by analyzing take in relative or
proportional terms)). In regards to LBI's suggestion that the one-third
number is inconsistent with prior caselaw, we note that LBI cited the
NRDC v. Evans decision of October 31, 2002 (232 F. Supp. 2d 1003),
which was related to the plaintiffs' motion for a preliminary
injunction. Ultimately, after parties' cross-motions for summary
judgment, the Evans court held that NMFS' regulatory definition of
small numbers (which NMFS did not apply here) improperly conflated the
small numbers and negligible impact issues. NRDC v. Evans, 279 F. Supp.
2d 1129 (N.D. Cal. 2003). Contrary to LBI's suggestion, the Evans court
expressly stated that it was not setting any numerical limit for small
numbers. NRDC v. Evans, 279 F. Supp. 2d at 1153. As for LBI's
suggestion to reconsider small numbers specifically for NARW, the
argument to establish a small numbers threshold on the basis of stock-
specific context is unnecessarily duplicative of the required
negligible impact finding, in which relevant biological and contextual
factors are considered in conjunction with the amount of take.
Comment 7: COA is concerned regarding the number of species that
could be impacted by the activities, as
[[Page 29296]]
well as a lack of baseline data being available for species (in
particular, harbor seals) in the area. In addition, COA has stated that
NMFS did not adequately address the potential for cumulative impacts to
bottlenose dolphins from Level B harassment over several years of
project activities.
Response: We appreciate the concern expressed by COA. NMFS utilizes
the best available science when analyzing which species may be impacted
by an applicant's proposed activities. Based on information found in
the scientific literature, as well as based on density models developed
by Duke University, all marine mammal species included in the proposed
renewal Federal Register Notice have some likelihood of occurring in
Ocean Wind's survey areas. Furthermore, the MMPA requires us to
evaluate the effects of the specified activities in consideration of
the best scientific evidence available and, if the necessary findings
are made, to issue the requested take authorization. The MMPA does not
allow us to delay decision making in hopes that additional information
may become available in the future. Furthermore, NMFS notes that it has
previously addressed discussions on cumulative impact analyses in
previous comments and references COA back to these specific responses
in this Notice. Regarding the lack of baseline information cited by
COA, with specific concern pointed out for harbor seals, NMFS points
towards two sources of information for marine mammal baseline
information: The Ocean/Wind Power Ecological Baseline Studies, January
2008-December 2009 completed by the New Jersey Department of
Environmental Protection in July 2010 (<a href="https://dspace.njstatelib.org/xmlui/handle/10929/68435">https://dspace.njstatelib.org/xmlui/handle/10929/68435</a>) and the Atlantic Marine Assessment Program
for Protected Species (AMAPPS; <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected">https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected</a>) with annual reports available from 2010 to 2020
(<a href="https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species">https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species</a>) that cover the areas
across the Atlantic Ocean. NMFS has duly considered this and all
available information. Based on the information presented, NMFS has
determined that no new information has become available, nor do the
commenters present additional information, that would change our
determinations since the publication of the proposed notice.
Comment 8: LBI suggested that the notice lacks sufficient technical
data, and referred to their February 2022 letter in which it requested
that NMFS explain why a 20 dB transmission loss coefficient was
applicable to the analysis or to present a new analysis using a 15 dB
transmission loss coefficient.
NMFS' response: NMFS first acknowledges that the notice of proposed
renewal IHA does not include the same level of technical information as
was presented in the initial notice of proposed IHA. This was
purposeful, as the information relied upon is the same as that
presented in the initial notice, and in the proposed renewal notice,
NMFS referred the reader to those initial notices, stating that the
notices provide important supporting information (e.g., initial
proposed IHA notice; 86 FR 17783; April 06, 2021).
In its February 2022 letter providing comments on the proposed
issuance of an IHA to Atlantic Shores, LBI states that NMFS' assumption
that use of a 20logR transmission loss factor (i.e., spherical
spreading) is inappropriate, and states that ``According to a number of
scientific sources, the use of a noise propagation loss coefficient of
20 dB per tenfold increase in distance represents ``spherical
spreading'' and is only appropriate in the ``near field'' where the
calculated horizontal distance is comparable with the water depth.''
NMFS disagrees with that comment, and reiterates its response below.
NMFS also notes that LBI did not cite any such scientific sources, so
NMFS must evaluate LBI's recommendations based only on its comment.
A major component of transmission loss is spreading loss and, from
a point source in a uniform medium, sound spreads outward as spherical
waves (``spherical spreading'') (Richardson et al., 1995). In water,
these conditions are often thought of as being related to deep water,
where more homogenous conditions may be likely. However, the
theoretical distinction between deep and shallow water is related more
to the wavelength of the sound relative to the water depth, versus to
water depth itself. Therefore, when the sound produced is in the
kilohertz range, where wavelength is relatively short, much of the
continental shelf may be considered ``deep'' for purposes of evaluating
likely propagation conditions.
As described in the initial notice of proposed IHA, the area of
water ensonified at or above the root mean square (RMS) 160 dB
threshold was calculated using a simple model of sound propagation
loss, which accounts for the loss of sound energy over increasing
range. Our use of the spherical spreading model (where propagation loss
= 20 * log [range]; such that there would be a 6-dB reduction in sound
level for each doubling of distance from the source) is a reasonable
approximation over the relatively short ranges involved. Even in
conditions where cylindrical spreading (where propagation loss = 10 *
log [range]; such that there would be a 3-dB reduction in sound level
for each doubling of distance from the source) may be appropriate
(e.g., non-homogenous conditions where sound may be trapped between the
surface and bottom), this effect does not begin at the source. In any
case, spreading is usually more or less spherical from the source out
to some distance, and then may transition to cylindrical (Richardson et
al., 1995). For these types of surveys, NMFS has determined that
spherical spreading is a reasonable assumption even in relatively
shallow waters (in an absolute sense) as the reflected energy from the
seafloor will be much weaker than the direct source and the volume
influenced by the reflected acoustic energy would be much smaller over
the relatively short ranges involved.
In support of its position, LBI cites several examples of use of
practical spreading (a useful real-world approximation of conditions
that may exist between the theoretical spreading modes of spherical and
cylindrical; 15logR) in asserting that this approach is also
appropriate here. However, these examples (U.S. Navy construction at
Newport, RI, and NOAA construction in Ketchikan, AK) are not relevant
to the activity at hand. First, these actions occur in even shallower
water (e.g., less than 10 m for Navy construction). Of greater
relevance to the action here, pile driving activity produces sound with
longer wavelengths than the sound produced by the acoustic sources
planned for use here. As noted above, a determination of appropriate
spreading loss is related to the ratio of wavelength to water depth
more than to a strict reading of water depth. NMFS indeed uses
practical spreading in typical coastal construction applications, but
for reasons described here, uses spherical spreading when evaluating
the effects of HRG surveys on the continental shelf. In addition, this
analysis is likely conservative for other reasons, e.g., the lowest
frequency was used for systems that are operated over a range of
frequencies and other sources of propagation loss are neglected.
NMFS has determined that spherical spreading is the most
appropriate form of propagation loss for these surveys
[[Page 29297]]
and has relied on this approach for past IHAs with similar equipment,
locations, and depths. Please refer back to the 2022 Atlantic Shores
HRG IHA (87 FR 24103; April 22, 2022), Garden State HRG IHA (83 FR
14417; April 4, 2018) and the 2019 Skipjack HRG IHA (84 FR 51118;
September 27, 2019) for examples. Prior to the issuance of these IHAs
(approximately 2018 and older), NMFS typically relied upon practical
spreading for these types of survey activities. However, as additional
scientific evidence became available, including numerous sound source
verification reports, NMFS determined that this approach was
inappropriately conservative and, since that time, as consistently used
spherical spreading. Furthermore, NMFS' User Spreadsheet tool assumes a
``safe distance'' methodology for mobile sources where propagation loss
is spherical spreading (20LogR) (<a href="https://media.fisheries.noaa.gov/2020-12/User_Manual%20_DEC_2020_508.pdf?null">https://media.fisheries.noaa.gov/2020-12/User_Manual%20_DEC_2020_508.pdf?null</a>), and NMFS calculator tool for
estimating isopleths to Level B harassment thresholds also incorporates
the use of spherical spreading.
Determinations
The survey activities planned by Ocean Wind are identical to those
analyzed in the initial IHA, including the planned number of days and
general location of activity (i.e., OCS-A 0498 and OCS-A 0532), as are
the method of taking and the effects of the action. Therefore, the
amount of authorized take is unchanged from that authorized in the
initial IHA. The potential effects of Ocean Wind's activities remain
limited to Level B harassment in the form of behavioral disturbance. No
serious injury or mortality of marine mammal is anticipated. In
analyzing the effects of the activities in the initial IHA, NMFS
determined that Ocean Wind's activities would have a negligible impact
on the affected species or stocks and that the authorized take numbers
of each species or stock were small relative to the relevant stocks
(e.g., less than one-third of the abundance of all stocks). The
mitigation measures and monitoring and reporting requirements as
described above are identical to the initial IHA.
NMFS has concluded that there is no new information suggesting that
our analysis or findings should change from those reached for the
initial IHA. This includes consideration of Ocean Wind's monitoring
report and changes in estimated abundances of the affected stocks.
Based on the information and analysis contained here and in the
referenced documents, NMFS has determined the following: (1) The
required mitigation measures will affect the least practicable impact
on marine mammal species or stocks and their habitat; (2) the
authorized takes will have a negligible impact on the affected marine
mammal species or stocks; (3) the authorized takes represent small
numbers of marine mammals relative to the affected stock abundances;
(4) Ocean Wind's activities will not have an unmitigable adverse impact
on taking for subsistence purposes as no relevant subsistence uses of
marine mammals are implicated by this action, and; (5) appropriate
monitoring and reporting requirements are included.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our final action (i.e., the issuance of an incidental
harassment authorization) 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 Renewal IHA qualifies to be categorically
excluded from further NEPA review.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.) requires that each Federal agency insure that any action
it authorizes, funds, or carries out is not likely to jeopardize the
continued existence of any endangered or threatened species or result
in the destruction or adverse modification of designated critical
habitat. To ensure ESA compliance for the issuance of IHAs, NMFS
consults internally, in this case with the NMFS Greater Atlantic
Regional Fisheries Office (GARFO), whenever we propose to authorize
take for endangered or threatened species.
The NMFS Office of Protected Resources is authorizing the
incidental take of four species of marine mammals that are listed under
the ESA: The North Atlantic right, fin, sei and sperm whales. We
requested initiation of consultation under Section 7 of the ESA with
NMFS GARFO on February 04, 2021, for the issuance of the initial IHA.
NMFS GARFO determined that issuance of the IHA to Ocean Wind is not
likely to adversely affect the North Atlantic right, fin, sei, and
sperm whale or the critical habitat of any ESA-listed species or result
in the take of any marine mammals in violation of the ESA, and at this
time considered the potential for a renewal. The Renewal IHA provides
no new information about the effects of the action, nor does it change
the extent of effects of the action, or any other basis to require re-
initiation of the Opinion; therefore, the incidental take statement
issued for the initial IHA remains valid.
Renewal
NMFS has issued a Renewal IHA to Ocean Wind for the take of marine
mammals incidental to conducting marine site characterization surveys
offshore of New Jersey, from May 10, 2022 to May 09, 2023.
Dated: May 10, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-10389 Filed 5-12-22; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on May 13, 2022.
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