Notice2022-10630
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off of Delaware
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 18, 2022
Effective
May 10, 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 incidental harassment authorization (IHA) to Orsted Wind Power North America, LLC (Orsted), and its designees, Garden State Offshore Energy, LLC (Garden State) and Skipjack Offshore Energy, LLC (Skipjack), to incidentally harass marine mammals during marine site characterization surveys off the coast of Delaware and along potential export cable routes to landfall locations in Delaware and New Jersey.
Full Text
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<title>Federal Register, Volume 87 Issue 96 (Wednesday, May 18, 2022)</title>
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[Federal Register Volume 87, Number 96 (Wednesday, May 18, 2022)]
[Notices]
[Pages 30182-30205]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-10630]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB975]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Off of Delaware
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 incidental harassment authorization (IHA) to
Orsted Wind Power North America, LLC (Orsted), and its designees,
Garden State Offshore Energy, LLC (Garden State) and Skipjack Offshore
Energy, LLC (Skipjack), to incidentally harass marine mammals during
marine site characterization surveys off the coast of Delaware and
along potential export cable routes to landfall locations in Delaware
and New Jersey.
DATES: This Authorization is effective from May 10, 2022 through May 9,
2023.
FOR FURTHER INFORMATION CONTACT: Kim Corcoran, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as a list of the references cited in
this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental harassment 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 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.
[[Page 30183]]
Summary of Request
On October 1, 2021, NMFS received a request from Orsted on behalf
of Garden State and Skipjack, both subsidiaries of Orsted, for an IHA
to take marine mammals incidental to marine site characterization
surveys off the coast of Delaware. Following NMFS' review of the draft
application, a revised version was submitted on November 24, 2021. The
application was deemed adequate and complete on February 11, 2022.
Orsted's request is for take of a small number of 16 species of marine
mammals, by Level B harassment only. Neither Orsted nor NMFS expects
serious injury or mortality to result from this activity and,
therefore, an IHA is appropriate.
NMFS previously issued IHAs to Garden State (86 FR 33664; June 25,
2021) and Skipjack (86 FR 18943; April 12, 2021) for related work.
Garden State's survey was effective until April 4, 2022 whereas work is
still ongoing for Skipjack until their effectiveness end date of June
10, 2022. Orsted plans to survey the combined survey area of the
aforementioned projects, including the same two Lease Areas currently
being surveyed under those IHAs (see Figure 1).
Description of Activity
Overview
As part of their overall marine site characterization survey
operations, Orsted plans to conduct high-resolution geophysical (HRG)
and geotechnical surveys in Lease Areas OCS-A 0482 and 0519 (Lease
Areas), and the associated export cable route (ECR) areas off the coast
of Delaware (Figure 1).
The purpose of the marine site characterization surveys is to
collect data concerning seabed (geophysical, geotechnical, and
geohazard), ecological, and archeological conditions within the
footprint of offshore wind facility development. Surveys are also
conducted to support engineering design and to map Unexploded Ordnance
(UXO). Underwater sound resulting from the site characterization survey
activities, specifically HRG surveys, has the potential to result in
incidental take of marine mammals in the form of Level B harassment.
Table 1 identifies representative survey equipment with the expected
potential to result in take of marine mammals.
Dates and Duration
The site characterization surveys are anticipated to occur between
May 10, 2022 and May 9, 2023. The exact dates have not yet been
established. The activity is expected to include up to 350 survey days
over the course of a single year (``survey day'' defined as a 24-hour
(hr) activity period in which the assumed number of line kilometers
(km) are surveyed). The number of anticipated survey days was
calculated as the number of days needed to reach the overall level of
effort required to meet survey objectives assuming any single vessel
travels 4 knots (kn) (7.4 kilometers per hour (km/hr) and surveys
cover, on average, 70 line km per 24-hr period. The applicant assumes
the use of sparker systems, which produce the largest estimated
harassment isopleths, on all survey days (see Table 1).
Specific Geographic Region
The activities will occur within the survey area which includes the
Lease Areas and potential ECRs to landfall locations in Delaware, as
shown in Figure 1. This survey area combines the survey areas
associated with the previously issued Garden State (86 FR 33664; June
25, 2021) and Skipjack (86 FR 18943; April 12, 2021) IHAs. The combined
Lease Areas (Garden State Lease Area OCS-A-0482 and Skipjack Lease Area
OCS-A-0519) are comprised of approximately 568 square kilometers
(km\2\) within the WEA of BOEM's Mid-Atlantic planning area (see Figure
1). Water depths in the Lease Area range from approximately 15 to 40
meters (m).
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[[Page 30184]]
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Detailed Description of Specific Activity
Orsted plans to conduct HRG survey operations, including multibeam
depth sounding, seafloor imaging, and shallow and medium penetration
sub-bottom profiling. The HRG surveys will include the use of seafloor
mapping equipment with operating frequencies above 180 kilohertz (kHz)
(e.g., side-scan sonar (SSS), multibeam echosounders (MBES));
magnetometers and gradiometers that have no acoustic output; and
shallow- to medium-penetration sub-bottom profiling (SBP) equipment
(e.g., parametric sonars, compressed high-intensity radiated pulses
(CHIRPs), boomers, sparkers) with operating frequencies below 180
kilohertz (kHz). No deep-penetration SBP surveys (e.g., airgun or
bubble gun surveys) will be conducted. Survey equipment will be
deployed from as many as three vessels during the site characterization
activities within the Lease area and ECR area.
Orsted assumes that vessels would generally conduct approximately
70 line km of survey effort per 24-hour operation period. On this basis
a total of 350 vessel survey days are expected within Lease Areas OCS-A
0482, OCS-A 0519, and the associated ECR area. Water depths in the
Lease Areas range from approximately 15 to 40 meters (m). Water depths
within the ECR area
[[Page 30185]]
extend from the shoreline to approximately 40 m deep.
Acoustic sources planned for use during HRG survey activities by
Orsted include the following. Survey equipment can either be towed,
pole mounted, hull-mounted on the vessel (or on an ROV as noted above),
or mounted on other survey equipment (e.g., transponders): (Table 1):
<bullet> Shallow penetration, non-impulsive, intermittent, mobile,
non-parametric SBPs (i.e., CHIRP SBPs) are used to map the near-surface
stratigraphy (top 0 to 10 m) of sediment below seabed. A CHIRP system
emits sonar pulses that increase in frequency from approximately 2 to
20 kHz over time. The frequency range can be adjusted to meet project
variables. These sources are typically mounted on a pole, either over
the side of the vessel or through a moon pool in the bottom of the
hull. The operational configuration and relatively narrow beamwidth of
these sources reduce the likelihood that an animal would be exposed to
the signal.
<bullet> Medium penetration SBPs (boomers) are used to map deeper
subsurface stratigraphy as needed. A boomer is a broad-band sound
source operating in the 3.5 Hz to 10 kHz frequency range. This system
is commonly mounted on a sled and towed behind the vessel. Boomers are
impulsive and mobile sources. The sound levels produced by this
equipment type have the potential to result in Level B harassment of
marine mammals; and
<bullet> Medium penetration SBPs (sparkers) are used to map deeper
subsurface stratigraphy as need. Sparkers create acoustic pulses from
50 Hz to 4 kHz omnidirectionally from the source, and are considered to
be impulsive and mobile sources. Sparkers are typically towed behind
the vessel with adjacent hydrophone arrays to receive the return
signals. The sound levels produced by this equipment type have the
potential to result in Level B harassment of marine mammals.
Operation of other survey equipment types is not reasonably
expected to result in take of marine mammals and will not be discussed
further beyond the brief summaries provided in the notice of proposed
IHA (87 FR 15922; March 21, 2022).
Table 1 identifies representative survey equipment with the
expected potential to result in exposure of marine mammals and thus
potentially result in take. The make and model of the listed
geophysical equipment may vary depending on availability and the final
equipment choices will vary depending upon the final survey design,
vessel availability, and survey contractor selection.
[[Page 30186]]
[GRAPHIC] [TIFF OMITTED] TN18MY22.003
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[[Page 30187]]
Mitigation, monitoring, and reporting measures are described in
detail later in this document (please see Mitigation and Monitoring and
Reporting).
Comments and Responses
A notice of NMFS's proposal to issue an IHA to Orsted was published
in the Federal Register on March 21, 2022 (87 FR 15922). That proposed
notice described, in detail, Orsted's activities, the marine mammal
species that may be affected by the activities, and the anticipated
effects on marine mammals. In that notice, we requested public input on
the request for authorization described therein, our analyses, the
proposed authorization, and any other aspect of the notice of proposed
IHA, and requested that interested persons submit relevant information,
suggestions, and comments. This proposed notice was available for a 30-
day public comment period.
During the 30-day public comment period, NMFS received comments
from the Delaware Department of Resources and Environmental Control
(DNREC), Oceana, and the Responsible Offshore Development Alliance
(RODA). A few comments specifically addressed concerns regarding
construction of a wind energy facility itself, which is outside the
scope of NMFS' action considered herein. We do not specifically address
those comments in further detail. All substantive comments, and NMFS'
responses, are provided below, and the letters are available online at:
<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-marine-site">https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-marine-site</a>. Please see the letters
for full detail and rationale for the comments.
Comment 1: DNREC recommends harp seals (Pagophilus groenlandicus)
and hooded seals (Cystophora cristata) also be included within the list
of potentially impacted species. DNREC states that it would be
beneficial to include all species occurring in the area, regardless of
the infrequency of their occurrence.
Response: NMFS agrees with DNREC that the occurrence of all species
occurring in the survey area should be evaluated in our analysis. NMFS
has evaluated the occurrence of harp seals and has included additional
information on their potential occurrence offshore of Delaware in the
Description of Marine Mammals in the Area of Specified Activities
section below. However, based on the best available information,
including information on local sightings, and the temporal and spatial
occurrence of the species, the likelihood of a harp seal being
encountered in the survey area is discountable, and NMFS is not
authorizing the take of harp seals for Orsted's survey.
NMFS has further evaluated available information regarding the
occurrence of hooded seals in the survey area. The limited data
available support a conclusion that hooded seals occur rarely and
irregularly in the survey area. DNREC did not provide any scientific
data to support regular occurrence of hooded seals in the region and to
quantify the potential for Level B harassment of hooded seals to occur
and NMFS considers take of this species to be highly unlikely. Hooded
seals are found at high latitudes in the North Atlantic and Arctic
Oceans, breeding in ice packed areas. They spend a significant amount
of time in deep waters, rarely hauling out along the coasts. Hooded
seals are primarily found in Canada, although NMFS does acknowledge
that a small number of individuals are increasingly being seen along
the Atlantic coast. Due to their tendency to stay far offshore and as
very few sightings have been documented along the Delaware coast, NMFS'
evaluation has concluded that hooded seals are unlikely to be found
within the survey area and are not discussed further in this document.
Comment 2: Oceana recommended that NMFS should require passive
acoustic monitoring (PAM) at all times to maximize the probability of
detection for North Atlantic right whales (NARWs), as well as other
species and stocks. DNREC also expressed support for the use of PAM in
combination with monitoring by protected species observers (PSOs),
especially during nighttime operations.
Response: The commenters do not explain why they expect that PAM
would be effective in detecting vocalizing mysticetes, nor does NMFS
agree that this measure is warranted, as it is not expected to be
effective for use in detecting the species of concern. It is generally
accepted that, even in the absence of additional acoustic sources,
using a towed passive acoustic sensor to detect baleen whales
(including NARWs) is not typically effective because the noise from the
vessel, the flow noise, and the cable noise are in the same frequency
band and will mask the vast majority of baleen whale calls. Vessels
produce low-frequency noise, primarily through propeller cavitation,
with main energy in the 5-300 Hertz (Hz) frequency range. Source levels
range from about 140 to 195 decibel (dB) re 1 [mu]Pa (micropascal) at 1
m (NRC, 2003; Hildebrand, 2009), depending on factors such as ship
type, load, and speed, and ship hull and propeller design. Studies of
vessel noise show that it appears to increase background noise levels
in the 71-224 Hz range by 10-13 dB (Hatch et al., 2012; McKenna et al.,
2012; Rolland et al., 2012). PAM systems employ hydrophones towed in
streamer cables approximately 500 m behind a vessel. Noise from water
flow around the cables and from strumming of the cables themselves is
also low-frequency and typically masks signals in the same range.
Experienced PAM operators participating in a recent workshop (Thode et
al., 2017) emphasized that a PAM operation could easily report no
acoustic encounters, depending on species present, simply because
background noise levels rendered any acoustic detection impossible. The
same workshop report stated that a typical eight-element array towed
500 m behind a vessel could be expected to detect delphinids, sperm
whales, and beaked whales at the required range, but not baleen whales,
due to expected background noise levels (including seismic noise,
vessel noise, and flow noise).
There are several additional reasons why we do not agree that use
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM
can be an important tool for augmenting detection capabilities in
certain circumstances, its utility in further reducing impact during
HRG survey activities is limited. First, for this activity, the area
expected to be ensonified above the Level B harassment threshold is
relatively small (a maximum of 141 m); this reflects the fact that, to
start with, the source level is comparatively low and the intensity of
any resulting impacts would be lower level and, further, it means that
inasmuch as PAM will only detect a portion of any animals exposed
within a zone, the overall probability of PAM detecting an animal in
the harassment zone is low. Together these factors support the limited
value of PAM for use in reducing take with smaller zones. PAM is only
capable of detecting animals that are actively vocalizing, while many
marine mammal species vocalize infrequently or during certain
activities, which means that only a subset of the animals within the
range of the PAM would be detected (and potentially have reduced
impacts). Additionally, localization and range detection can be
challenging under certain scenarios. For example, odontocetes are fast
moving and often travel in large or dispersed groups which makes
localization difficult.
Given that the effects to marine mammals from the types of surveys
authorized in this IHA are expected to be limited to low level
behavioral
[[Page 30188]]
harassment even in the absence of mitigation, the limited additional
benefit anticipated by adding this detection method (especially for
NARWs and other low frequency cetaceans, species for which PAM has
limited efficacy), and the cost and impracticability of implementing a
full-time PAM program, we have determined the current requirements for
visual monitoring are sufficient to ensure the least practicable
adverse impact on the affected species or stocks and their habitat.
NMFS has previously provided discussions on why PAM is not a required
monitoring measure during HRG survey IHAs in past Federal Register
notices (86 FR 21289, April 22, 2021 and 87 FR 13975, March 11, 2022
for examples).
Regarding monitoring for species that may be present yet go
unobserved, NMFS recognizes that visual detection based mitigation
approaches are not 100 percent effective. Animals are missed because
they are underwater (availability bias) or because they are available
to be seen, but are missed by observers (perception and detection
biases) (e.g., Marsh and Sinclair, 1989). However, visual observation
remains one of the best available methods for marine mammal detection.
Although it is likely that some marine mammals may be present yet
unobserved within the harassment zone, all expected take of marine
mammals has been appropriately authorized. For mysticete species in
general, it is unlikely that an individual would occur within the
estimated 141 m harassment zone and remain undetected. For NARW in
particular, the required Exclusion Zone is 500 m and, therefore, it is
even less likely that an individual would approach the harassment zone
undetected.
Comment 3: Oceana objects to NMFS' renewal process regarding the
extension of any 1-year IHA with a truncated 15-day public comment
period, and suggested an additional 30-day public comment period is
necessary for any renewal request.
Response: NMFS' IHA renewal process meets all statutory
requirements. In prior responses to comments about IHA renewals (e.g.,
84 FR 52464; October 2, 2019 and 85 FR 53342, August 28, 2020), NMFS
has explained how the renewal process, as implemented, is consistent
with the statutory requirements contained in section 101(a)(5)(D) of
the MMPA, and, further, promotes NMFS' goals of improving conservation
of marine mammals and increasing efficiency in the MMPA compliance
process. Therefore, we intend to continue implementing the renewal
process.
The notice of the proposed IHA published in the Federal Register on
January 27, 2022 (87 FR 4200) made clear that the agency was seeking
comment on the proposed IHA and the potential issuance of a renewal for
this survey. Because any renewal is limited to another year of
identical or nearly identical activities in the same location or the
same activities that were not completed within the 1-year period of the
initial IHA, reviewers have the information needed to effectively
comment on both the immediate proposed IHA and a possible 1-year
renewal, should the IHA holder choose to request one in the coming
months.
While there would be additional documents submitted with a renewal
request, for a qualifying renewal these would be limited to
documentation that NMFS would make available and use to verify that the
activities are identical to those in the initial IHA, are nearly
identical such that the changes would have either no effect on impacts
to marine mammals or decrease those impacts, or are a subset of
activities already analyzed and authorized but not completed under the
initial IHA. NMFS would also need to confirm, among other things, that
the activities would occur in the same location; involve the same
species and stocks; provide for continuation of the same mitigation,
monitoring, and reporting requirements; and that no new information has
been received that would alter the prior analysis. The renewal request
would also contain a preliminary monitoring report, in order to verify
that effects from the activities do not indicate impacts of a scale or
nature not previously analyzed. The additional 15-day public comment
period provides the public an opportunity to review these few
documents, provide any additional pertinent information and comment on
whether they think the criteria for a renewal have been met. Between
the initial 30-day comment period on these same activities and the
additional 15 days, the total comment period for a renewal is 45 days.
In addition to the IHA renewal process being consistent with all
requirements under section 101(a)(5)(D), it is also consistent with
Congress' intent for issuance of IHAs to the extent reflected in
statements in the legislative history of the MMPA. Through the
provision for renewals in the regulations, description of the process
and express invitation to comment on specific potential renewals in the
Request for Public Comments section of each proposed IHA, the
description of the process on NMFS' website, further elaboration on the
process through responses to comments such as these, posting of
substantive documents on the agency's website, and provision of 30 or
45 days for public review and comment on all proposed initial IHAs and
Renewals respectively, NMFS has ensured that the public is ``invited
and encouraged to participate fully in the agency's decision-making
process'', as Congress intended.
Comment 4: Oceana remarked that NMFS must utilize the best
available science, and further suggests that NMFS has not done so.
Oceana specifically asserted that NMFS is not using the best available
science with regards to the NARW population estimate and states 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>). Additionally, Oceana states that NMFS is not using the
best available science with regard to NARW recent habitat usage
patterns and should use up to date seasonality information that may
differ from the March-April and November-December migration period
cited in the notice, and that NMFS should fully consider the use of the
area on the health and fitness of NARWs. Similarly, RODA urges NMFS to
use the best available science including the most comprehensive models
for estimating marine mammal take and developing robust mitigation
measures.
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 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 commenters. However,
NMFS relies on the SAR. Between the time of publication of the notice
of proposed IHA and issuing this
[[Page 30189]]
IHA, NMFS updated its species web page to recognize the population
estimate for NARWs as 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 Orsted'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.
The commenters also noted their concern regarding NARW habitat
usage and seasonality, stating that NMFS was not appropriately
considering relevant information on this topic. While Orsted's survey
specifically intersects migratory habitat for NARWs, the year-round
``core'' NARW foraging habitat is located much further north in the
southern area of Martha's Vineyard and Nantucket Islands where both
visual and acoustic detections of NARWs indicate a nearly year-round
presence (Oleson et al., 2020). NMFS notes that prey for NARWs are
mobile and broadly distributed throughout the survey area; therefore,
NARW foraging efforts are not likely to be disturbed given the location
of these planned activities in relation to the broader area that NARWs
migrate through and northern areas where NARWs primarily forage. There
is ample foraging habitat further north of this survey area that will
not be ensonified by the acoustic sources used by Orsted, such as the
Great South Channel and Georges Bank Shelf Break feeding biologically
important area (BIA). Furthermore, and as discussed in the proposed
notice, the spatial acoustic footprint of the survey is very small
relative to the spatial extent of the available foraging habitat.
Lastly, as we stated in the proposed notice, any impacts to marine
mammals are expected to be temporary and minor, given the relative size
of the survey area compared to the overall migratory route leading to
foraging habitat (which is not affected by the specified activity).
Comparatively, the Lease Area is approximately 568 km\2\ and the NARW
migratory BIA is 269,448 km\2\. Because of this, and in context of the
minor, low-level nature of the impacts expected to result from the
planned survey, such impacts are not expected to result in disruption
to biologically important behaviors.
Comment 5: Oceana noted that chronic stressors are an emerging
concern for NARW conservation and recovery, and state that chronic
stress may result in stunted growth and energetic effects for NARWs.
Oceana suggested that NMFS has not fully considered both the use of the
area and the effects of chronic stressors on the health and fitness of
NARWs, as disturbance responses to NARWs could lead to chronic stress
or habitat displacement, leading to an overall decline in their health
and fitness.
Response: NMFS agrees with Oceana that 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 response, and
auditory masking. However, NMFS does not expect that the generally
short-term, intermittent, and transitory marine site characterization
survey activities planned by Orsted would create conditions of acute or
chronic acoustic exposure leading to long-term physiological stress
responses in marine mammals. NMFS has also prescribed a robust suite of
mitigation measures, including extended distance shutdowns for NARW,
that are expected to further reduce the duration and intensity of
acoustic exposure, while limiting the potential severity of any
possible behavioral disruption. The potential for chronic stress was
evaluated in making the determination presented in NMFS's negligible
impact analyses. Because NARW's generally use this location in a
transitory manner, specifically for migration, any potential impacts
from these surveys are lessened for other behaviors due to the brief
periods where exposure is possible. In context of these expected low-
level impacts, which are not expected to meaningfully affect important
behavior, we also refer again to the large size of the migratory
corridor (BIA of 269,448 km\2\) compared with the survey area (568
km\2\). Thus, the transitory nature of NARWs at this location means it
is unlikely for any exposure to cause chronic effects as Orsted's
planned survey area and ensonified zones are much smaller than the
overall migratory corridor. Because of this, NMFS does not expect acute
or cumulative stress to be a detrimental factor to NARWs from Orsted's
described survey activities.
Lastly, NMFS disagrees that the effects of Orsted's survey may
contribute to stunted growth rates as suggested by Oceana's comments.
The activities associated with Orsted's survey are outside the scope of
activities described in the Steward et al. (2021) paper and NMFS does
not expect impacts such as these to result from Orsted's described
survey activities.
Comment 6: Oceana asserted that NMFS must fully consider the
discrete effects of each activity and the cumulative effects of the
suite of approved, proposed and potential activities on marine mammals
and NARWs in particular and ensure that the cumulative effects are not
excessive before issuing or renewing an IHA. RODA similarly expressed
concern regarding analysis 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
[[Page 30190]]
section 101(a)(5) concerning negligible impact. In this case, this IHA,
as well as other IHAs currently in effect or proposed within the
specified geographic region, are appropriately considered an unrelated
activity relative to the others. The IHAs are unrelated in the sense
that they are discrete actions under section 101(a)(5)(D), issued to
discrete applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of the specified activity or
class of activities that can be expected to result in incidental taking
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, Orsted was the applicant for the IHA, and we are
responding to the specified activity as described in that application
(and making the necessary findings on that basis).
Through the response to public comments in the 1989 implementing
regulations, NMFS also indicated (1) that we would consider cumulative
effects that are reasonably foreseeable when preparing a NEPA analysis,
and (2) that reasonably foreseeable cumulative effects would also be
considered under section 7 of the ESA for ESA-listed species, as
appropriate. Accordingly, NMFS has written Environmental Assessments
(EA) that addressed cumulative impacts related to substantially similar
activities, in similar locations, e.g., the 2017 Ocean Wind, LLC EA for
site characterization surveys off New Jersey; the 2018 Deepwater Wind
EA for survey activities offshore Delaware, Massachusetts, and Rhode
Island; the 2019 Avangrid EA for survey activities offshore North
Carolina and Virginia; and the 2019 Orsted EA for survey activities
offshore southern New England. Cumulative impacts regarding issuance of
IHAs for site characterization survey activities such as those planned
by Orsted have been adequately addressed under NEPA in prior
environmental analyses that support NMFS' determination that this
action is appropriately categorically excluded from further NEPA
analysis. NMFS independently evaluated the use of a categorical
exclusion for issuance of Orsted' 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
Garden State's 2021 IHA and Skipjack's 2021 IHA (86 FR 33664; June 25,
2021 and 86 FR 18943; April 12, 2021), which are substantially similar
to those planned by Orsted, and its subsidiaries Skipjack and Garden
State, under this current IHA request. This Biological Opinion
determined that NMFS' issuance of IHAs for site characterization survey
activities associated with leasing, individually and cumulatively, are
not likely to adversely affect listed marine mammals. NMFS notes, that
while issuance of this IHA is covered under a different consultation,
this BiOp remains valid and the portions of the surveys currently
planned by Orsted from 2022 to 2023 that are within the geographic
scope of the 2013 BiOp (i.e., potions in NJ) could have fallen under
the scope of those analyzed previously.
Comment 7: RODA states that, to their knowledge, there are no
resources easily accessible to the public to understand what
authorizations are required for each of these activities (pre-
construction surveys, construction, operations, monitoring surveys,
etc.). RODA recommends that NMFS improve the transparency of this
process and move away from what it refers to as a ``segmented phase-by-
phase and project-by-project approach to IHAs.''
Response: The MMPA, and its implementing regulations, allows, upon
request, the incidental take of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographic region. NMFS responds to these
requests by authorizing the incidental take of marine mammals if it is
found that the taking would be of small numbers, have no more than a
``negligible impact' on the marine mammal species or stock, and not
have an ``unmitigable adverse impact'' on the availability of the
species or stock for subsistence use. NMFS emphasizes that an IHA does
not authorize the activity itself but authorizes the take of marine
mammals incidental to the ``specified activity'' for which incidental
take coverage is being sought. In this case, NMFS is responding to the
applicant, Orsted, and the specified activity described in their
application and making necessary findings on the basis of what was
provided in their application. The authorization of Orsted's activity
(note, not the authorization of takes incidental to that activity) is
not within the jurisdiction of NMFS. NMFS refers RODA to the Permitting
Dashboard for Federal Infrastructure Projects for further information
on timelines and proposed authorizations planned for application for
each of these activities: <a href="https://www.permits.performance.gov/">https://www.permits.performance.gov/</a>.
NMFS is required to consider applications upon request. To date,
NMFS has not received any joint applications. 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. 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 8: RODA expressed concern from fishermen regarding the
process for the authorization of marine mammal harassment takes in OSW
activities in contrast to regulations for marine mammal take applied to
the fishing industry.
Response: As required under the Marine Mammal Protection Act for
activities other than commercial fisheries and detailed elsewhere in
this notice, NMFS assessed the impacts of site characterization survey
activities on marine mammals and their habitat and made the necessary
findings to issue this IHA to Orsted. NMFS notes that the impacts of
commercial fisheries on marine mammals and incidental take for said
fishing activities are managed pursuant to the requirements of a
different section of the MMPA (section 118) and, therefore, that these
concerns are outside the scope of NMFS' action considered herein.
Comment 9: Oceana states that NMFS must make an assessment of which
activities, technologies and strategies are truly necessary to provide
information to inform development of Orsted's offshore wind project and
which are not critical, asserting that NMFS should prescribe the
appropriate survey techniques. In general, Oceana stated that NMFS must
require that all IHA applicants minimize the impacts of underwater
noise to the fullest extent feasible, including through the use of best
available technology and methods
[[Page 30191]]
to minimize sound levels from geophysical surveys.
Response: The MMPA requires that an IHA include measures that will
effect the least practicable adverse impact on the affected species and
stocks and, in practice, NMFS agrees that the IHA should include
conditions for the survey activities that will first avoid adverse
effects on NARWs in and around the survey site, where practicable, and
then minimize the effects that cannot be avoided. NMFS has determined
that the IHA meets this requirement to effect the least practicable
adverse impact. Oceana does not make any specific recommendations of
measures to add to the IHA. As part of the analysis for all marine site
characterization survey IHAs, NMFS evaluated the effects expected as a
result of the specified activity, made the necessary findings, and
prescribed mitigation requirements sufficient to achieve the least
practicable adverse impact on the affected species and stocks of marine
mammals. It is not within NMFS' purview to make judgements regarding
what may be appropriate techniques or technologies for an operator's
survey objectives.
Comment 10: Oceana suggests that PSOs complement their survey
efforts using additional technologies, such as infrared detection
devices when in low-light conditions.
Response: NMFS agrees with Oceana regarding this suggestion and a
requirement to utilize a thermal (infrared) device during low-light
conditions was included in the proposed Federal Register notice and
also as a requirement of the issued IHA.
Comment 11: Oceana recommended that NMFS restrict all vessels of
all sizes associated with the proposed survey activities to speeds less
than 10 kn (18.5 km/hr) at all times due to the risk of vessel strikes
to NARWs and other large whales.
Response: While NMFS acknowledges that vessel strikes can result in
injury or mortality, we have analyzed the potential for ship strike
resulting from Orsted's activity and have determined that based on the
nature of the activity and the required mitigation measures specific to
vessel strike avoidance included in the IHA, potential for vessel
strike is so low as to be discountable. These mitigation measures, most
of which were included in the proposed IHA and all of which are
required in the final IHA, include: A requirement that all vessel
operators comply with 10 kn (18.5 km/hr) or less speed restrictions in
any seasonal management areas (SMA), dynamic management areas (DMA) or
Slow Zone while underway, and check daily for information regarding the
establishment of mandatory or voluntary vessel strike avoidance areas
(SMAs, DMAs, Slow Zones) and information regarding NARW sighting
locations; a requirement that all vessels greater than or equal to 19.8
m in overall length operating from November 1 through April 30 operate
at speeds of 10 kn (18.5 km/hr) or less; a requirement that all vessel
operators reduce vessel speed to 10 kn (18.5 km/hr) or less when any
large whale, any mother/calf pairs, pods, or large assemblages of non-
delphinid cetaceans are observed near the vessel; a requirement that
all survey vessels maintain a separation distance of 500 m or greater
from any ESA-listed whales or other unidentified large marine mammals
visible at the surface while underway; a requirement that, if underway,
vessels must steer a course away from any sighted ESA-listed whale at
10 kn (18.5 km/hr) or less until 500 m minimum separation distance has
been established; a requirement that, if an ESA-listed whale is sighted
in a vessel's path, or within 500 m of an underway vessel, the underway
vessel must reduce speed and shift the engine to neutral; a requirement
that all vessels underway must maintain a minimum separation distance
of 100 m from all non-ESA-listed baleen whales; and a requirement that
all vessels underway must, to the maximum extent practicable, attempt
to maintain a minimum separation distance of 50 m from all other marine
mammals, with an understanding that at times this may not be possible
(e.g., for animals that approach the vessel). We have determined that
the ship strike avoidance measures in the IHA are sufficient to ensure
the least practicable adverse impact on species or stocks and their
habitat. Furthermore, no documented vessel strikes have occurred for
any marine site characterization surveys which were issued IHAs from
NMFS during the survey activities themselves or while transiting to and
from survey sites.
Comment 12: Oceana suggests that NMFS require vessels maintain a
separation distance of at least 500 m from NARWs at all times.
Response: NMFS agrees with Oceana regarding this suggestion and a
requirement to maintain a separation distance of at least 500 m from
NARWs at all times was included in the proposed Federal Register notice
and was included as a requirement in the issued IHA.
Comment 13: Oceana recommended that the IHA should require all
vessels supporting site characterization to be equipped with and using
Class A Automatic Identification System (AIS) devices at all times
while on the water. Oceana suggested this requirement should apply to
all vessels, regardless of size, associated with the survey.
Response: NMFS is generally supportive of the idea that vessels
involved with survey activities be equipped with and using Class A
Automatic Identification System (devices) at all times while on the
water. Indeed, there is a precedent for NMFS requiring such a
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268,
December 7, 2018); however, these activities carried the potential for
much more significant impacts than the marine site characterization
surveys to be carried out by Orsted, 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.
Comment 14: Oceana asserts that the IHA must include requirements
to hold all vessels associated with site characterization surveys
accountable to the IHA requirements, including vessels owned by the
developer, contractors, employees, and others regardless of ownership,
operator, and contract. They state that exceptions and exemptions will
create enforcement uncertainty and incentives to evade regulations
through reclassification and redesignation. They recommend that NMFS
simplify this by requiring all vessels to abide by the same
requirements, regardless of size, ownership, function, contract or
other specifics.
Response: NMFS agrees with Oceana and required these measures in
the proposed IHA and final IHA. The IHA requires that a copy of the IHA
must be in the possession of Orsted, the vessel operators, the lead
PSO, and any other relevant designees of Orsted operating under the
authority of this IHA. The IHA also states that Orsted must ensure that
the vessel operator and other relevant vessel personnel, including the
PSO team, are briefed on all responsibilities, communication
procedures, marine mammal monitoring protocols, operational procedures,
and IHA requirements prior to the start of survey activity, and when
relevant new personnel join the survey operations.
Comment 15: Oceana stated that the IHA must include a requirement
for all phases of the Orsted site characterization to subscribe to the
highest level of transparency, including
[[Page 30192]]
frequent reporting to federal agencies, requirements to report all
visual and acoustic detections of NARWs and any dead, injured, or
entangled marine mammals to NMFS or the Coast Guard as soon as possible
and no later than the end of the PSO shift. Oceana states that to
foster stakeholder relationships and allow public engagement and
oversight of the permitting, the IHA should require all reports and
data to be accessible on a publicly available website.
Response: NMFS agrees with the need for reporting and indeed, the
MMPA calls for IHAs to incorporate reporting requirements. As included
in the proposed IHA, the final IHA includes requirements for reporting
that supports Oceana's recommendations. Orsted is required to submit a
monitoring report to NMFS within 90 days after completion of survey
activities that fully documents the methods and monitoring protocols,
summarizes the data recorded during monitoring, and describes, assesses
and compares the effectiveness of monitoring and mitigation measures.
PSO datasheets or raw sightings data must also be provided with the
draft and final monitoring report. Further the draft IHA and final IHA
stipulate that if a NARW is observed at any time by any survey vessels,
during surveys or during vessel transit, Orsted must immediately report
sighting information to the NMFS North Atlantic Right Whale Sighting
Advisory System and to the U.S. Coast Guard, and that any discoveries
of injured or dead marine mammals be reported by Orsted to the Office
of Protected Resources, NMFS, and to the New England/Mid-Atlantic
Regional Stranding Coordinator as soon as feasible. All reports and
associated data submitted to NMFS are included on the website for
public inspection.
Comment 16: Oceana recommended increasing the Exclusion Zone to
1,000 m for NARWs.
Response: NMFS notes that the 500 m Exclusion Zone for NARWs
required in the IHA already exceeds the modeled distance to the largest
160 dB Level B harassment isopleth distance (141 m during sparker use)
by a substantial margin. Commenters do not provide a compelling
rationale for why the Exclusion Zone should be even larger. Given that
these surveys are relatively low impact and that, regardless, NMFS has
prescribed a NARW Exclusion Zone that is significantly larger (500 m)
than the conservatively estimated largest harassment zone (141 m), NMFS
has determined that the Exclusion Zone is appropriate. Further, Level A
harassment is not expected to result even in the absence of mitigation,
given the characteristics of the sources planned for use. As described
in the Mitigation section, NMFS has determined that the prescribed
mitigation requirements are sufficient to effect the least practicable
adverse impact on all affected species or stocks.
Comment 17: Oceana recommends a shutdown requirement if a NARW or
other ESA-listed species is detected in the clearance zone as well as a
publically available explanation of any exemptions as to why the
applicant would not be able to shut down in these situations.
Response: There are several shutdown requirements described in the
Federal Register notice of the proposed IHA (87 FR 15922; March 21,
2022), and which are included in the final IHA, including the
stipulation that geophysical survey equipment must be immediately shut
down if any marine mammal is observed within or entering the relevant
Exclusion Zone (EZ) while geophysical survey equipment is operational.
There is no exemption for the shutdown requirement. In regards to
reporting, Orsted must notify NMFS if a NARW is observed at any time by
any survey vessels during surveys or during vessel transit.
Additionally, Orsted is required to report the relevant survey activity
information, such as such as the type of survey equipment in operation,
acoustic source power output while in operation, and any other notes of
significance (i.e., pre-clearance survey, ramp-up, shutdown, end of
operations, etc.) as well as the estimated distance to an animal and
its heading relative to the survey vessel at the initial sighting and
survey activity information. We note that if a right whale is detected
within the Exclusion Zone before a shutdown is implemented, the right
whale and its distance from the sound source, including if it is within
the Level B harassment zone, would be reported in Orsted's final
monitoring report and made publicly available on NMFS' website. Orsted
is required to immediately notify NMFS of any sightings of NARWs and
report upon survey activity information. NMFS believes that these
requirements address the commenter's concerns.
Comment 18: Oceana recommended that when HRG surveys are allowed to
resume after a shutdown event, the surveys should be required to use a
ramp-up procedure to encourage any nearby marine life to leave the
area.
Response: NMFS agrees with this recommendation and included in the
Federal Register notice of the proposed IHA (87 FR 15922; March 21,
2022) and this final IHA a stipulation that when technically feasible,
survey equipment must be ramped up at the start or restart of survey
activities. Ramp-up must begin with the power of the smallest acoustic
equipment at its lowest practical power output appropriate for the
survey. When technically feasible the power must then be gradually
turned up and other acoustic sources added in a way such that the
source level would increase gradually. NMFS notes that ramp-up would
not be required for short periods where acoustic sources were shut down
(i.e., less than 30 minutes) if PSOs have maintained constant visual
observation and no detections of marine mammals occurred within the
applicable EZ.
Comment 19: RODA expressed concern regarding the potential for
increased uncertainty in estimates of marine mammal abundance resulting
from wind turbine presence during low aerial surveys and potential
effects of NMFS' ability to continue using current low-flying survey
methods to fulfill its mission of precisely and accurately assessing
protected species.
Response: NMFS has determined that offshore wind development
projects may impact several surveys carried out by its Northeast
Fisheries Science Center (NEFSC), including aerial surveys for
protected species. NEFSC has developed a federal survey mitigation
program to mitigate the impacts to these surveys, and is in the early
stages of implementing this program. However, this impact is outside
the scope of analysis related to the authorization of take incidental
to Orsted's specified activity under the MMPA.
Comment 20: RODA expressed concerns with the high amount of
increased vessel traffic associated with the OSW projects throughout
the region in areas transited or utilized by certain protected
resources, as well as concern for vessel noise.
Response: Orsted did not request authorization for take incidental
to vessel traffic during Orsted's marine site characterization survey.
Nevertheless, NMFS analyzed the potential for vessel strikes to occur
during the survey, and determined that the potential for vessel strike
is so low as to be discountable. NMFS does not authorize any take of
marine mammals incidental to vessel strike resulting from the survey.
If Orsted were to strike a marine mammal with a vessel, this would be
an unauthorized take and be in violation of the MMPA. This gives Orsted
a strong incentive to operate its vessels with all due caution and to
effectively implement the suite of vessel strike avoidance measures
called for in the IHA. Orsted proposed a very
[[Page 30193]]
conservative suite of mitigation measures related to vessel strike
avoidance, including measures specifically designed to avoid impacts to
NARWs. Section 4(f) in the IHA contains a suite of non-discretionary
requirements pertaining to ship strike avoidance, including vessel
operation protocols and monitoring. To date, NMFS is not aware of site
characterization vessel from surveys reporting a ship strike within the
United States. When considered in the context of low overall
probability of any vessel strike by Orsted vessels, given the limited
additional survey-related vessel traffic relative to existing traffic
in the survey area, the comprehensive visual monitoring, and other
additional mitigation measures described herein, NMFS believes these
measures are sufficiently protective to avoid ship strike. These
measures are described fully in the Mitigation section below, and
include, but are not limited to: Training for all vessel observers and
captains, daily monitoring of NARW Sighting Advisory System, WhaleAlert
app, and USCG Channel 16 for situational awareness regarding NARW
presence in the survey area, communication protocols if whales are
observed by any Orsted personnel, vessel operational protocol should
any marine mammal be observed, and visual monitoring.
The potential for impacts related to an overall increase in the
amount of vessel traffic due to OSW development is separate from the
aforementioned analysis of potential for vessel strike during Orsted's
specified survey activities. For more information, please see the
response to comment 7 discussing cumulative impacts.
Comment 21: RODA defers to the Marine Mammal Commission's previous
comments on this matter, expressing that ``they are more knowledgeable
on impacts of pile driving and acoustics to marine mammals''.
Response: In response to RODA's deferral to the Marine Mammal
Commission, the Commission, the agency charged with advising federal
agencies on the impacts of human activity on marine mammals, has
questioned in its previous public comment whether incidental take
authorizations are even necessary for surveys utilizing HRG equipment
(i.e., take is unlikely to occur), and has subsequently informed NMFS
that they would no longer be commenting on such actions, including
Orsted's activity described herein. Additionally, comments related to
pile driving and OSW construction are outside the scope of this IHA and
therefore are not discussed.
Comment 22: RODA defers to the September 9, 2020 letter submitted
by seventeen Environmental NRGs and echoes their concerns.
Response: NMFS refers RODA to the Federal Register notice 85 FR
63508 (October 8, 2020) for previous responses to the Environmental
NGOs' previous letter of which RODA references and defers expertise to.
Comment 22: RODA expressed concern that negative impacts to local
fishermen and coastal communities as a result of a potentially adverse
impact to marine mammals (e.g., vessel strike resulting in death or
severe injury) were not mentioned nor evaluated in ``the LOA request
for this project''. (NMFS notes that its action here is a response to
Orsted's request for an IHA, which is appropriate, rather than an LOA.)
RODA also reiterated concern about the lack of adequate analysis of
individual and cumulative impacts to marine mammals, noting existing
fishery restrictions as a result of other NARW protections.
Response: Neither the MMPA nor our implementing regulations require
NMFS to analyze impacts to other industries (e.g., fisheries) or
coastal communities from issuance of an ITA. Nevertheless, as detailed
in the proposed IHA notice and in our responses to comments 11 and 20,
NMFS has analyzed the potential for adverse impacts such as vessel
strikes to marine mammals, including NARWs, as a result of Orsted's
planned site characterization survey activities and determined that no
serious injury or mortality is anticipated. In fact, as discussed in
the Negligible Impact Analysis and Determination section, later in this
document, no greater than low-level behavioral harassment is expected
for any affected species. For NARW in particular it is considered
unlikely, as a result of the required precautionary shutdown zone
(i.e., 500 m versus the estimated maximum Level B harassment zone of
141 m), that the authorized take would occur at all. Thus, NMFS would
also not anticipate the impacts RODA raises as a result of issuing this
IHA for site characterization survey activities to Orsted. In regards
to cumulative impacts, we defer back to our response to comment 6.
Comment 23: RODA expressed interest in understanding the outcome if
the number of actual takes exceed the number authorized during
construction of an offshore wind project (i.e., would the project be
stopped mid-construction or operation), and how offshore wind
developers will be held accountable for impacts to protected species
such that impacts are not inadvertently assigned to fishermen, should
they occur. Lastly, RODA maintains that the OSW industry must be
accountable for incidental takes from construction and operations
separately from the take authorizations for managed commercial fish
stocks.
Response: It is important to recognize that an IHA does not
authorize the activity but authorizes take of marine mammals incidental
to the activity. As described in condition 3(b) and (c) of the IHA,
authorized take, by Level B harassment only, is limited to the species
and numbers listed in Table 1 of the final IHA, and any taking
exceeding the authorized amounts listed in Table 1 is prohibited and
may result in the modification, suspension, or revocation of the IHA.
As described in condition 4(e)(vii), shutdown of acoustic sources is
required upon observation of either a species for which incidental take
is not authorized or a species for which incidental take has been
authorized but the authorized number of takes has been met, entering or
within the Level B harassment zone as described in Table 2 of the IHA.
It is unclear why RODA would be concerned that the OSW developers
are responsible for their own impacts and ``the burdens of those are
not also assigned to fishermen''. Fishing impacts generally center on
entanglement in fishing gear, which is a very acute, visible, and
severe impact. In contrast, the pathway by which impacts occur
incidental to construction or site characterization survey activities,
such as those planned by Orsted here, is primarily acoustic in nature.
Regardless, NMFS reiterates that this IHA does not authorize take
incidental to construction activities, but site characterization survey
activities, and any take beyond that authorized would be in violation
of the MMPA. It is BOEM's responsibility as the permitting agency to
make decisions regarding ceasing Orsted's overall offshore wind
development activities, not NMFS. If the case suggested by RODA does
occur, NMFS would work with BOEM and Orsted to determine the most
appropriate means by which to ensure compliance with the MMPA. As noted
previously in response to Comment 8, the impacts of commercial
fisheries on marine mammals and incidental take for said fishing
activities are indeed managed separately from those of non-commercial
fishing activities such as offshore wind site characterization surveys
(MMPA section 118).
[[Page 30194]]
Changes From the Proposed to the Final IHA
In response to DNREC's request to incorporate the occurrence of
additional pinnipeds in our analysis, a description of harp seals has
been added to the Description of Marine Mammals in the Area of
Specified Activities section as well as details pertaining to their
potential occurrence in Orsted's planned survey area used in our
analysis. Elsewise, no changes have occurred from the proposed to final
IHA.
Since publication of the notice of proposed IHA, NMFS has
acknowledged that the population estimate of NARWs is now under 350
animals (<a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>). However, as discussed in our response to Comment #4 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 Orsted'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.
Additional information regarding population trends and threats may be
found in NMFS's Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species or stocks for which take is expected and
is authorized for this action, and summarizes information related to
the population or stock, including regulatory status under the MMPA and
Endangered Species Act (ESA) and potential biological removal (PBR),
where known. For taxonomy, we follow Committee on Taxonomy (2021). PBR
is defined by the MMPA as the maximum number of animals, not including
natural mortalities, that may be removed from a marine mammal stock
while allowing that stock to reach or maintain its optimum sustainable
population (as described in NMFS's SARs). While no mortality is
anticipated or authorized here, PBR and annual serious injury and
mortality from anthropogenic sources are included here as gross
indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS's U.S. Atlantic and Gulf of Mexico SARs (e.g., Hayes et al.,
2021). All values presented in Table 2 are the most recent available at
the time of publication and are available in the 2020 SARs (Hayes et
al., 2021) and 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 2--Marine Mammal Species Likely To Occur Near the Survey Area That May Be Affected by Orsted's Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
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 Atlantic...... E, D, Y 368 (0, 364, 2019) \5\ 0.7 7.7
Family Balaenopteridae (rorquals):
Fin whale....................... Balaenoptera physalus.. Western North Atlantic E, D, Y 6802 (0.24, 5573, 11 1.8
2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia........... E, D, Y 6292 (1.02, 3098, 6.2 0.8
2016).
Minke whale..................... Balaenoptera Canadian Eastern -,--, N 21,968 (0.31, 17002, 170 10.6
acutorostrata. Coastal. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine......... -,--, Y 1396 (0, 1380, 2016).. 22 12.15
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale......................... Physeter macrocephalus. North Atlantic........ E, D, Y 4349 (0.28, 3451, See 3.9 0
SAR).
Family Delphinidae:
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic -, -, N 93,233 (0.71, 54443, 544 27
See SAR).
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic -, -, N 39,921 (0.27, 32032, 320 0
See SAR).
Common bottlenose dolphin....... Tursiops truncatus..... Western North Atlantic -, -, N 62,851 (0.23, 51914, 519 28
Offshore. See SAR).
Western North Atlantic -, -, Y 6639 (0.41, 4759, 48 12.2-21.5
Northern Migratory 2016).
Coastal.
Long-finned pilot whale......... Globicephala melas..... Western North Atlantic -, -, N 39,215 (0.3, 30627, 306 29
See SAR).
Short-finned pilot whale........ Globicephala Western North Atlantic -, -, Y 28,924 (0.24, 23637, 236 136
macrorhynchus. See SAR).
Risso's dolphin................. Grampus griseus........ Western North Atlantic -, -, N 35,215 (0.19, 30051, 301 34
2016).
[[Page 30195]]
Common dolphin.................. Delphinus delphis...... Western North Atlantic -, -, N 172,974 (0.21, 145216, 1,452 390
2016).
Family Phocoenidae (porpoises).
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 95,543 (0.31, 74034, 851 164
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals).
Gray seal \4\................... Halichoerus grypus..... Western North Atlantic -, -, N 27300 (0.22, 22785, 1,389 4453
2016).
Harbor seal..................... Phoca vitulina......... Western North Atlantic -, -, N 61,336 (0.08, 57637, 1,729 339
2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed
under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>-species-stock. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance.
\3\ These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g.,
commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV
associated with estimated mortality due to commercial fisheries is presented in some cases.
\4\ The NMFS stock abundance estimate (and associated PBR value) applies to the U.S. population only, however the actual stock abundance is
approximately 451,431 (including animals in Canada). The annual mortality and serious injury (M/SI) value given is for the total stock.
\5\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species 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 16 species (with 17 managed stocks) in
Table 2 temporally and spatially co-occur with the activity to the
degree that take is reasonably likely to occur. While harp seals have
been documented in the area, the spatial occurrence of these species is
such that take is not expected to occur, and they are not discussed
further beyond the explanation provided here. In addition to what is
included in Sections 3 and 4 of Orsted's application, the SARs, and
NMFS' website, further detail informing the baseline for select species
(e.g., information regarding current Unusual Mortality Events (UMEs))
was provided in the notice of proposed IHA (87 FR 15922; March 21,
2022), and is not repeated here. No new information is available to the
species discussed in the notice of proposed since publication of that
notice. Information regarding presence and habitat of harp seals is
provided below.
Harp seals are highly migratory and occur throughout much of the
North Atlantic and Arctic Oceans (Hayes et al., 2021). Breeding occurs
between late- February and April and adults then assemble on suitable
pack ice to undergo the annual molt. The migration then continues north
to Arctic summer feeding groups. Harp seal occurrence in the survey
area is considered rare. However, since the early 1990s, number of
sightings and strandings have been increasing off the east coast of the
United States from Maine to New Jersey (Katona et al., 1993; Rubinstein
1994; Stevick and Fernald 1998; McAlpine 1999; Lacoste and Stenson
2000; Soulen et al., 2013). Between 2015 and 2019, 5 harp seal
strandings were documented in Delaware and 15 were documented in New
Jersey (Hayes et al., 2021). These extralimital appearances usually
occur in January through May (Harris et al., 2002), when the western
North Atlantic stock is at its most southern point of migration. Harp
seals are not expected to occur in the survey area, and NMFS has not
authorized take of this species.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for Mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in Table 3.
[[Page 30196]]
Table 3--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.
16 marine mammal species (14 cetacean and 2 pinniped (both phocid)
species) have the reasonable potential to co-occur with the survey
activities. Please refer to Table 2. Of the cetacean species that may
be present, five are classified as low-frequency cetaceans (i.e., all
mysticete species), nine are classified as mid-frequency cetaceans
(i.e., all delphinid and ziphiid species and the sperm whale), and one
is classified as high-frequency cetaceans (i.e., harbor porpoise and
Kogia spp.).
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The notice of proposed IHA included a summary of the ways that
Orsted's specified activity may impact marine mammals and their habitat
(87 FR 15922; March 21, 2022). Detailed descriptions of the potential
effects of similar specified activities have been provided in other
recent Federal Register notices, including for survey activities using
the same methodology, over a similar amount of time, and occurring in
the Mid-Atlantic region, including Delaware waters (e.g., 82 FR 20563,
May 3, 2017; 85 FR 36537, June 17, 2020; 85 FR 37848, June 24, 2020; 85
FR 48179, August 10, 2020; 86 FR 11239, February 24, 2021, 86 FR 28061,
May 25, 2021). No significant new information is available, and we
refer the reader to these documents rather than repeating the details
here. The Estimated Take section includes a quantitative analysis of
the number of individuals that are expected to be taken by Orsted's
activity. The Negligible Impact Analysis and Determination section
considers the potential effects of the specified activity, the
Estimated Take section, and the Mitigation section, to draw conclusions
regarding the likely impacts of these activities on the reproductive
success or survivorship of individuals and how those impacts on
individuals are likely to impact marine mammal species or stocks. The
notice of proposed IHA (87 FR 15922;March 21, 2022) also provided
background information regarding active acoustic sound sources and
acoustic terminology, which is not repeated here.
The potential effects of Orsted's specified survey activity are
expected to be limited to Level B behavioral harassment. No permanent
or temporary auditory effects, or significant impacts to marine mammal
habitat, including prey, are expected.
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through the IHA, which informs both NMFS' consideration of
``small numbers'' and the negligible impact determination.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes are by Level B harassment only, in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to noise from certain HRG acoustic sources.
Based primarily on the characteristics of the signals by the acoustic
sources planned for use, Level A harassment is neither anticipated
(even absent mitigation), nor is authorized. Consideration of the
anticipated effectiveness of the 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)
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 estimate.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment for non-explosive sources--Though significantly
driven by received level, the onset of behavioral
[[Page 30197]]
disturbance from anthropogenic noise exposure is also informed to
varying degrees by other factors related to the source (e.g.,
frequency, predictability, duty cycle), the environment (e.g.,
bathymetry), and the receiving animals (hearing, motivation,
experience, demography, behavioral context) and can be difficult to
predict (Southall et al., 2007, Ellison et al., 2012). Based on what
the available science indicates and the practical need to use a
threshold based on a factor that is both predictable and measurable for
most activities, NMFS uses a generalized acoustic threshold based on
received level to estimate the onset of behavioral harassment. NMFS
predicts that marine mammals are likely to be behaviorally harassed in
a manner we consider Level B harassment when exposed to underwater
anthropogenic noise above received levels of 160 dB re 1 [mu]Pa (rms)
for impulsive (e.g., sparkers and boomers) evaluated here for Orsted's
activity.
Level A harassment for non-explosive sources--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="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Orsted's HRG survey includes the use of impulsive sources. However,
as described 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 considered here, and the potential for Level A
harassment is not evaluated further in this document. Please see
Orsted's application for details of a quantitative exposure analysis
exercise, i.e., calculated Level A harassment isopleths and estimated
Level A harassment exposures. Orsted did not request authorization of
take by Level A harassment, and no take by Level A harassment is
authorized by NMFS.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that will feed into identifying the area ensonified above the
acoustic thresholds, which include source levels and transmission loss
coefficient.
NMFS has developed a user-friendly methodology for determining the
rms sound pressure level (SPL<INF>rms</INF>) at the 160-dB isopleth for
the purpose of estimating the extent of Level B harassment isopleths
associated with HRG survey equipment (NMFS, 2020). This methodology
incorporates frequency and some directionality to refine estimated
ensonified zones. Orsted used NMFS's methodology, using the source
level and operation mode of the equipment planned for used during the
survey, to estimate the maximum ensonified area over a 24-hr period
also referred to as the harassment area (Table 1). Potential takes by
Level B harassment are estimated within the ensonified area (i.e.,
harassment area) as an SPL exceeding 160 dB re 1 [micro]Pa for
impulsive sources (e.g., sparkers, boomers) within an average day of
activity.
The harassment zone is a representation of the maximum extent of
the ensonified area around a sound source over a 24-hr period. The
harassment area was calculated per the following formula:
Stationary Source: Harassment zone = [pi]r\2\
Mobile Source: Harassment zone = (Distance/day 2r) + [pi]r\2\
Where r is the linear distance from the source to the isopleth for the
Level B harassment threshold and day = 1 (i.e., 24 hours).
The estimated potential daily active survey distance of 70 km was
used as the estimated areal coverage over a 24-hr period. This distance
accounts for the vessel traveling at roughly 4 kn (7.4 km/hr) and only
for periods during which equipment <180 kHz is in operation. A vessel
traveling 4 kn (7.4 km/hr) can cover approximately 110 km per day;
however, based on data from 2017, 2018, and 2019 surveys, survey
coverage over a 24-hour period is closer to 70 km per day as a result
of delays due to, e.g., weather, equipment malfunction. For daylight
only vessels, the distance is reduced to 35 km per day; however, to
maintain the potential for 24-hr surveys, the corresponding Level B
harassment zones provide in Table 4 were calculated for each source
based on the Level B threshold distances within a 24-hour (70 km)
operational period.
Table 4--Calculated Harassment Zones Encompassing Level B \1\ Thresholds
for Each Sound Source or Comparable Sound Source Category
------------------------------------------------------------------------
Level B
Level B harassment
Source harassment zone (km\2\)
isopleths (m) \2\
------------------------------------------------------------------------
ET 216 CHIRP............................ 9 1.3
ET 424 CHIRP............................ 4 0.6
ET 512i CHIRP........................... 6 0.8
GeoPulse 5430........................... 21 2.9
TB CHIRP III............................ 48 6.7
Pangeo SBI.............................. 22 3.1
AA Triple plate S-Boom (700-1,000 J).... 34 4.8
AA, Dura-spark UHD Sparkers............. 141 \3\ 19.8
GeoMarine Sparkers...................... 141 \3\ 19.8
------------------------------------------------------------------------
AA = Applied Acoustics; CHIRP = compressed high-intensity radiated
pulses; ET = edgetech; HF = high-frequency; J = joules;
LF = low-frequency; MF = mid-frequency; PW = phocid pinnipeds in water;
SBI = sub-bottom imager; SBP = sub-bottom profiler;
TB = Teledyne benthos UHD = ultra-high definition.
\1\ The applicant calculated both Level A and B isopleths to
comprehensively assess the potential impacts of the predicted source
operations as required for this Application. However, as described
previously throughout this document, Level A takes are not expected
and thus, are not authorized, therefore they are not discussed in this
document. Please refer to Orsted's application for more information.
\2\ Based on maximum threshold distances provided in Table 4 of Orsted's
application and calculated for Level B root-mean-square sound pressure
level thresholds.
[[Page 30198]]
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 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, 2021). The updated models incorporate
sighting data, including sightings from NOAA's Atlantic Marine
Assessment Program for Protected Species (AMAPPS) surveys.
For exposure analysis, density data from Roberts et al., (2016,
2017, 2018, 2020, 2021) were mapped using a geographic information
system (GIS). Density grid cells that included any portion of the
survey Area were selected for all survey months (see Figure 3 of
Orsted's application). For the survey area (i.e., Lease Areas OCS-A-
0482, 5219), the densities for each species as reported by Roberts et
al., 2016, 2017, 2018, 2020, 2021) were averaged by month; those values
were then used to calculate the mean annual density for each species
within the survey Area. Estimated mean monthly and annual densities
(animals per km\2\) of all marine mammal species that may be taken by
the survey are shown in Table 7 of Orsted's application. The mean
annual density values used to estimate take numbers are shown in Table
5 below.
Due to limited data availability and difficulties identifying
individuals to species level during visual surveys, individual
densities are not able to be provided for all species and they are
instead grouped into ``guilds'' (Roberts et al., 2021). These guilds
include pilot whales, and seals. Long- and short-finned pilot whales
are difficult to distinguish during shipboard surveys so individual
habitat models were not able to be developed and thus, densities are
assumed to apply to both species. Similarly, Roberts et al. (2018)
produced density models for all seals but did not differentiate by seal
species. Because the seasonality and habitat use by gray seals roughly
overlaps with that of harbor seals in the survey areas, it was assumed
that the mean annual density could refer to either of the represented
species and was, therefore, divided equally between the two species.
For bottlenose dolphin densities, Roberts et al., 2016, 2017, 2018,
2020, 2021 does not differentiate by stock. As previously discussed,
both the northern migratory coastal stock and the Western North
Atlantic offshore stock are expected to occur in the survey Area. To
estimate densities for both stocks, the density blocks from within the
survey Area were divided using the 20 m isobath (Hayes et al. 2021).
Therefore, any density blocks located between the coastline and the 20
m isobath were attributed to the migratory coastal stock, and density
blocks beyond this isobath were attributed to the offshore stock (see
Table 5 for average annual densities calculated).
Table 5--Estimated Average Annual Densities (Animals per km\2\) of
Potentially Affected Marine Mammals Within the Survey Area Based on
Monthly Habitat Density Models
[Roberts et al., 2017, 2018, 2020, 2021]
------------------------------------------------------------------------
Average
annual
Species density
(km\2\)
------------------------------------------------------------------------
Fin whale................................................... 0.001
Sei Whale................................................... 0
Minke Whale................................................. 0.0003
Humpback whale.............................................. 0.0005
North Atlantic Right Whale.................................. 0.0017
Sperm Whale................................................. 0.0001
Atlantic White-Sided Dolphin................................ 0.0015
Atlantic Spotted Dolphin.................................... 0.0007
Bottlenose Dolphin (Offshore) \1\........................... 0.0569
Bottlenose Dolphin (Migratory) \1\.......................... 0.3972
Long-finned Pilot Whale \2\................................. 0.0004
Short-Finned Pilot Whale \2\................................ 0.0004
Risso's Dolphin............................................. 0
Common Dolphin.............................................. 0.0101
Harbor Porpoise............................................. 0.0085
Gray Seal 3 4............................................... 0.0007
Harbor Seal 3 4............................................. 0.0007
------------------------------------------------------------------------
\1\ Bottlenose dolphin stocks were delineated based on the 20-m isobath
as identified in NMFS 2021 Stock Assessment Report; all density blocks
falling inshore of the 20-m depth contour were assumed to belong to
the migratory coastal stock, and those beyond this depth were assumed
to belong to the offshore stock.
\2\ Roberts (2021) only provides density estimates for ``generic'' pilot
whales, so individual densities for each species are unavailable and
densities were therefore assumed to apply to both species as both
species have the same potential to occur in the survey area.
\3\ Seal densities are not given by individual months or species,
instead, seasons are divided as summer (June, July, August) and Winter
(September-May) and applied to ``generic'' seals; as a result,
reported seasonal densities for spring and fall are the same and are
not provided for each species (Roberts, 2021) (See Table 7 in Orsted's
application).
\4\ Data used to establish the density estimates from Roberts (2021) are
based on information for all seal species that may occur in the
Western North Atlantic (e.g., harbor, gray, hooded, harp). However,
only the harbor seal and gray seal are reasonably expected to occur in
the survey area, and the densities were split evenly between both
species.
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 potential Level B harassment exposures were
estimated by multiplying the average annual density of each species
(Table 5) within the Lease Area and ECR area by the largest daily
harassment zone (19.8 km\2\) (Table 4). That product was then
multiplied by the number of operating vessel days (350), and the
product is rounded to the nearest whole number:
Estimated take = species density x harassment zone x # of Survey Days
For bottlenose dolphin densities, Roberts et al., (2016a, 2016b,
2017, 2018, 2020) does not differentiate by individual stock. The WNA
offshore stock is assumed to be located in depths exceeding the 20 m
isobath, while the WNA Northern migratory coastal stock is assumed to
be found in shallower depths than the 20 m isobath north of Cape
Hatteras (Reeves et al., 2002; Waring et al., 2016). The maximum
potential Level B harassment takes calculated for each stock of
bottlenose
[[Page 30199]]
dolphins are based on the full survey duration occurring inside or
outside the 20 m isobath; however only a portion of the survey will
occur in each area. At this time, Orsted does not know the exact number
of survey days that may occur within each area, and could not
differentiate the maximum number of calculated instances of take
(2,752, calculated for the migratory stock) between the two stocks of
bottlenose dolphins potentially present during the survey activities.
Orsted therefore requested, and NMFS authorizes, 2,752 instances of
take of bottlenose dolphins, regardless of stock.
No takes were calculated for sei whale, sperm whale, or Risso's
dolphin; however, based on anticipated species distributions and data
from previous surveys in the same general area it is possible that
these species could be encountered. Therefore, Orsted requested, and
NMFS authorizes, takes of these species based on estimated group sizes
(Kenney and Vigness-Raposa, 2010; Barkaszi and Kelly, 2019). For common
dolphins, only 70 takes were calculated. However, draft Protected
Species Observer (PSO) reports from from the ongoing Garden State and
Skipjack surveys near the action area and completed surveys from 2018
through 2020 indicate the potential for more common dolphins to be
encountered in the area. Therefore, Orsted requested, and NMFS
authorizes, take of 400 common dolphins. Calculated exposure estimates
and take authorizations are shown in Table 6.
Table 6--Authorized Amount of Taking, by Level B Harassment Only, by Species and Stock and Percent of Take by
Stock
----------------------------------------------------------------------------------------------------------------
Level B takes Max percent
Species Stock Abundance \a\ of population
----------------------------------------------------------------------------------------------------------------
Low-frequency cetaceans:
Fin whales........................ Western North Atlantic.. 6,802 7 0.10
Sei whales........................ Nova Scotia............. 6,292 0 (1) 0.02
Minke whales...................... Canadian Eastern Coastal 21,968 2 0.01
Humpback whales................... Gulf of Maine........... 1,396 4 0.29
North Atlantic right whale........ Western Atlantic........ 368 11 2.99
Mid-frequency cetaceans:
Sperm whale....................... North Atlantic.......... 4,349 0 (3) 0.07
Atlantic white-sided dolphin...... Western North Atlantic.. 93,233 10 (50) 0.05
Atlantic spotted dolphin.......... Western North Atlantic.. 39,921 5 (15) 0.04
Common bottlenose dolphin \b\..... WNA Offshore............ 62,851 \c\ 2,752 4.38
WNA Northern Migratory 6,639 .............. 41.45
Coastal.
Pilot whales...................... Short-finned............ 28,924 3 (20) 0.07
Long-finned............. 39,215 3 (20) 0.05
Risso's dolphin................... Western North Atlantic.. 35,215 0 (30) 0.09
Common dolphin.................... Western North Atlantic.. 172,974 70 (400) 0.23
High-frequency cetaceans:
Harbor porpoise................... Gulf of Maine/Bay of 95,543 82 0.09
Fundy.
Pinnipeds:
Gray seal......................... Western North Atlantic.. 27,300 4 0.01
Harbor seal....................... Western North Atlantic.. 61,336 4 0.01
----------------------------------------------------------------------------------------------------------------
a. Parentheses denote take authorization where different from Orsted's calculated take estimates. Calculated
takes were adjusted for the take authorization in one of two ways: (1) For species for which calculated take
was significantly less than the number of individuals reported in the available monitoring reports and any
available draft data (e.g., ongoing surveys) in the area, the total number of individuals reported were used
for take requests; (2) For species with no calculated takes, or takes were less than mean group size,
requested takes were based the mean group sizes derived from the following references:
<bullet> Sei whale: Kenney and Vigness-Raposa, 2010
<bullet> Sperm whale: Barkaszi and Kelly, 2018
<bullet> Atlantic white-sided dolphin: NMFS, 2021
<bullet> Atlantic spotted dolphin: NMFS, 2021
<bullet> Pilot whales: Kenney and Vigness-Raposa, 2010Risso's dolphin: Barkaszi and Kelly, 2018
b. Take estimate is based on the maximum number of calculated instances of take for either stock and is assumed
to apply to all bottlenose dolphins potentially present in the survey area. Therefore takes could consist of
individuals from either the Offshore or the Northern Migratory Coastal stock. Although unlikely, for purposes
of calculating max percentage of population, we assume all takes could be allocated to either stock.
c. Assumes multiple repeated takes of same individuals from each stock. Please see the Small Numbers section for
additional information.
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
[[Page 30200]]
accomplishing the mitigating result if implemented as planned), the
likelihood of effective implementation (probability implemented as
planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations.
Mitigation for Marine Mammals and Their Habitat
The following mitigation measures will be implemented during
Orsted's marine site characterization surveys. Pursuant to section 7 of
the ESA, Orsted will also be required to adhere to relevant Project
Design Criteria (PDC) of the NMFS Greater Atlantic Regional Office
(GARFO) programmatic consultation (specifically PDCs 4, 5, and 7)
regarding geophysical surveys along the U.S. Atlantic coast (see NOAA
GARFO, 2021; <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>).
Marine Mammal Exclusion Zones and Harassment Zones
Marine mammal EZ will be established around the HRG survey
equipment and monitored by NMFS-approved PSOs:
<bullet> 500 m EZ for NARWs during use of acoustic sources <180 kHz
(e.g., Sparkers, Non-parametric sub-bottom profilers); and
<bullet> 100 m EZ for all other marine mammals, with certain
exceptions specified below, during operation of impulsive acoustic
sources (boomer and/or sparker).
If a marine mammal is detected approaching or entering the EZs
during the HRG survey, the vessel operator will adhere to the shutdown
procedures described below to minimize noise impacts on the animals.
These stated requirements will be included in the site-specific
training to be provided to the survey team.
Pre-Start Clearance
Marine mammal clearance zones will be established around the HRG
survey equipment and monitored by PSOs:
<bullet> 500 m for all ESA-listed marine mammals; and
<bullet> 100 m for all other marine mammals.
Orsted will implement a 30-minute pre-start clearance period prior
to the initiation of ramp-up of specified HRG equipment. During this
period, clearance zones will be monitored by PSOs, using the
appropriate visual technology. Ramp-up may not be initiated if any
marine mammal(s) is within its respective clearance zone. If a marine
mammal is observed within a clearance zone during the pre-star
clearance period, ramp-up may not begin until the animal(s) has been
observed exiting its respective exclusion zone or until an additional
time period has elapsed with no further sighting (i.e., 15 minutes for
small odontocetes and seals, and 30 minutes for all other species).
Ramp-Up of Survey Equipment
A ramp-up procedure, involving a gradual increase in source level
output, is required at all times as part of the activation of the
acoustic source when technically feasible. The ramp-up procedure will
be used at the beginning of HRG survey activities in order to provide
additional protection to marine mammals near the survey area by
allowing them to vacate the area prior to the commencement of survey
equipment operation at full power. Operators should ramp-up sources to
half power for 5 minutes and then proceed to full power.
Ramp-up activities will be delayed if a marine mammal(s) enters its
respective exclusion zone. Ramp-up will continue if the animal has been
observed exiting its respective exclusion zone or until an additional
time period has elapsed with no further sighting (i.e., 15 minutes for
small odontocetes and 30 minutes for all other species).
Ramp-up may occur at times of poor visibility, including nighttime,
if appropriate visual monitoring has occurred with no detections of
marine mammals in the 30 minutes prior to beginning ramp-up. Acoustic
source activation may only occur at night where operational planning
cannot reasonably avoid such circumstances.
Shutdown Procedures
An immediate shutdown of the impulsive HRG survey equipment will be
required if a marine mammal is sighted entering or is 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 operatory should be discussed only after
shutdown has occurred. Subsequent restart of the survey equipment can
be initiated if the animal has been observed exiting its respective
exclusion zone or until an additional time period has elapsed (i.e., 15
minutes for small odontocetes and 30 minutes for all other species).
If species for which authorization has not been granted, or, a
species for which authorization has been granted but the authorization
number of takes have been met, approaches or is observed within the
Level B harassment zone (Table 4), shutdown will occur.
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 without ramp-up if SOs have maintained constant
observation and no detections of any marine mammal have occurred within
the respective exclusion zones. If the acoustic source is shut down for
a period longer than 30 minutes, then pre-clearance and ramp-up
procedures will be initiated as described in the previous section.
The shutdown requirement will be waived for pinnipeds and for small
delphinids of the following genera: Delphinus, Lagenorhynchus,
Stenella, and Tursiops. Specifically, if a delphinid from the specified
genera or a pinniped is visually detected approaching the vessel (i.e.,
to bow ride) or towed equipment, shutdown is not required. 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 or pinniped is
detected in the exclusion zone and belongs to a genus other than those
specified.
Shutdown, pre-start clearance, and ramp-up procedures are not
required during HRG survey operations using only non-impulsive sources
(e.g., echosounders) other than non-parametric sub-bottom profilers
(e.g., CHIRPs).
Vessel Strike Avoidance
Orsted must adhere to the following measures except in the case
where compliance will 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:
<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
[[Page 30201]]
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 identify a marine mammal as a right whale,
other whale (defined in this context as sperm whales or baleen whales
other than right whales), or other marine mammal;
<bullet> All survey vessels, regardless of size, must observe a 10
kn (18.5 km/hr) speed restriction in specified areas designated by NMFS
for the protection of NARWs from vessel strikes including SMAs and DMAs
when in effect;
<bullet> Members of the monitoring team will consult NMFS NARW
reporting system and Whale Alert, as able, for the presence of NARWs
throughout survey operations, and for the establishment of a DMA. If
NMFS should establish a DMA in the survey area during the survey, the
vessels will abide by speed restrictions in the DMA;
<bullet> All vessels greater than or equal to 19.8 m in overall
length operating from November 1 through April 30 will operate at
speeds of 10 kn (18.5 km/hr) or less at all times;
<bullet> All vessels must reduce their speed to 10 kn (18.5 km/hr)
or less when mother/calf pairs, pods, or large assemblages of any
species of cetaceans is observed near a vessel;
<bullet> All vessels must maintain a minimum separation distance of
500 m from right whales and other ESA-listed large whales;
<bullet> If a whale is observed but cannot be confirmed as a
species other than a right whale or other ESA-listed large 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 non-ESA listed whales;
<bullet> All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50 m from all
other marine mammals, with an understanding that at times this may not
be possible (e.g., for animals that approach the vessel);
<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.
Project-specific training will be conducted for all vessel crew
prior to the start of a survey and during any changes in crew such that
all survey personnel are fully aware and understand the mitigation,
monitoring, and reporting requirements. Prior to implementation with
vessel crews, the training program will be provided to NMFS for review
and approval. Confirmation of the training and understanding of the
requirements will be documented on a training course log sheet. Signing
the log sheet will certify that the crew member understands and will
comply with the necessary requirements throughout the survey
activities.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered to by NMFS, NMFS has determined that
the mitigation measures provide the means of effective 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
action area. Effective reporting is critical both to compliance as well
as ensuring that the most value is obtained from the required
monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
<bullet> Mitigation and monitoring effectiveness.
Monitoring Measures
Visual monitoring will be performed by qualified, NMFS-approved
PSOs, the resumes of whom will be provided to NMFS for review and
approval prior to the start of survey activities. Orsted will 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. On
a case-by-case basis, non-independent observers may be approved by NMFS
for limited, specified duties in support of approved, independent PSOs
on smaller vessels with limited crew operating in nearshore waters.
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
[[Page 30202]]
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) will ensure 360 degree visual
coverage around the vessel from the most appropriate observation posts
and will 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 observations
per 24-hr period. In cases where multiple vessels are surveying
concurrently, any observations of marine mammals will 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 will be used. Position data will be recorded
using hand-held or vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state
BSS) 3 or less), to the maximum extent practicable, PSOs will 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 will be relayed to
the PSO team. Data on all PSO observations will be recorded based on
standard PSO collection requirements. This will 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, behaviors); and details of any observed marine mammal
behavior that occurs (e.g., notes behavioral disturbances). For more
detail on the monitoring requirements, see Condition 5 of the issued
IHA.
Reporting Measures
Within 90 days after completion of survey activities or expiration
of this IHA, whichever comes sooner, a draft comprehensive 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. A final report must be
submitted within 30 days following any comments on the draft report.
All draft and final marine mammal and acoustic monitoring reports must
be submitted to <a href="/cdn-cgi/l/email-protection#94c4c6baddc0c4bad9fbfafde0fbe6fdfaf3c6f1e4fbe6e0e7d4fafbf5f5baf3fbe2"><span class="__cf_email__" data-cfemail="b5e5e79bfce1e59bf8dadbdcc1dac7dcdbd2e7d0c5dac7c1c6f5dbdad4d49bd2dac3">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#88c1dcd8a6cbe7faebe7fae9e6c8e6e7e9e9a6efe7fe"><span class="__cf_email__" data-cfemail="216875710f624e53424e53404f614f4e40400f464e57">[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 names;
<bullet> Dates and times (Greenwich Mean Time) of survey effort and
times corresponding with PSO effort;
<bullet> Vessel location (latitude/longitude) when survey effort
begins and ends; vessel location at beginning and end of visual PSO
duty shifts;
<bullet> Vessel heading and speed at beginning and end of visual
PSO duty shifts and upon any line change;
<bullet> Environmental conditions while on visual survey (at
beginning and end of PSO shift and whenever conditions change
significantly), including wind speed and direction, Beaufort sea state,
Beaufort wind force, swell height, weather conditions, cloud cover, sun
glare, and overall visibility to the horizon;
<bullet> Factors that may be contributing to impaired observations
during each PSO shift change or as needed as environmental conditions
change (e.g., vessel traffic, equipment malfunctions); and
<bullet> Survey activity information, such as type of survey
equipment in operation, acoustic source power output while in
operation, and any other notes of significance (i.e., pre-clearance
survey, ramp-up, shutdown, end of operations, etc.).
If a marine mammal is sighted, the following information should be
recorded:
<bullet> Watch status (sighting made by PSO on/off effort,
opportunistic, crew, alternate vessel/platform);
<bullet> PSO who sighted the animal;
<bullet> Time of sighting;
<bullet> Vessel location at time of sighting;
<bullet> Water depth;
<bullet> Direction of vessel's travel (compass direction);
<bullet> Direction of animal's travel relative to the vessel;
<bullet> Pace of the animal;
<bullet> Estimated distance to the animal and its heading relative
to vessel at initial sighting;
<bullet> Identification of the animal (e.g., genus/species, lowest
possible taxonomic level, or unidentified); also note the composition
of the group if there is a mix of species;
<bullet> Estimated number of animals (high/low/best);
<bullet> Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
<bullet> Description (as many distinguishing features as possible
of each individual seen, including length, shape, color, pattern, scars
or markings, shape and size of dorsal fin, shape of head, and blow
characteristics);
<bullet> Detailed behavior observations (e.g., number of blows,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior);
<bullet> Animal's closest point of approach and/or closest distance
from the center point of the acoustic source;
<bullet> Platform activity at time of sighting (e.g., deploying,
recovering, testing, data acquisition, other); and
<bullet> Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration,
etc.) and time and location of the action.
If a NARW is observed at any time by PSOs or personnel on any
project vessels, during surveys or during vessel transit, Orsted must
immediately report sighting information to the NMFS NARW Sighting
Advisory System: (866) 755-6622. NARW sightings in any location may
also be reported to the U.S. Coast Guard via channel 16.
In the event that Orsted personnel discover an injured or dead
marine mammal, Orsted will report the incident to the NMFS Office of
Protected Resources OPR) and the NMFS New England/Mid-Atlantic
Stranding Coordinator as soon as feasible. The report will include the
following information:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
[[Page 30203]]
<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 this activities covered by the IHA, Orsted will
report the incident to NMFS OPR and the NMFS New/England/Mid-Atlantic
Stranding Coordinator as soon as feasible. The report will 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 responses (e.g., intensity, duration), the context
of any responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of the mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS's implementing
regulations (54 FR 40338; September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, ongoing sources of human-caused mortality, or
ambient noise levels). To avoid repetition, our analysis applies to all
species listed in Table 6, given that NMFS expects the anticipated
effects of the survey to be similar in nature. Where there are
meaningful differences between species or stocks--as is the case of the
NARW--they are included as separate subsections below. NMFS does not
anticipate that serious injury or mortality will occur as a result from
HRG surveys, even in the absence of mitigation, and no serious injury
or mortality is authorized. As discussed in the Potential Effects of
Specified Activities on Marine Mammals and their Habitat section, non-
auditory physical effects and vessel strike are not expected to occur.
NMFS expects that all potential takes will be in the form of 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, 2021). 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 will 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 and the estimated
small size of the Level A harassment zones.
In addition to being temporary, the maximum expected harassment
zone around the survey vessel is 141 m. Therefore, the ensonified area
surrounding each vessel is relatively small compared to the overall
distribution of the animals in the area and their use of the habitat.
Feeding behavior is not likely to be significantly impacted as prey
species are mobile and are broadly distributed throughout the survey
area; therefore, marine mammals that may be temporarily displaced
during survey activities are expected to be able to resume foraging
once they have moved away from areas with disturbing levels of
underwater noise. Because of the temporary nature of the 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. The survey area lies significantly
south (over 250 miles (402 km)) of where Biologically Important Areas
are defined for fin and humpback whales. Therefore, they are not
considered to be ``nearby'' the survey area and are not discussed
further. There is no designated critical habitat for any ESA-listed
marine mammals in the survey area.
North Atlantic Right Whales
The status of the NARW population is of heightened concern and
therefore, merits additional analysis. As noted previously, elevated
NARW mortalities began in June 2017 and there is an active UME.
Overall, preliminary findings support human interactions, specifically
vessel strikes and entanglements, as the cause of death for the
majority of right whales. The survey area overlaps with a migratory
corridor Biologically Important Area (BIA) for NARWs (effective March-
April; November-December) that extends from Massachusetts to Florida
(LaBrecque et al., 2015). Off the coast of Delaware, this migratory BIA
extends from the coast to beyond the shelf break. Due to the fact that
the survey activities 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
[[Page 30204]]
area, it is unlikely that prey availability would be adversely affected
by HRG survey operations. Required vessel strike avoidance measures
will also decrease risk of ship strike during migration; no ship strike
is expected to occur during Orsted's activities. Additionally, only
very limited take by Level B harassment of NARW has been requested and
is being authorized by NMFS as HRG survey operations are required to
maintain a 500 EZ and shutdown if a NARW is sighted at or within the
EZ. The 500 m shutdown zone for right whales is conservative,
considering the Level B harassment isopleth for the most impactful
sources (i.e., GeoMarine Sparkers, AA Dura-spark UHD Sparkers, AA
Triple plate S-Boom) is estimated to be 141 m, and thereby minimizes
the potential for behavioral harassment of this species. As noted
previously, Level A harassment is not expected, nor authorized, due to
the small PTS zones associated with HRG equipment types planned for
use. NMFS does not anticipate NARW takes that result from the survey
activities would impact annual rates of recruitment or survival. Thus,
any takes that occur would not result in population level impacts.
Other Marine Mammals With Active UMEs
As noted previously, there are several active UMEs occurring in the
vicinity of Orsted'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 required mitigation measures are expected to reduce the number
and/or severity of authorized 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 would be in the form of short-term Level B
behavioral harassment by way of brief startling reactions and/or
temporary vacating of the area, or decreased foraging (if such activity
was occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals will only be exposed briefly to a small ensonified area that
might result in take. Additionally, the required mitigation measures
will further reduce exposure to sound that could result in more severe
behavioral harassment.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect the species or stock through
effects on annual rates of recruitment or survival:
<bullet> No mortality or serious injury is anticipated or
authorized;
<bullet> No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, or 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 of 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 would
not affect migration. In addition, mitigation measures require shutdown
at 500 m (almost four times the size of the Level B harassment isopleth
(141 m), which minimizes the effects of the take on the species; and
<bullet> The mitigation measures, including visual monitoring and
shutdowns, are expected to minimize potential impacts to marine
mammals.
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.
The amount of take NMFS authorizes is below one third of the
estimated stock abundance for all species (in fact, take of individuals
is less than 5 percent of the abundance of the affected stocks for
these species, see Table 6) except for the WNA northern migratory
coastal stock of bottlenose dolphins. The figures presented in Table 6
are likely conservative estimates as they assume all takes are of
different individual animals which is likely not to be the case. Some
individuals may return multiple times in a day, but PSOs will count
them as separate takes if they cannot be individually identified. This
is the particularly the case for bottlenose dolphins.
As mentioned above, there are two bottlenose dolphin stocks that
could occur in the survey area: The WNA Offshore and WNA northern
migratory coastal stocks. Given the uncertainty regarding the number of
days Orsted's survey may be within the 20 m isobath, the authorization
of 2,752 instances of take by Level B harassment is not allocated to a
specific stock but rather could be of either stock. However, based on
the stocks' respective occurrence in the area and the consideration of
[[Page 30205]]
various factors as described below, we have determined that the number
of individuals taken will comprise of less than one-third of the best
available population abundance estimate of either stock. Detailed
descriptions of the stocks' ranges have been provided in the
Description of Marine Mammals in the Area of Specified Activities
section.
Both the northern migratory and offshore stocks have expansive
ranges and are the only dolphin stocks thought to make broad-scale,
seasonal migrations in the coastal waters of the North Atlantic. Given
the large ranges associated with these two stocks, it is unlikely that
large segments of either stock would consistently remain in the survey
area. The majority of both stocks are likely to be found widely
dispersed across their respective habitat ranges, and individuals
within each stock migrate on a seasonal basis.
The northern migratory stock spans from the shelf waters of Florida
to Long Island, New York and experience spatiotemporal overlap with
several other bottlenose dolphin stocks in the Western North Atlantic.
The stock is best defined by its distribution during summer water
months (July and August), when it overlaps with the fewest stocks,
during which it occupies coastal waters from the shoreline to
approximately the 20-m isobath between Assateague, Virginia and Long
Island, New York (Hayes et al., 2021). However, during the winter
months (e.g., January and February), the stock occupies coastal waters
from approximately Cape Lookout, North Carolina to the North Carolina/
Virginia border. A study of tagged individuals found that four dolphins
off the coast of New Jersey in the late summer moved south to North
Carolina and inhabited waters near and just south of Cape Hatteras
during cold water months. These animals then returned to the coastal
waters of New Jersey in the following warm weather months (Garrison et
al., 2017). Additionally, during aerial and ship surveys off the New
Jersey coast in 2008 and 2009, no sightings of common bottlenose
dolphins were made during November through February, and bottlenose
dolphins were sighted from early March to mid-October and were most
abundant during May-August. Therefore, the stock is not expected to be
present in its entirety year round in the survey area.
Further, many of the dolphin observations in the Delaware Bay and
South of Cape May, NJ are likely repeated sightings of the same
individuals. A by Toth et al., (2010) conducted 73 boat-based photo-
identification surveys in southern New Jersey near the Bay from 2003-
2005 and found that of the 205 individuals identified, 44 percent were
sighted multiple times within or among the years. Multiple sightings of
the same individual would considerably reduce the number of individual
animals that are taken by harassment.
The offshore stock is distributed primarily along the outer
continental shelf and continental slope in the Northwest Atlantic Ocean
from Georges Band to the Florida Keys (Hayes et al., 2021). There is
suspected overlap of the two stocks south of Cape Hatteras, North
Carolina to some degree.
In summary and as described above, the following factors primarily
support our determination regarding the incidental take of small
numbers of the affected stocks of a species or stock:
<bullet> The take of marine mammal stocks comprises less than 5
percent of any stock abundance (with the exception of the northern
migratory stock of bottlenose dolphins);
<bullet> Potential bottlenose dolphin takes in the survey area are
likely to be allocated between both distinct stocks;
<bullet> Bottlenose dolphin stocks in the survey area have
extensive ranges and it would be unlikely to find a high percentage of
individuals from either stock concentrated in a relatively small area
such as the survey area;
<bullet> Many of the takes would likely be repeats of the same
animals, especially during summer months.
Based on the analysis contained herein of the activity (including
the mitigation and monitoring measures) and the anticipated take of
marine mammals, NMFS finds that small numbers of marine mammals will be
taken relative to the population size of the affected species or
stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS Office of Protected Resources (OPR) consults internally whenever
we propose to authorize take for endangered or threatened species.
NMFS is authorizing the incidental take of four species of marine
mammals which are listed under the ESA, including the North Atlantic
right, fin, sei, and sperm whale, and has determined that these
activities fall within the scope of activities analyzed in GARFO's
programmatic consultation regarding geophysical surveys along the U.S.
Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021). The consultation
concluded that NMFS' issuance of incidental take authorization related
to these activities are not likely to adversely affect ESA-listed
marine mammals.
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 IHA qualifies to be categorically excluded
from further NEPA review.
Authorization
NMFS has issued an IHA to Orsted and its designees for the
potential harassment of small numbers of 16 marine mammal species
incidental to their marine site characterization survey offshore of
Delaware, which includes the previously explained mitigation,
monitoring and reporting requirements.
Dated: May 11, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-10630 Filed 5-17-22; 8:45 am]
BILLING CODE 3510-22-P
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