Notice2022-10759
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Ocean Wind II Marine Site Characterization Surveys, New Jersey
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
May 19, 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 IHA to Ocean Wind II, LLC (Ocean Wind II), an affiliate of Orsted Wind Power North America LLC (Orsted), to incidentally harass, by Level B harassment, marine mammals during marine site characterization surveys off New Jersey in and around the area of Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf Lease Area (OCS)-A 0532. We note that the Federal Register notice of proposed IHA (87 FR 14823; March 16, 2022) refers to the applicant as "Ocean Wind, LLC." This was an error on NMFS' part and the correct name ("Ocean Wind II, LLC") is used herein.
Full Text
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<title>Federal Register, Volume 87 Issue 97 (Thursday, May 19, 2022)</title>
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[Federal Register Volume 87, Number 97 (Thursday, May 19, 2022)]
[Notices]
[Pages 30453-30474]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-10759]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XB896]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Ocean Wind II Marine Site
Characterization Surveys, New Jersey
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an IHA to Ocean Wind II, LLC (Ocean Wind II), an
affiliate of Orsted Wind Power North America LLC (Orsted), to
incidentally harass, by Level B harassment, marine mammals during
marine site characterization surveys off New Jersey in and around the
area of Commercial Lease of Submerged Lands for Renewable Energy
Development on the Outer Continental Shelf Lease Area (OCS)-A 0532. We
note that the Federal Register notice of proposed IHA (87 FR 14823;
March 16, 2022) refers to the applicant as ``Ocean Wind, LLC.'' This
was an error on NMFS' part and the correct name (``Ocean Wind II,
LLC'') is used herein.
DATES: The Authorization is effective from May 10, 2022 through May 9,
2023.
FOR FURTHER INFORMATION CONTACT: Jaclyn Daly, Office of Protected
Resources, NMFS, (301) 427-8401. An electronic copy of the IHA and
supporting documents may be obtained online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. In 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
[[Page 30454]]
commercial fishing) within a specified geographical region if certain
findings are made and either regulations are issued or, if the taking
is limited to harassment, a notice of a proposed incidental take
authorization may be provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth. The definitions
of all applicable MMPA statutory terms cited above are included in the
relevant sections below.
Summary of Request
On October 1, 2021, NMFS received a request from Ocean Wind II for
an IHA to take marine mammals incidental to marine site
characterization surveys off of New Jersey in the area of Commercial
Lease of Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf Lease Area OCS-A 0532 (Lease Area) and potential
export cable routes (ECRs) to landfall locations in New Jersey.
Following NMFS review of the draft application, a revised version was
submitted on November 24, 2021 and again on January 24, 2022. The
January 2022 revised version was deemed adequate and complete on
February 8, 2022. Ocean Wind II's request is for take of 16 species of
marine mammals, by Level B harassment only. Neither Ocean Wind II nor
NMFS expects serious injury or mortality to result from this activity
and, therefore, an IHA is appropriate.
NMFS previously issued an IHA to Ocean Wind, LLC (Ocean Wind) for
similar work in the same general geographic area on June 8, 2017 (82 FR
31562; July 7, 2017) with effective dates from June 8, 2017, through
June 7, 2018 and on May 10, 2021 (86 FR 26465, May 14, 2021) with
effective dates from May 10, 2021 through May 9, 2022. Ocean Wind
complied with all the requirements (e.g., mitigation, monitoring, and
reporting) of the 2017-2018 IHA. Because Ocean Wind's current IHA is
still effective, we have not yet received the associated monitoring
report. Please note that Ocean Wind and Ocean Wind II are both
affiliates of Orsted Wind Power North America LLC, with operations
occurring in the same general area.
This IHA for Ocean Wind II is effective May 10, 2022 through May 9,
2023. There are no changes from the proposed IHA to the final IHA.
Description of Proposed Activity
Overview
As part of its overall marine site characterization survey
operations, Ocean Wind II proposes to conduct high-resolution
geophysical (HRG) surveys in the Lease Area and along potential ECRs to
landfall locations in New Jersey.
The purpose of the marine site characterization surveys are to
obtain an assessment of seabed (geophysical, geotechnical, and
geohazard), ecological, and archeological conditions within the
footprint of a planned offshore wind facility development area. Surveys
are also conducted to support engineering design and to map unexploded
ordnance. Underwater sound resulting from Ocean Wind II's proposed site
characterization survey activities, specifically HRG surveys, has the
potential to result in incidental take of marine mammals in the form of
Level B behavioral harassment.
Dates and Duration
Site characterization surveys considered under this application are
expected to occur between May 10, 2022 and May 9, 2023 with a total of
275 survey days. A survey day is defined here as a 24-hour activity
period. 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 covers, on average,
70 line km per 24 hours of operations.
Specific Geographic Region
The proposed survey activities will occur within the Project Area
which includes the Lease Area and potential ECRs, as shown in Figure 1.
The Lease Area is approximately 343.8 square kilometers (km\2\) and is
within the New Jersey wind energy area (WEA) of the Bureau of Ocean
Energy Management's Mid-Atlantic planning area. Water depths in the
Lease Area range from 15 meters (m) to 35 m, and the potential ECRs
extend from the shoreline to approximately 40 m depth.
BILLING CODE 3510-22-P
[[Page 30455]]
[GRAPHIC] [TIFF OMITTED] TN19MY22.001
BILLING CODE 3510-22-C
Detailed Description of Specific Activity
Ocean Wind II plans to conduct HRG survey operations, including
multibeam depth sounding, seafloor imaging, and shallow and medium
penetration sub-bottom profiling. The HRG surveys may be conducted
using any or all of the following equipment types: Side scan sonar,
multibeam echosounder, magnetometers and gradiometers, parametric sub-
bottom profiler (SBP), compressed high intensity radar pulse (CHIRP)
SBP, boomers, or sparkers.
[[Page 30456]]
Ocean Wind II assumes that HRG survey operations would be conducted 24
hours per day, with an assumed daily survey distance of 70 km. Vessels
would generally conduct survey effort at a transit speed of
approximately 4 knots (kn), which equates to 110 km per 24-hr period.
However, based on past survey experience (i.e., knowledge of typical
daily downtime due to weather, system malfunctions, etc.) Ocean Wind II
assumes 70 km as the average daily distance. On this basis, a total of
275 survey days are expected. In certain shallow-water areas, vessels
may conduct survey effort during daylight hours only, with a
corresponding assumption that the daily survey distance would be halved
(35 km). However, for purposes of analysis all survey days are assumed
to cover the maximum 70 km. A maximum of two vessels would operate
concurrently in areas where 24-hr operations would be conducted, with
an additional third vessel potentially conducting daylight-only survey
effort in shallow-water areas.
Acoustic sources planned for use during HRG survey activities
proposed by Ocean Wind II include the following:
<bullet> Shallow penetration, non-impulsive, 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 signals
covering a frequency sweep from approximately 2 to 20 kilohertz (kHz)
over time. The frequency range can be adjusted to meet project
variables. These sources are typically mounted on a pole rather than
towed, reducing the likelihood that an animal would be exposed to the
signal.
<bullet> Medium penetration, impulsive sources (i.e., boomers and
sparkers) are used to map deeper subsurface stratigraphy. A boomer is a
broadband source operating in the 3.5 Hertz (Hz) to 10 kHz frequency
range. Sparkers create omnidirectional acoustic pulses from 50 Hz to 4
kHz. These sources are typically towed behind the vessel.
Operation of the following survey equipment types is not expected
to present reasonable risk of marine mammal take, and will not be
discussed further beyond the brief summaries provided below.
<bullet> Non-impulsive, parametric SBPs are used for providing high
data density in sub-bottom profiles that are typically required for
cable routes, very shallow water, and archaeological surveys. These
sources generate short, very narrow-beam (1[deg] to 3.5[deg]) signals
at high frequencies (generally around 85-100 kHz). The narrow beamwidth
significantly reduces the potential that a marine mammal could be
exposed to the signal, while the high frequency of operation means that
the signal is rapidly attenuated in seawater. These sources are
typically deployed on a pole rather than towed behind the vessel.
<bullet> Acoustic corers are seabed-mounted sources with three
distinct sound sources: A high-frequency parametric sonar, a high-
frequency CHIRP sonar, and a low-frequency CHIRP sonar. The beamwidth
is narrow (3.5[deg] to 8[deg]) and the source is operated roughly 3.5
meter (m) above the seabed with the transducer pointed directly
downward.
<bullet> Ultra-short baseline (USBL) positioning systems are used
to provide high accuracy ranges by measuring the time between the
acoustic pulses transmitted by the vessel transceiver and a transponder
(or beacon) necessary to produce the acoustic profile. It is a two-
component system with a pole-mounted transceiver and one or several
transponders mounted on other survey equipment. USBLs are expected to
produce extremely small acoustic propagation distances in their typical
operating configuration.
<bullet> Multibeam echosounders (MBESs) are used to determine water
depths and general bottom topography. The proposed MBESs all have
operating frequencies >180 kHz and are therefore outside the general
hearing range of marine mammals.
<bullet> Side scan sonars (SSS) are used for seabed sediment
classification purposes and to identify natural and man-made acoustic
targets on the seafloor. The proposed SSSs all have operating
frequencies >180 kHz and are therefore outside the general hearing
range of marine mammals.
Table 1 identifies representative survey equipment with the
expected potential to result in exposure of marine mammals and
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.
Table 1--Summary of Representative HRG Equipment
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SLrms (dB SL0-pk (dB Pulse
Operating frequency re 1 re 1 Duration Repetition Beamwidth CF = Crocker and
Equipment (kHz) [micro]Pa [micro]Pa (width) rate (Hz) (degrees) Fratantonio (2016), MAN
m) m) (millisecond) = manufacturer
--------------------------------------------------------------------------------------------------------------------------------------------------------
Non-parametric shallow penetration SBPs (non-impulsive)
--------------------------------------------------------------------------------------------------------------------------------------------------------
ET 216 (2000DS or 3200 top unit)... 2-16, 2-8............. 195 - 20 6 24 MAN
ET 424 3200-X...................... 4-24.................. 176 - 3.4 2 71 CF
ET 512i............................ 0.7-12................ 179 - 9 8 80 CF
GeoPulse 5430A..................... 2-17.................. 196 - 50 10 55 MAN
Teledyne Benthos Chirp III--TTV 170 2-7................... 197 - 60 15 100 MAN
Pangeo SBI......................... 4.5-12.5.............. 188 - 4.5 45 120 MAN
--------------------------------------------------------------------------------------------------------------------------------------------------------
Medium penetration SBPs (impulsive)
--------------------------------------------------------------------------------------------------------------------------------------------------------
AA, Dura-spark UHD (400 tips, 500 0.3-1.2............... 203 211 1.1 4 Omni CF
J) \1\.
AA, Dura-spark UHD Sparker Model 0.3-1.2............... 203 211 1.1 4 Omni CF
400 x 400 \1\.
GeoMarine, Dual 400 Sparker, Model 0.4-5................. 203 211 1.1 4 Omni CF
Geo-Source 800 \1\.
GeoMarine Sparker, Model Geo-Source 0.3-1.2............... 203 211 1.1 4 Omni CF
200-400 \1\.
GeoMarine Sparker, Model Geo-Source 0.3-1.2............... 203 211 1.1 4 Omni CF
200 Lightweight \1\.
AA, triple plate S-Boom (700-1,000 0.1-5................. 205 211 0.6 4 80 CF
J) \2\.
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- = not applicable; [mu]Pa = micropascal; AA = Applied Acoustics; dB = decibel; ET = EdgeTech; J = joule; Omni = omnidirectional source; re = referenced
to; PK = zero-to-peak sound pressure level; SL = source level; SPL = root-mean-square sound pressure level; UHD = ultra-high definition.
\1\ The Dura-spark measurements and specifications provided in Crocker and Fratantonio (2016) were used for all sparker systems proposed for the survey.
These include variants of the Dura-spark sparker system and various configurations of the GeoMarine Geo-Source sparker system. The data provided in
Crocker and Fratantonio (2016) represent the most applicable data for similar sparker systems with comparable operating methods and settings when
manufacturer or other reliable measurements are not available.
[[Page 30457]]
\2\ Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP-D700 and CSP-N). The CSP-D700 power source was
used in the 700 J measurements but not in the 1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted
in a lower SL; therefore, the single maximum SL value was used for both operational levels of the S-Boom.
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' proposal to issue an IHA to Ocean Wind II was
published in the Federal Register on March 16, 2022 (87 FR 14823). That
proposed notice described, in detail, Ocean Wind II'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.
NMFS received 8 comment letters on the proposed IHA; 2 from
environmental non-governmental organizations (eNGOs) (Oceana, Inc. and
Clean Ocean Action (COA)) and 6 letters from students at the University
of New England School of Marine and Environmental Programs. The letters
from the students expressed general support for wind farm construction;
however, the IHA pertains to site assessment surveys. Hence,
construction of the wind farm, and the associated comments, is outside
the scope of NMFS' action considered herein. We do not specifically
address comments related to impacts on marine mammals or their prey
from potential future wind farm construction. Some student letters also
suggested changes to the MMPA itself, which is also outside the scope
of NMFS' proposed action here. All substantive comments related to the
proposed action (i.e., issuance of take associated with Ocean Wind II's
site assessment surveys), and NMFS' responses, are provided below, and
the letters are available online at: <a href="http://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-0">www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-0</a>). Please review the letters for full details regarding the
comments and underlying justification.
Comment 1: Oceana made comments objecting to NMFS' renewal process
regarding the extension of any one-year IHA with a truncated 15-day
public comment period, and suggested an additional 30-day public
comment period is necessary for any renewal request.
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
March 16, 2022 (87 FR 14823) 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 2: Oceana and COA remarked that NMFS must utilize the best
available science. The commenters further suggest that NMFS has not
done so, specifically referencing information regarding the North
Atlantic right whale (NARW) such as updated population estimates and
recent habitat usage patterns in Ocean Wind II's survey area. The
commenters specifically asserted that NMFS is not using the best
available science with regards to the NARW population estimate and
state that NMFS should be using the 336 estimate presented in the
recent NARW Report Card (<a href="https://www.narwc.org/report-cards.html">https://www.narwc.org/report-cards.html</a>).
Response: While NMFS agrees that the best available science should
be used for assessing NARW abundance estimates, we disagree that the
NARW Report Card (Pettis et al., 2022) 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
[[Page 30458]]
proposed IHA, provides the most recent and best available estimate, and
introduced improvements to NMFS' NARW abundance model. Specifically,
Pace (2021) looked at a different way of characterizing annual
estimates of age-specific survival. NMFS considered all relevant
information regarding NARW, including the information cited by the
commenters. However, NMFS relies on the SAR. Recently (after
publication of the notice of proposed IHA), NMFS has updated its
species web page to recognize the population estimate for NARWs is now
below 350 animals (<a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>). We anticipate that this information will be
presented in the draft 2022 SAR. We note that this change in abundance
estimate would not change the estimated take of NARWs or authorized
take numbers, nor affect our ability to make the required findings
under the MMPA for Ocean Wind II'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, stating that NMFS was not appropriately considering relevant
information on this topic. While this survey specifically intersects
migratory habitat for NARWs, year-round ``core'' NARW foraging habitat
(Oleson et al., 2020) located much further north in the southern area
of Martha's Vineyard and Nantucket Islands where both visual and
acoustic detections of NARWs indicate a nearly year-round presence
(Oleson et al., 2020). NMFS notes that prey for NARWs are mobile and
broadly distributed throughout the survey area; therefore, NARW
foraging efforts are not likely to be disturbed given the location of
these planned activities in relation to the broader area that NARWs
migrate through and the northern areas where NARWs primarily forage.
There is ample foraging habitat further north of this survey area that
will not be ensonified by the acoustic sources used by Ocean Wind II,
such as in the Great South Channel and Georges Bank Shelf Break feeding
biologically important area (BIA). Furthermore, and as discussed in the
proposed Notice, the spatial acoustic footprint of the survey is very
small relative to the spatial extent of the available foraging habitat.
Lastly, as we stated in the proposed IHA Federal Register notice
(87 FR 14823, March 16, 2022) any impacts to marine mammals are
expected to be temporary and minor and, given the relative size of the
survey area compared to the overall migratory route leading to foraging
habitat (which is not affected by the specified activity).
Comparatively, the survey area is extremely small (the lease area is
338 km\2\) compared to the size of the NARW migratory BIA (269,448
km\2\). Because of this, and in context of the minor, low-level nature
of the impacts expected to result from the planned survey, such impacts
are not expected to result in disruption to biologically important
behaviors.
Comment 3: Oceana noted that chronic stressors are an emerging
concern for NARW conservation and recovery, and stated that chronic
stress may result in energetic effects for NARWs. Oceana suggested that
NMFS has not fully considered both the use of the area and the effects
of both acute and chronic stressors on the health and fitness of NARWs,
as disturbance responses in NARWs could lead to chronic stress or
habitat displacement, leading to an overall decline in their health and
fitness.
Response: NMFS agrees with Oceana that both acute and chronic
stressors are of concern for NARW conservation and recovery. We
recognize that acute stress from acoustic exposure is one potential
impact of these surveys, and that chronic stress can have fitness,
reproductive, etc. impacts at the population-level scale. NMFS has
carefully reviewed the best available scientific information in
assessing impacts to marine mammals, and recognizes that the surveys
have the potential to impact marine mammals through behavioral effects,
stress responses, and auditory masking. However, NMFS does not expect
that the generally short-term, intermittent, and transitory marine site
characterization survey activities planned by Ocean Wind II 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 determinations
presented in NMFS's negligible impact analyses. Because NARWs generally
use this location in a transitory manner, specifically for migration,
any potential impacts from these surveys are lessened for other
behaviors due to the brief periods where exposure is possible. In
context of these expected low-level impacts, which are not expected to
meaningfully affect important behavior, we also refer again to the
large size of the migratory corridor (BIA of 269,448 km\2\) compared
with the survey area (5,868 km\2\). Thus, the transitory nature of
NARWs at this location means it is unlikely for any exposure to cause
chronic effects as Ocean Wind II'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 Ocean Wind II described survey
activities.
Comment 4: Oceana and COA asserted that NMFS must fully consider
the discrete effects of each activity and the cumulative effects of the
suite of approved, proposed and potential activities on marine mammals
and NARWs in particular and ensure that the cumulative effects are not
excessive before issuing or renewing an IHA.
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
[[Page 30459]]
comments regarding cumulative effects from future, unrelated
activities. There NMFS stated that such effects are not considered in
making findings under section 101(a)(5) concerning negligible impact.
In this case, this IHA, as well as other IHAs currently in effect or
proposed within the specified geographic region, are appropriately
considered an unrelated activity relative to the others. The IHAs are
unrelated in the sense that they are discrete actions under section
101(a)(5)(D), issued to discrete applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of the specified activity or
class of activities that can be expected to result in incidental taking
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, Ocean Wind II 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 Ocean Wind II 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 Ocean Wind II's 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
Ocean Wind's 2017 and 2021 IHAs (82 FR 31562; July 7, 2017 and 86 FR
26465; May 10, 2021), which are substantially similar to those planned
by Ocean Wind II under this current IHA request. This Biological
Opinion determined that NMFS' issuance of IHAs for site
characterization survey activities associated with leasing,
individually and cumulatively, are not likely to adversely affect
listed marine mammals. NMFS notes, that while issuance of this IHA is
covered under a different consultation, this BiOp remains valid and the
surveys currently planned by Ocean Wind II from 2022 to 2023 could have
fallen under the scope of those analyzed previously..
Comment 5: Oceana states that NMFS must make an assessment of which
activities, technologies and strategies are truly necessary to provide
Ocean Wind II the necessary information and identify which are not
critical, asserting that NMFS should prescribe the appropriate survey
techniques. In general, Oceana stated that NMFS must require that all
IHA applicants minimize the impacts of underwater noise to the fullest
extent feasible, including through the use of best available technology
and methods to minimize sound levels from geophysical surveys.
Response: The MMPA requires that an IHA include measures that will
effect the least practicable adverse impact on the affected species and
stocks and, in practice, NMFS agrees that the IHA should include
conditions for the survey activities that will first avoid adverse
effects on NARWs in and around the survey site, where practicable, and
then minimize the effects that cannot be avoided. NMFS has determined
that the IHA meets this requirement to effect the least practicable
adverse impact. Oceana does not make any specific recommendations of
measures to add to the IHA. As part of the analysis for all marine site
characterization survey IHAs, NMFS evaluated the effects expected as a
result of the specified activity, made the necessary findings, and
prescribed mitigation requirements sufficient to achieve the least
practicable adverse impact on the affected species and stocks of marine
mammals. It is not within NMFS' purview to make judgments regarding
what may be appropriate techniques or technologies for an operator's
survey objectives.
Comment 6: 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. That
requirement is included as a requirement of the issued IHA.
Comment 7: Oceana and COA recommended that NMFS restrict all
vessels of all sizes associated with the proposed survey activities to
speeds less than 10 knots (kn) at all times due to the risk of vessel
strikes to NARWs and other large whales.
Response: While NMFS acknowledges that vessel strikes can result in
injury or mortality, we have analyzed the potential for ship strike
resulting from Ocean Wind II' activity and have determined that based
on the nature of the activity and the required mitigation measures
specific to vessel strike avoidance included in the IHA, potential for
vessel strike is so low as to be discountable. These mitigation
measures, most of which were included in the proposed IHA and all of
which are required in the final IHA, include: A requirement that all
vessel operators comply with 10 kn (18.5 km/hour) or less speed
restrictions in any SMA, DMA or Slow Zone while underway, and check
daily for information regarding the establishment of mandatory or
voluntary vessel strike avoidance areas (SMAs, DMAs, Slow Zones) and
information regarding NARW sighting locations; a requirement that all
vessels greater than or equal to 19.8 m in overall length operating
from November 1 through April 30 operate at speeds of 10 kn (18.5 km/
hour) or less; a requirement that all vessel operators reduce vessel
speed to 10 kn (18.5 km/hour) or less when any large whale, any mother/
calf pairs, pods, or large assemblages of non-delphinid cetaceans are
observed near the vessel; a requirement that all survey vessels
maintain a separation distance of 500 m or greater from any ESA-listed
whales or other unidentified large marine
[[Page 30460]]
mammals visible at the surface while underway; a requirement that, if
underway, vessels must steer a course away from any sighted ESA-listed
whale at 10 kn or less until the 500 m minimum separation distance has
been established; a requirement that, if an ESA-listed whale is sighted
in a vessel's path, or within 500 m of an underway vessel, the underway
vessel must reduce speed and shift the engine to neutral; a requirement
that all vessels underway must maintain a minimum separation distance
of 100 m from all non-ESA-listed baleen whales; and a requirement that
all vessels underway must, to the maximum extent practicable, attempt
to maintain a minimum separation distance of 50 m from all other marine
mammals, with an understanding that at times this may not be possible
(e.g., for animals that approach the vessel). We have determined that
the ship strike avoidance measures in the IHA are sufficient to ensure
the least practicable adverse impact on species or stocks and their
habitat. Furthermore, no documented vessel strikes have occurred for
any marine site characterization surveys which were issued IHAs from
NMFS during the survey activities themselves or while transiting to and
from survey sites.
Comment 8: 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 9: 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 Ocean Wind II, 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 10: 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 Ocean Wind II, the vessel operators, the
lead PSO, and any other relevant designees of Ocean Wind II operating
under the authority of this IHA. The IHA also states that Ocean Wind II
must ensure that the vessel operator and other relevant vessel
personnel, including the Protected Species Observer (PSO) team, are
briefed on all responsibilities, communication procedures, marine
mammal monitoring protocols, operational procedures, and IHA
requirements prior to the start of survey activity, and when relevant
new personnel join the survey operations.
Comment 11: Oceana stated that the IHA must include a requirement
for all phases of the Ocean Wind II site characterization to subscribe
to the highest level of transparency, including frequent reporting to
federal agencies, requirements to report all visual and acoustic
detections of NARWs and any dead, injured, or entangled marine mammals
to NMFS or the Coast Guard as soon as possible and no later than the
end of the PSO shift. Oceana states that to foster stakeholder
relationships and allow public engagement and oversight of the
permitting, the IHA should require all reports and data to be
accessible on a publicly available website.
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. Ocean Wind II 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, Ocean Wind
II must immediately report sighting information to the NMFS NARW
Sighting Advisory System and to the U.S. Coast Guard, and that any
discoveries of injured or dead marine mammals be reported by Ocean Wind
II 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 12: Oceana recommended increasing the Exclusion Zone to
1,000 m for NARWs.
Response: NMFS notes that the 500 m Exclusion Zone for NARWs
exceeds the modeled distance to the largest 160 dB Level B harassment
isopleth distance (141 m during sparker use) by a substantial margin.
Oceana does 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 13: Oceana recommended that NMFS should require PAM at all
times to maximize the probability of detection for NARWs.
Response: Oceana does 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
[[Page 30461]]
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 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 (see 86 FR 21289, April 22, 2021 and 87 FR 13975,
March 11, 2022 for examples).
Comment 14: 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 4200, January 27,
2022), and which are included in the final IHA, including the
stipulation that geophysical survey equipment must be immediately shut
down if any marine mammal is observed within or entering the relevant
Exclusion Zone while geophysical survey equipment is operational. There
is no exemption for the shutdown requirement. In regards to reporting,
Ocean Wind II must notify NMFS if a NARW is observed at any time by any
survey vessels during surveys or during vessel transit. Additionally,
Ocean Wind II 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 NARW is detected within
the Exclusion Zone before a shutdown is implemented, the NARW and its
distance from the sound source, including if it is within the Level B
harassment zone, would be reported in Ocean Wind II's final monitoring
report and made publicly available on NMFS' website. Ocean Wind II 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 15: 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 (March 16, 2022, 87 FR
14823) and this final IHA a stipulation that when technically feasible,
survey equipment must be ramped up at the start or restart of survey
activities. Ramp-up must begin with the power of the smallest acoustic
equipment at its lowest practical power output appropriate for the
survey. When technically feasible the power must then be gradually
turned up and other acoustic sources added in a way such that the
source level would increase gradually. NMFS notes that ramp-up would
not be required for short periods where acoustic sources were shut down
(i.e., less than 30 minutes) if PSOs have maintained constant visual
observation and no detections of marine mammals occurred within the
applicable Exclusion Zones.
Comment 16: COA asserted that Level A harassment may occur, and
that this was not accounted for in the proposed Notice.
Response: NMFS acknowledges the concerns brought up by the
commenters regarding the potential for Level A harassment of marine
mammals. However, no Level A harassment is expected to result, even in
the absence of mitigation, given the characteristics of the sources
planned for use. This is additionally supported by the required
mitigation and very small estimated Level A harassment zones.
Furthermore, the commenters do not provide any persuasive support for
the apparent
[[Page 30462]]
contention that Level A harassment is a potential outcome of these
activities.
NMFS acknowledges that sufficient disruption of behavioral patterns
could theoretically, likely in connection with other stressors, result
in a reduction in fitness and ultimately injury or mortality. However,
such an outcome could likely result only from repeated disruption of
important behaviors at critical junctures, or sustained displacement
from important habitat with no associated compensatory ability. NMFS
has thoroughly analyzed the potential effects of noise exposure
resulting from the specified activity and, as discussed in the notice
of proposed IHA (see Potential Effects of Specified Activities on
Marine Mammals and Their Habitat) and in this notice (see Negligible
Impact Analysis and Determination), no such effects are reasonably
anticipated to occur as a result of this activity. Therefore, no such
outcome is expected as a result of these surveys. NMFS considers this
category of survey operations to be near de minimis, with the potential
for Level A harassment for any species to be discountable. Please refer
also to NMFS' responses to comments 3, 4, and 8.
Comment 17: COA is concerned that habitat displacement could
significantly increase the risk of ship-strike to NARWs from outside
the survey area.
Response: NMFS does not anticipate that NARWs would be displaced
from the area where Ocean Wind II's marine site characterization
surveys would occur, and COA does not provide evidence that this effect
should be a reasonably anticipated outcome of the specified activity.
Similarly, NMFS is not aware of any scientific information suggesting
that the survey activity would drive marine mammals into shipping
lanes, and disagrees that this would be a reasonably anticipated effect
of the specified activities. The take by Level B harassment authorized
by NMFS is precautionary but considered unlikely, as NMFS' take
estimation process does not account for the use of extremely
precautionary mitigation measures, e.g., the requirement for Ocean Wind
II to implement a Shutdown Zone that is more than 3 times as large as
the estimated harassment zone. These requirements are expected to
largely eliminate the actual occurrence of Level B harassment events
and, to the extent that harassment does occur, would minimize the
duration and severity of any such events. Therefore, even if a NARW was
in the area of the cable corridor surveys, a displacement impact is not
anticipated.
Although the primary stressor to marine mammals from the specified
activities is acoustic exposure to the sound source, NMFS takes
seriously the risk of vessel strike and has prescribed measures
sufficient to avoid the potential for ship strike to the extent
practicable. NMFS has required these measures despite a very low
likelihood of vessel strike; vessels associated with the survey
activity will add a discountable amount of vessel traffic to the
specific geographic region and, furthermore, vessels towing survey gear
travel at very slow speeds (i.e., roughly 4-5 kn).
Comment 18: COA is concerned regarding the number of species that
could be impacted by the activities, as well as a lack of baseline data
being available for harbor seals in the area. In addition, COA has
stated that NMFS did not adequately address the potential for
cumulative impacts to bottlenose dolphins from Level B harassment over
several years of project activities.
Response: We appreciate the concern expressed by COA. NMFS utilizes
the best available science when analyzing which species may be impacted
by an applicant's proposed activities. Based on information found in
the scientific literature, as well as based on density models developed
by Duke University, all marine mammal species included in the proposed
Federal Register Notice have some likelihood of occurring in Ocean Wind
II's survey areas. Furthermore, the MMPA requires us to evaluate the
effects of the specified activities in consideration of the best
scientific evidence available and, if the necessary findings are made,
to issue the requested take authorization. The MMPA does not allow us
to delay decision making in hopes that additional information may
become available in the future.
NMFS notes that it has previously addressed discussions on
cumulative impact analyses in previous comments and references COA back
to these specific responses in this Notice. The amount of take
authorized in the IHA meets the MMPA's small numbers requirement for
dolphins (see Small Numbers section).
Regarding the lack of baseline information cited by COA, with
specific concern pointed out for harbor seals, NMFS points towards two
sources of information for marine mammal baseline information: The
Ocean/Wind Power Ecological Baseline Studies, January 2008-December
2009 completed by the New Jersey Department of Environmental Protection
in July 2010 (<a href="https://dspace.njstatelib.org/xmlui/handle/10929/68435">https://dspace.njstatelib.org/xmlui/handle/10929/68435</a>)
and the Atlantic Marine Assessment Program for Protected Species
(AMAPPS; <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected">https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected</a>)
with annual reports available from 2010 to 2020 (<a href="https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species">https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species</a>) that cover the areas across the
Atlantic Ocean. NMFS has duly considered this and all available
information.
Based on the information presented, NMFS has determined that no new
information has become available, nor do the commenters present
additional information, that would change our determinations since the
publication of the proposed notice.
Comment 19: One commenter suggested that the amount of authorized
NARWs takes should be limited to 0.7 instead of the 11 takes proposed
for authorization.
Response: The commenter cites Ocean Wind II's application when
stating that only 0.7 are allowed to be ``taken from the environment.''
NMFS believes the commenter is referring to the potential biological
removal (PBR) value in the draft 2021 SAR for NARWs. The commenter
appears mistaken in equating the PBR value to the maximum amount of
take that NMFS may authorize. 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. That is, PBR represents
the amount of mortality and/or serious injury a population can
withstand while allowing that stock to reach or maintain the maximum
productivity of the population. Ocean Wind II did not request, nor is
NMFS authorizing any mortality or serious injury of NARWs. The take
authorized is limited to Level B (behavioral) harassment. NMFS has
authorized 11 takes of NARWs by Level B harassment and has found that
the taking will result in no greater than a negligible impact to the
NARW stock (i.e., the specified activity will not adversely affect the
species through effects on annual rates of recruitment and/or
survival).
Comment 20: One commenter suggested the IHA should not be issued at
this time because they believe there is a lack of research on NARW
prey.
Response: While much of this commenter's letter focused on wind
farm construction, NMFS addresses this comment as though applicable to
the site assessment surveys considered here.
[[Page 30463]]
We note first that the region where this survey is located is not a
significant feeding area for NARW. Primary feeding areas for the
species are located further to the north, with the most important use
of this area for NARW being as a migratory pathway. However, we further
address this comment in general, as other mysticete species occur in
the region and in order to thoroughly address the commenter's concern.
NMFS disagrees with the suggestion that we did not adequately
consider the potential for effects to prey species. In fact, we
considered relevant literature in finding that the most likely impact
of survey activity to prey species such as fish and invertebrates would
be temporary avoidance of an area, with a rapid return to pre-survey
distribution and behavior, and minimal impacts to recruitment or
survival anticipated. While there is a lack of specific scientific
information to allow an assessment of the duration, intensity, or
distribution of effects to prey in specific locations at specific times
and in response to specific surveys, the MMPA specifies that the ``best
available data'' must be used and NMFS' review of the available
information does not indicate that such effects could be significant
enough to impact marine mammal prey to the extent that marine mammal
fitness would be affected. We addressed the potential for effects to
prey, as well as the potential for those effects to impact marine
mammal populations, in our notice of proposed IHA (87 FR 14823, March
16, 2022). As stated in that notice, our review of the available
information and the specific nature of the activities considered herein
suggest that the activities are not likely to have more than short-term
adverse effects (if any) on any prey habitat or populations of prey
species. Further, any impacts to prey species are not expected to
result in significant or long-term consequences for individual marine
mammals, or to contribute to adverse impacts on their populations.
Additional information relevant to the commenter's specific concern
related to NARW prey is summarized below.
With regard to potential impacts on zooplankton (i.e., NARW prey),
McCauley et al. (2017) found that exposure to noise from airguns (a
sound source with significantly more intense sound output than the
sources considered herein, with correspondingly greater potential for
impacts to marine mammal prey) resulted in significant depletion for
more than half the taxa present and that there were two to three times
more dead zooplankton after airgun exposure compared with controls for
all taxa, within 1 km of the airguns. However, the authors also stated
that in order to have significant impacts on r-selected species (i.e.,
those with high growth rates and that produce many offspring) such as
plankton, the spatial or temporal scale of impact must be large in
comparison with the ecosystem concerned, and it is possible that the
findings reflect avoidance by zooplankton rather than mortality
(McCauley et al., 2017). In addition, the results of this study are
inconsistent with a large body of research that generally finds limited
spatial and temporal impacts to zooplankton as a result of exposure to
airgun noise (e.g., Dalen and Knutsen, 1987; Payne, 2004; Stanley et
al., 2011). Most prior research on this topic, which has focused on
relatively small spatial scales, has showed minimal effects (e.g.,
Kostyuchenko, 1973; Booman et al., 1996; S[aelig]tre and Ona, 1996;
Pearson et al., 1994; Bolle et al., 2012).
A modeling exercise was conducted as a follow-up to the McCauley et
al. (2017) study (as recommended by McCauley et al.), in order to
assess the potential for impacts on ocean ecosystem dynamics and
zooplankton population dynamics (Richardson et al., 2017). Richardson
et al. (2017) found that a full-scale airgun survey would impact
copepod abundance within the survey area, but that effects at a
regional scale were minimal (2 percent decline in abundance within 150
km of the survey area and effects not discernible over the full
region). The authors also found that recovery within the survey area
would be relatively quick (3 days following survey completion), and
suggest that the quick recovery was due to the fast growth rates of
zooplankton, and the dispersal and mixing of zooplankton from both
inside and outside of the impacted region.
Notably, a more recent study produced results inconsistent with
those of McCauley et al. (2017). Researchers conducted a field and
laboratory study to assess if exposure to airgun noise affects
mortality, predator escape response, or gene expression of the copepod
Calanus finmarchicus (Fields et al., 2019). Immediate mortality of
copepods was significantly higher, relative to controls, at distances
of 5 m or less from the airguns. Mortality one week after the airgun
blast was significantly higher in the copepods placed 10 m from the
airgun but was not significantly different from the controls at a
distance of 20 m from the airgun. The increase in mortality, relative
to controls, did not exceed 30 percent at any distance from the airgun.
Moreover, the authors caution that even this higher mortality in the
immediate vicinity of the airguns may be more pronounced than what
would be observed in free-swimming animals due to increased flow speed
of fluid inside bags containing the experimental animals. There were no
sublethal effects on the escape performance or the sensory threshold
needed to initiate an escape response at any of the distances from the
airgun that were tested. Whereas McCauley et al. (2017) reported an SEL
of 156 dB at a range of 509-658 m, with zooplankton mortality observed
at that range, Fields et al. (2019) reported an SEL of 186 dB at a
range of 25 m, with no reported mortality at that distance.
Note that the sound sources planned for use in Ocean Wind II's
survey activities would result in significantly lesser potential for
impacts to zooplankton than was observed in the studies described
above. Further, given the typically wide dispersal of survey vessels
and brief time to regeneration of the potentially affected zooplankton
populations, we do not expect any meaningful follow-on effects to the
prey base from Ocean Wind II's survey activities. Nevertheless, we
provided the additional information above to clarify NMFS's evaluation
of all potentially relevant information in our analysis of potential
impacts to prey, including NARW prey.
Comment 21: One commenter suggested the IHA does not contain
adequate mitigation measures with respect to vessel strike avoidance
measures and there should be assurances to the public these measures
are being implemented.
Response: We understand the commenter to be concerned that if Ocean
Wind II does not comply with the vessel strike avoidance measures in
the IHA, there may be no mechanisms by which to be aware of such
violations. NMFS reiterates that (1) no vessel strike is anticipated to
occur as a result of this survey activity; (2) the issued IHA contains
appropriate reporting mechanisms in reflection of the potential for an
unanticipated strike to occur; and (3) any unauthorized take that
occurs is in violation of the MMPA. We refer the reader to our
responses to comments 8 and 12 above.
Comment 22: One commenter suggested that the proposed exclusion
zone (i.e., shutdown zone) is inconsistent with BOEM's ``standard''
marine mammal exclusion zone of 200 m.
Response: The commenter referenced a BOEM website for oil and gas
exploration when suggesting that the standard EZ is 200 m. The
referenced web page also appears outdated as it
[[Page 30464]]
references a decision document issued by BOEM in July 2014. Hence the
website cited by the commenter is not applicable to Ocean Wind II's
survey activities. Regardless, NMFS prescribes mitigation appropriate
to achieve the least practicable adverse impact on the affected species
or stocks of marine mammals, as required by the MMPA, and has
conditioned the IHA in a manner identical to several previously issued
offshore wind HRG IHAs and in accordance with the ESA informal
consultation relevant to this action (NMFS, 2021 (revised September
2021)).
Comment 23: One commenter questioned why manatees were discussed in
Ocean Wind II's application and why there were no takes of manatees
estimated.
Response: The manatee is managed by the U.S. Fish and Wildlife
Service. Hence, NMFS has no jurisdiction over the manatee and cannot
authorize take for that species.
Changes From the Proposed IHA to Final IHA
There were no changes from proposed IHA to final IHA. NMFS notes
that the draft IHA that was posted to our website for review during the
30-day public comment period contained an erroneous amount of take for
some species; however, the take for all species was correctly
identified in the Federal Register notice of proposed IHA (87 FR 14823,
March 16). No comments received were related to the take amounts
identified in the draft IHA.
As discussed in the Summary section, NMFS erroneously referred to
the applicant as ``Ocean Wind, LLC'' in the notice of proposed IHA.
Here, we correct that reference to ``Ocean Wind II, LLC.''
Since publication of the Notice of proposed IHA, NMFS has
acknowledged that the population estimate of NARWs is now under 350
animals (<a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>). However, as discussed in our response to Comment #2 above, NMFS
has determined that this change in abundance estimate would not change
the estimated take of NARWs or authorized take numbers, nor affect our
ability to make the required findings under the MMPA for the Ocean Wind
II 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' Stock Assessment Reports (SARs; <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website
(<a href="http://www.fisheries.noaa.gov/find-species">www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species or stocks for which take is expected and
proposed to be 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, NMFS follows 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' SARs). While no
mortality is anticipated or would be authorized here, PBR and annual
serious injury and mortality from anthropogenic sources are included 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' 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' U.S. Atlantic and Gulf of Mexico SARs. All values presented in
Table 2 are the most recent available at the time of publication and
are available in the Draft 2021 SARs (Hayes et al., 2021), available
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>.
Table 2--Marine Mammal Species Likely To Occur Near the Project Area That May Be Affected by Ocean Wind II'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:
NARW............................ Eubalaena glacialis.... Western North Atlantic E/D; Y 368 \5\ (0; 364; 2019) 0.7 7.7
(WNA).
Family Balaenopteridae (rorquals):
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -/-; Y 1,393 (0.15; 1,375; 22 58
2016).
Fin whale....................... Balaenoptera physalus.. WNA.................... E/D; Y 6,802 (0.24; 5,573; 11 2.35
2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E/D; Y 6,292 (1.02; 3,098; 6.2 1.2
2016).
Minke whale..................... Balaenoptera Canadian East Coast.... -/-; N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. North Atlantic......... E/D; Y 4,349 (0.28; 3,451; 3.9 0
2016).
Family Delphinidae:
Long-finned pilot whale......... Globicephala melas..... WNA.................... -/-; N 39,215 (0.30; 30,627; 306 29
2016).
Short finned pilot whale........ Globicephala WNA.................... -/-; N 28,924 (0.24; 23,637; 236 136
Bottlenose dolphin.............. macrorhynchus. WNA Offshore........... -/-; N 2016). 519 28
Tursiops truncatus..... 62,851 (0.23; 51,914;
2016).
WNA Northern Migratory -/D;Y 6,639 (0.41, 4,759, 48 12.2-21.5
Coastal. 2016).
Common dolphin.................. Delphinus delphis...... WNA.................... -/-; N 172,974 (0.21; 1,452 390
145,216; 2016).
[[Page 30465]]
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. WNA.................... -/-; N 93,233 (0.71; 54,443; 544 27
2016).
Atlantic spotted dolphin........ Stenella frontalis..... WNA.................... -/-; N 39,921 (0.27; 32,032; 320 0
2016).
Risso's dolphin................. Grampus griseus........ WNA.................... -/-; N 35,215 (0.19; 30,051; 303 54.3
2016).
Family Phocoenidae (porpoises):
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -/-; N 95,543 (0.31; 74,034; 851 164
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray seal \4\................... Halichoerus grypus..... WNA.................... -/-; N 27,300 (0.22; 22,785, 1,458 4,453
2029).
Harbor seal..................... Phoca vitulina......... WNA.................... -/-; N 61,336 (0.08; 57,637, 1,729 339
2020).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>. CV
is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
fisheries, ship strike).
\4\ NMFS' gray seal stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in
Canada) is approximately 451,600. The annual M/SI value given is for the total stock.
\5\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species web page to recognize the population estimate for NARWs is now
below 350 animals (<a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>).
A detailed description of the species likely to be affected by
Ocean Wind II's activities, including information regarding population
trends and threats, and local occurrence, were provided in the Federal
Register notice for the proposed IHA (87 FR 14823, March 16). Since
that time, we are not aware of any changes in the status of these
species and stocks or other relevant new information; therefore,
detailed descriptions are not provided here. Please refer to that
Federal Register notice for those descriptions. Please also refer to
NMFS's website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for
generalized species accounts.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in Table 3.
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).
[[Page 30466]]
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).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Sixteen marine mammal species (14 cetacean and 2 pinniped (both phocid)
species) have the reasonable potential to co-occur with the proposed
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), eight are classified as mid-frequency
cetaceans (i.e., all delphinid species and the sperm whale), and one is
classified as a high-frequency cetacean (i.e., harbor porpoise).
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from the deployed acoustic sources
have the potential to result in behavioral harassment of marine mammals
in the vicinity of the study area. The Federal Register notice for the
proposed IHA (87 FR 14823; March 16, 2022) included a discussion of the
effects of anthropogenic noise, ship strike, stress, and potential
impacts on marine mammals and their habitat, therefore that information
is not repeated here; please refer to the Federal Register notice for
that information.
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through this IHA, which will inform both NMFS' consideration
of ``small numbers'' and the negligible impact determination.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes would be by Level B harassment only, in the form
of disruption of behavioral patterns for individual marine mammals
resulting from exposure to noise from certain HRG acoustic sources.
Based primarily on the characteristics of the signals produced by the
acoustic sources planned for use, Level A harassment is neither
anticipated (even absent mitigation), nor has any been authorized.
Consideration of the anticipated effectiveness of the mitigation
measures (i.e., exclusion zones and shutdown measures), discussed in
detail below in the Mitigation section, further strengthens the
conclusion that Level A harassment is not a reasonably anticipated
outcome of the survey activity. As described previously, no serious
injury or mortality is anticipated or proposed to be authorized for
this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and, (4)
and the number of days of activities. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of takes, additional information that can qualitatively
inform take estimates is also sometimes available (e.g., previous
monitoring results or average group size). Below, we describe the
factors considered here in more detail and present the take estimates.
Acoustic Thresholds
NMFS uses acoustic thresholds that identify the received level of
underwater sound above which exposed marine mammals would be reasonably
expected to be behaviorally harassed (equated to Level B harassment) or
to incur PTS of some degree (equated to Level A harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source (e.g., frequency, predictability, duty cycle), the environment
(e.g., bathymetry), and the receiving animals (hearing, motivation,
experience, demography, behavioral context) and can be difficult to
predict (Southall et al., 2007; Ellison et al., 2012). NMFS uses a
generalized acoustic threshold based on received level to estimate the
onset of behavioral harassment. NMFS predicts that marine mammals may
be behaviorally harassed (i.e., Level B harassment) when exposed to
underwater anthropogenic noise above received levels of 160 dB re 1
[mu]Pa (rms) for the impulsive sources (i.e., boomers, sparkers) and
non-impulsive, intermittent sources (e.g., CHIRP SBPs) evaluated here
for Ocean Wind II's activity.
Level A Harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive). For more
information, see NMFS' 2018 Technical Guidance, which may be accessed
at <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Ocean Wind II's activity includes the use of impulsive (i.e.,
sparkers and boomers) and non-impulsive (e.g., CHIRP SBP) sources.
However, as discussed above, NMFS has concluded that Level A harassment
is not a reasonably likely outcome for marine mammals exposed to noise
through use of the sources proposed for use here, and the potential for
Level A harassment is not evaluated further in this document. Please
see Ocean Wind II's application for details of a quantitative exposure
analysis exercise, i.e., calculated Level A harassment isopleths and
estimated Level A harassment exposures. Maximum estimated Level A
harassment isopleths were less than 5 m for all sources and hearing
groups with the exception of an estimated 18 m and 21 m zone calculated
for high-frequency cetaceans during use of the TB Chirp III and
GeoPulse 5430 CHIRP SBP, respectively (see Table 1 for source
characteristics). Ocean Wind II did not request authorization of take
by Level A harassment, and no take by Level A harassment is authorized
by NMFS.
Ensonified Area
NMFS has developed a user-friendly methodology for estimating the
extent of the Level B harassment isopleths associated with relevant HRG
survey equipment (NMFS, 2020). This methodology incorporates frequency
and directionality to refine estimated ensonified zones. For acoustic
sources that operate with different beamwidths, the maximum beamwidth
was used, and
[[Page 30467]]
the lowest frequency of the source was used when calculating the
frequency-dependent absorption coefficient (Table 1).
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG equipment and, therefore, recommends that source levels
provided by Crocker and Fratantonio (2016) be incorporated in the
method described above to estimate isopleth distances to harassment
thresholds. In cases when the source level for a specific type of HRG
equipment is not provided in Crocker and Fratantonio (2016), NMFS
recommends that either the source levels provided by the manufacturer
be used, or, in instances where source levels provided by the
manufacturer are unavailable or unreliable, a proxy from Crocker and
Fratantonio (2016) be used instead. Table 1 shows the HRG equipment
types that may be used during the surveys and the source levels
associated with those HRG equipment types.
Results of modeling using the methodology described above indicated
that, of the HRG survey equipment planned for use by Ocean Wind II that
has the potential to result in Level B harassment of marine mammals,
the Applied Acoustics Dura-Spark UHD and GeoMarine Geo-Source sparkers
would produce the largest Level B harassment isopleth (141 m).
Estimated Level B harassment isopleths for all sources evaluated here,
including the sparkers, are provided in Table 4. Although Ocean Wind II
does not expect to use sparker sources on all planned survey days, it
assumes for purposes of analysis that the sparker would be used on all
survey days. This is a conservative approach, as the actual sources
used on individual survey days may produce smaller harassment
distances.
Table 4--Distances to Level B Harassment Threshold
[160 dB rms]
------------------------------------------------------------------------
Distance to
Level B
Equipment harassment
threshold (m)
------------------------------------------------------------------------
ET 216 CHIRP............................................ 9
ET 424 CHIRP............................................ 4
ET 512i CHIRP........................................... 6
GeoPulse 5430A.......................................... 21
TB CHIRP III............................................ 48
Pangeo SBI.............................................. 22
AA Triple plate S-Boom (700/1,000 J).................... 34
AA, Dura-spark UHD Sparkers............................. 141
GeoMarine Sparkers...................................... 141
------------------------------------------------------------------------
Marine Mammal Occurrence
In this section, NMFS provides information about the presence,
density, or group dynamics of marine mammals that informs the take
calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2020)
represent the best available information regarding marine mammal
densities in the survey area. The density data presented by Roberts et
al. (2016, 2017, 2018, 2020) incorporates aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporates
data from 8 physiographic and 16 dynamic oceanographic and biological
covariates, and controls for the influence of sea state, group size,
availability bias, and perception bias on the probability of making a
sighting. These density models were originally developed for all
cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In
subsequent years, certain models have been updated based on additional
data as well as certain methodological improvements. More information
is available online at seamap.env.duke .edu/models/Duke-EC/. Marine
mammal density estimates in the survey area (animals/km\2\) were
obtained using the most recent model results for all taxa (Roberts et
al., 2016, 2017, 2018, 2020). The updated models incorporate additional
sighting data, including sightings from NOAA's Atlantic Marine
Assessment Program for Protected Species (AMAPPS) surveys.
For the exposure analysis, density data from Roberts et al. (2016,
2017, 2018, 2020) 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 in Ocean Wind II's
application).
Densities from each of the selected density blocks were averaged
for each month available to provide monthly density estimates for each
species (when available based on the temporal resolution of the model
products), along with the average annual density. Please see Tables 7
of Ocean Wind II's application for density values used in the exposure
estimation process. Additional data regarding average group sizes from
survey effort in the region was considered to ensure adequate take
estimates are evaluated.
Take Calculation and Estimation
Here NMFS describes how the information provided above is brought
together to produce a quantitative take estimate. In order to estimate
the number of marine mammals predicted to be exposed to sound levels
that would result in harassment, radial distances to predicted
isopleths corresponding to Level B harassment thresholds are
calculated, as described above. The maximum distance (i.e., 141 m
distance associated with sparkers) to the Level B harassment criterion
and the estimated trackline distance traveled per day by a given survey
vessel (i.e., 70 km) are then used to calculate the daily ensonified
area, or zone of influence (ZOI) around the survey vessel.
The ZOI is a representation of the maximum extent of the ensonified
area around a sound source over a 24-hr period. The ZOI for each piece
of equipment operating below 200 kHz was calculated per the following
formula:
ZOI = (Distance/day x 2r) + [pi]r\2\
Where r is the linear distance from the source to the harassment
isopleth.
ZOIs associated with all sources with the expected potential to
cause take of marine mammals are provided in Table 6 of Ocean Wind II's
application. The largest daily ZOI (19.8 km\2\), associated with the
various sparkers planned for use, was applied to all planned survey
days.
Potential Level B harassment exposures are estimated by multiplying
the average annual density of each species within either the Lease Area
or potential ECR area by the daily ZOI. That product is then multiplied
by the number of operating days expected for the survey in each area
assessed, and the product is rounded to the nearest whole number. These
results are shown in Table 5.
[[Page 30468]]
Table 5--Summary of Take Numbers
----------------------------------------------------------------------------------------------------------------
Level B
Species Abundance harassment Max percent
takes \1\ population
----------------------------------------------------------------------------------------------------------------
NARW............................................................ 368 11 2.98
Fin whale....................................................... 6,802 4 <1
Sei whale....................................................... 6,292 0 (1) <1
Minke whale..................................................... 21,968 1 <1
Humpback whale.................................................. 1,393 2 <1
Sperm whale \3\................................................. 4,349 0 (3) <1
Atlantic white-sided dolphin.................................... 93,233 6 (50) <1
Atlantic spotted dolphin........................................ 39,921 2 (15) <1
Common bottlenose dolphin: \2\
Offshore Stock.............................................. 62,851 2.9
Migratory Stock............................................. 6,639 1,842 27.75
Pilot Whales: \3\
Short-finned pilot whale.................................... 28,924 1 (20) <1
Long-finned pilot whale..................................... 39,215 1 (20) <1
Risso's dolphin................................................. 35,215 0 (30) <1
Common dolphin.................................................. 172,974 54 (400) <1
Harbor porpoise................................................. 95,543 90 <1
Seals: \4\
Gray seal................................................... 451,600 25 <1
Harbor seal................................................. 61,336 25 <1
----------------------------------------------------------------------------------------------------------------
\1\ Parentheses denote take authorization where different from calculated take estimates. Increases from
calculated values are based on assumed average group size for the species; sei whale, Kenney and Vigness-
Raposa, 2010; sperm whale and Risso's dolphin, Barkaszi and Kelly, 2018.
\2\ At this time, Orsted is not able to identify how much work would occur inshore and offshore of the 20 m
isobaths, a common delineation between offshore and coastal bottlenose dolphin stocks. Because Roberts et al.
does not provide density estimates for individual stocks of common bottlenose dolphins, the take presented
here is the total estimated take for both stocks. Although unlikely, for our analysis, we assume all takes
could be allocated to either stock.
\3\ Roberts (2018) only provides density estimates for pilot whales as a guild. The pilot whale density values
were applied to both species of pilot whale; therefore, the total take number proposed for authorization for
pilot whales (4) is double the estimated take number for the guild.
\4\ Roberts (2018) only provides density estimates for seals without differentiating by species. Harbor seals
and gray seals are assumed to occur equally; therefore, density values were split evenly between the two
species, i.e., total estimated take for ``seals'' is 22.
The take numbers shown in Table 5 are those requested by Ocean Wind
II. NMFS concurs with the requested take numbers and has authorized
them. Previous monitoring data compiled by Ocean Wind II (available
online at: <a href="http://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-marine-site-characterization-surveys-offshore-new">www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-marine-site-characterization-surveys-offshore-new</a>) suggests
that the take numbers are sufficient.
Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned); and
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
Mitigation for Marine Mammals and Their Habitat
NMFS has prescribed the following mitigation measures be
implemented during Ocean Wind II's marine site characterization
surveys. Pursuant to section 7 of the ESA, Ocean Wind II would also be
required to adhere to relevant Project Design Criteria (PDC) of the
NMFS' Greater Atlantic Regional Fisheries Office (GARFO) programmatic
consultation (specifically PDCs 4, 5, and 7) regarding geophysical
surveys along the U.S. Atlantic coast (<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 exclusion zones (EZ) will be established around the
HRG survey equipment and monitored by protected species observers
(PSOs):
<bullet> 500 m EZ for NARWs during use of specified acoustic
sources (sparkers, boomers, and non-parametric sub-bottom profilers).
<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
[[Page 30469]]
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. We note that in their
application, Ocean Wind II requested an EZ of 50 m for all dolphins,
seals, and porpoises and also requested that the shutdown requirements
be waived for all dolphin, seal, and porpoise species for which take is
authorized. NMFS has determined that the standard 100 m EZ for these
species is appropriate, with only limited waiver of shutdown
requirements as described in the Shutdown Procedures section below.
Pre-Start Clearance
Marine mammal clearance zones will be established around the HRG
survey equipment and monitored by protected species observers (PSOs):
<bullet> 500 m for all ESA-listed marine mammals; and
<bullet> 100 m for non all other marine mammals.
Ocean Wind II will implement a 30-minute pre-start clearance period
prior to the initiation of ramp-up of specified HRG equipment (see
exception to this requirement in the Shutdown Procedures section below)
During this period, clearance zones will be monitored by the PSOs,
using the appropriate visual technology. Ramp-up may not be initiated
if any marine mammal(s) is within its respective clearance zone. If a
marine mammal is observed within an clearance zone during the pre-start
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 seals 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 within its
respective exclusion zone. The vessel operator must comply immediately
with any call for shutdown by the Lead PSO. Any disagreement between
the Lead PSO and vessel operator should be discussed only after
shutdown has occurred. Subsequent restart of the survey equipment can
be initiated if the animal has been observed exiting its respective
exclusion zone or until an additional time period has elapsed (i.e. 15
minutes for harbor porpoise, 30 minutes for all other species).
If a species for which authorization has not been granted, or, a
species for which authorization has been granted but the authorized
number of takes have been met, approaches or is observed within the
Level B harassment zone (Table 4), shutdown would 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 PSOs 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 is 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 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
Ocean Wind II must adhere to the following measures except in the
case where compliance would create an imminent and serious threat to a
person or vessel or to the extent that a vessel is restricted in its
ability to maneuver and, because of the restriction, cannot comply.
<bullet> Vessel operators and crews must maintain a vigilant watch
for all protected species and slow down, stop their vessel, or alter
course, as appropriate and regardless of vessel size, to avoid striking
any protected species. A visual observer aboard the vessel must monitor
a vessel strike avoidance zone based on the appropriate separation
distance around the vessel (distances stated below). Visual observers
monitoring the vessel strike avoidance zone may be third-party
observers (i.e., PSOs) or crew members, but crew members responsible
for these duties must be provided sufficient training to (1)
distinguish protected species from other phenomena and (2) broadly to
identify a marine mammal as a NARW, other whale (defined in this
context as sperm whales or baleen whales other than NARWs), or other
marine mammal.
<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 survey vessels, regardless of size, must observe a 10-
knot speed restriction in specific areas designated by NMFS for the
protection of NARWs from vessel strikes including seasonal management
areas (SMAs) and dynamic management areas (DMAs) when in effect;
<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 knots or less at all times;
[[Page 30470]]
<bullet> All vessels must reduce their speed to 10 knots or less
when mother/calf pairs, pods, or large assemblages of cetaceans are
observed near a vessel;
<bullet> All vessels must maintain a minimum separation distance of
500 m from NARWs and other ESA-listed large whales;
<bullet> If a whale is observed but cannot be confirmed as a
species other than a NARW or other ESA-listed large whale, the vessel
operator must assume that it is a NARW 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 these measures, NMFS has determined that
the mitigation measures provide the means of effecting the least
practicable impact on marine mammal species or stocks and their
habitat, paying particular attention to rookeries, mating grounds, and
areas of similar significance.
Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
proposed 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. Ocean Wind II 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, specific duties in support of approved, independent
PSOs on smaller vessels with limited crew capacity operating in
nearshore waters. Section 5 of the draft IHA contains further details
regarding PSO approval.
The PSOs will be responsible for monitoring the waters surrounding
each survey vessel to the farthest extent permitted by sighting
conditions, including exclusion zones, during all HRG survey
operations. PSOs will visually monitor and identify marine mammals,
including those approaching or entering the established exclusion zones
during survey activities. It will be the responsibility of the Lead PSO
on duty to communicate the presence of marine mammals as well as to
communicate the action(s) that are necessary to ensure mitigation and
monitoring requirements are implemented as appropriate.
During all HRG survey operations (e.g., any day on which use of an
HRG source is planned to occur), a minimum of one PSO must be on duty
during daylight operations on each survey vessel, conducting visual
observations at all times on all active survey vessels during daylight
hours (i.e., from 30 minutes prior to sunrise through 30 minutes
following sunset). Two PSOs will be on watch during nighttime
operations. The PSO(s) must ensure 360[deg] 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 observation 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
[[Page 30471]]
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,
behavior); and details of any observed marine mammal behavior that
occurs (e.g., noted behavioral disturbances).
Reporting Measures
Within 90 days after completion of survey activities or expiration
of this IHA, whichever comes sooner, a final technical report will be
provided to NMFS that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring, summarizes
the number of marine mammals observed during survey activities (by
species, when known), summarizes the mitigation actions taken during
surveys (including what type of mitigation and the species and number
of animals that prompted the mitigation action, when known), and
provides an interpretation of the results and effectiveness of all
mitigation and monitoring. A final report must be submitted within 30
days following resolution of any comments on the draft report. All
draft and final marine mammal and acoustic monitoring reports must be
submitted to <a href="/cdn-cgi/l/email-protection#5202007c1b06027c1f3d3c3b263d203b3c350037223d202621123c3d33337c353d24"><span class="__cf_email__" data-cfemail="f3a3a1ddbaa7a3ddbe9c9d9a879c819a9d94a196839c818780b39d9c9292dd949c85">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#d69f8286f892b7baaf96b8b9b7b7f8b1b9a0"><span class="__cf_email__" data-cfemail="d8918c88f69cb9b4a198b6b7b9b9f6bfb7ae">[email protected]</span></a>.
The report must contain at minimum, the following:
<bullet> PSO names and affiliations;
<bullet> Dates of departures and returns to port with port name;
<bullet> Dates and times (Greenwich Mean Time) of survey effort and
times corresponding with PSO effort;
<bullet> Vessel location (latitude/longitude) when survey effort
begins and ends; vessel location at beginning and end of visual PSO
duty shifts;
<bullet> Vessel heading and speed at beginning and end of visual
PSO duty shifts and upon any line change;
<bullet> Environmental conditions while on visual survey (at
beginning and end of PSO shift and whenever conditions change
significantly), including wind speed and direction, Beaufort sea state,
Beaufort wind force, swell height, weather conditions, cloud cover, sun
glare, and overall visibility to the horizon;
<bullet> Factors that may be contributing to impaired observations
during each PSO shift change or as needed as environmental conditions
change (e.g., vessel traffic, equipment malfunctions); 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-start
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, Ocean Wind II
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 Ocean Wind II personnel discover an injured or
dead marine mammal, Ocean Wind II 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 must
include the following information:
<bullet> Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Condition of the animal(s) (including carcass condition if
the animal is dead);
<bullet> Observed behaviors of the animal(s), if alive;
<bullet> If available, photographs or video footage of the
animal(s); and
<bullet> General circumstances under which the animal was
discovered.
In the unanticipated event of a ship strike of a marine mammal by
any vessel involved in the activities covered by the IHA, Ocean Wind II
will report the incident to the NMFS OPR and the NMFS New England/Mid-
Atlantic Stranding Coordinator as soon as feasible. The report must
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
[[Page 30472]]
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. NMFS also assesses the number, intensity, and
context of estimated takes by evaluating this information relative to
population status. Consistent with the 1989 preamble for NMFS's
implementing regulations (54 FR 40338; September 29, 1989), the impacts
from other past and ongoing anthropogenic activities are incorporated
into this analysis via their impacts on the environmental baseline
(e.g., as reflected in the regulatory status of the species, population
size and growth rate where known, ongoing sources of human-caused
mortality, or ambient noise levels).
To avoid repetition, our analysis applies to all the species listed
in Table 5 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 would occur as a result from HRG surveys,
even in the absence of mitigation, and no serious injury or mortality
is authorized. As discussed in the Potential Effects section, non-
auditory physical effects and vessel strike are not expected to occur.
NMFS expects that all potential takes would be in the form of short-
term Level B behavioral harassment in the form of temporary avoidance
of the area or decreased foraging (if such activity was occurring),
reactions that are considered to be of low severity and with no lasting
biological consequences (e.g., Southall et al., 2007). Even repeated
Level B harassment of some small subset of an overall stock is unlikely
to result in any significant realized decrease in viability for the
affected individuals, and thus would not result in any adverse impact
to the stock as a whole. As described above, Level A harassment is not
expected to occur given the nature of the operations, the estimated
size of the Level A harassment zones, and the required shutdown zones
for certain activities.
In addition to being temporary, the maximum expected harassment
zone around a survey vessel is 141 m. Although this distance is assumed
for all survey activity in estimating take numbers proposed for
authorization and evaluated here, in reality much of the survey
activity would involve use of non-impulsive acoustic sources with a
reduced acoustic harassment zone of 48 m, producing expected effects of
particularly low severity. 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 proposed survey
area and there are no feeding areas known to be biologically important
to marine mammals within the survey area. There is no designated
critical habitat for any ESA-listed marine mammals in the survey area.
NARWs
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 NARWs. As noted previously, the survey area overlaps a
migratory corridor BIA for NARWs. Due to the fact that the survey
activities are temporary and the spatial extent of sound produced by
the survey would be very small relative to the spatial extent of the
available migratory habitat in the BIA, NARW migration is not expected
to be impacted by the survey. Given the relatively small size of the
ensonified area, it is unlikely that prey availability would be
adversely affected by 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 Ocean Wind II's
planned activities. Additionally, only very limited take by Level B
harassment of NARWs has been requested and has been authorized by NMFS
as HRG survey operations are required to maintain a 500 m EZ and
shutdown if a NARW is sighted at or within the EZ. The 500 m shutdown
zone for NARWs is conservative, considering the Level B harassment
isopleth for the most impactful acoustic source (i.e., sparker) 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 due to the small PTS zones associated with
HRG equipment types proposed for use. NMFS does not anticipate NARWs
takes that would result from Ocean Wind II's activities would impact
annual rates of recruitment or survival. Thus, any takes that occur
would not result in population level impacts.
[[Page 30473]]
Other Marine Mammal Species With Active UMEs
As noted previously, there are several active UMEs occurring in the
vicinity of Ocean Wind II'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 takes for all species listed in Table 5, 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 would only be exposed briefly to a small ensonified area that
might result in take. Additionally, required mitigation measures would
further reduce exposure to sound that could result in more severe
behavioral harassment.
In summary and as described above, the following factors 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 proposed
for authorization;
<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 primarily Level B behavioral
harassment 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 would 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 to shutdown at
500 m to minimize potential for Level B behavioral harassment would
limit any take of 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 proposed 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.
NMFS has authorized incidental take of 16 marine mammal species
(with 17 managed stocks). The total amount of takes relative to the
best available population abundance is less than 22 percent for one
stock (bottlenose dolphin northern coastal migratory stock), less than
3 percent for the NARW, and less than 1 percent for all other species
and stocks, which NMFS finds are small numbers of marine mammals
relative to the estimated overall population abundances for those
stocks. See Table 5.
Based on the analysis contained herein of the proposed activity
(including the proposed 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 OPR consults internally whenever we propose to authorize take for
endangered or threatened species, in this case with NMFS Greater
Atlantic Regional Fisheries Office (GARFO).
NMFS OPR is authorizing the incidental take of four species of
marine mammals which are listed under the ESA: North Atlantic right,
fin, sei, and sperm whales. On June 29, 2021 (revised September 2021),
GARFO completed an informal programmatic consultation on the effects of
certain site assessment and site characterization activities to be
carried out to support the
[[Page 30474]]
siting of offshore wind energy development projects off the U.S.
Atlantic coast. Part of the activities considered in the consultation
are geophysical surveys such as those proposed by Ocean Wind II for
which we have authorized take. GARFO concluded site assessment surveys
(and issuance of associated IHAs) are not likely to adversely affect
endangered species or adversely modify or destroy critical habitat.
NMFS has determined that issuance of the IHA is covered under the
programmatic consultation.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our action (i.e., the issuance of an IHA) with respect
to potential impacts on the human environment. This action is
consistent with categories of activities identified in Categorical
Exclusion B4 (IHAs with no anticipated serious injury or mortality) of
the Companion Manual for NOAA Administrative Order 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has determined that the
issuance of the final IHA qualifies to be categorically excluded from
further NEPA review.
Authorization
As a result of these determinations, NMFS has issued an IHA to
Ocean Wind II for conducting marine site characterization surveys off
the coast of New Jersey, provided the previously mentioned mitigation,
monitoring, and reporting requirements are incorporated. The IHA is
effective from May 10, 2022 through May 9, 2023 and can be found at
<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-llc-marine-site-characterization-surveys-new-0">https://www.fisheries.noaa.gov/action/incidental-take-authorization-ocean-wind-llc-marine-site-characterization-surveys-new-0</a>.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-10759 Filed 5-18-22; 8:45 am]
BILLING CODE 3510-22-P
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