Notice2022-11987
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off of Coastal Virginia
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 3, 2022
Effective
May 27, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Virginia Electric and Power Company doing business as Dominion Energy Virginia (Dominion Energy) to incidentally harass marine mammals during marine site characterization surveys off of Virginia in support of the Coastal Virginia Offshore Wind Commercial (CVOW) Project.
Full Text
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<title>Federal Register, Volume 87 Issue 107 (Friday, June 3, 2022)</title>
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[Federal Register Volume 87, Number 107 (Friday, June 3, 2022)]
[Notices]
[Pages 33730-33749]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-11987]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC026]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Off of Coastal Virginia
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Virginia Electric and Power Company doing business as Dominion Energy
Virginia (Dominion Energy) to incidentally harass marine mammals during
marine site characterization surveys off of Virginia in support of the
Coastal Virginia Offshore Wind Commercial (CVOW) Project.
DATES: This Authorization is effective from May 27, 2022 to May 26,
2023.
FOR FURTHER INFORMATION CONTACT: Leah Davis, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as a list of the references cited in
this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these
documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to
[[Page 33731]]
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 September 30, 2021, NMFS received a request from Dominion Energy
for an IHA to take marine mammals incidental to marine site
characterization surveys off of Virginia. Dominion Energy submitted
revised applications on December 3, 2021, January 21, 2022 and March 2,
2022 in response to comments from NMFS. The application was deemed
adequate and complete on March 8, 2022. Dominion Energy's request is
for take of a small number of 14 species of marine mammals by Level B
harassment only. Neither Dominion Energy nor NMFS expects serious
injury or mortality to result from this activity and, therefore, an IHA
is appropriate.
NMFS previously issued IHAs to Dominion Energy for similar and
related work in the same general area (85 FR 55415; September 8, 2020
(modified on December 17, 2020 (85 FR 81879) and April 22, 2021 (86 FR
21298)), 85 FR 30930; May 21, 2020, and 83 FR 39062; August 8, 2018).
Dominion Energy complied with all the requirements (e.g., mitigation,
monitoring, and reporting) of the previous IHAs and information
regarding their monitoring results may be found in the Estimated Take
section.
Description of the Specified Activity
As part of its overall marine site characterization survey
operations, Dominion Energy plans to conduct high-resolution
geophysical (HRG) surveys in the Lease Area and along the Offshore
Export Cable Corridor (OECC) off the coast of Virginia.
The purpose of the surveys is to locate and identify potential
unexploded ordnance (UXO) in support of the Dominion Energy Coastal
Virginia Offshore Wind Commercial Project. Underwater sound resulting
from Dominion Energy's planned site characterization survey activities,
specifically HRG surveys, has the potential to result in incidental
take of marine mammals in the form of behavioral harassment.
Table 1 identifies the 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 on the final survey design,
vessel availability, and survey contractor selection.
Table 1--Summary of Representative HRG Equipment
--------------------------------------------------------------------------------------------------------------------------------------------------------
Operating RMS source Peak source Pulse
System Representative frequency level (dB re level (dB re Primary beam width duration
equipment \a\ (kHz) 1 [mu]PA m) 1 [mu]PA m) (degrees) (millisecond)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Multibeam Echosounder............. R2Sonics 2026........ 170-450 \b\ 191 \b\ 221 0.45 x 0.45-1 x 1............ 0.015-1.115
Medium Penetration Seismic........ Geo Marine Dual 400 0.3-1.2 \c\ 203 \c\ 212 Omnidirectional.............. 0.5-0.8
Sparker 800J.
Applied Acoustics S- 0.5-3.5 \d\ 203 \d\ 213 \e\ 60....................... 10
Boom (Triple Plate
Boomer 1000J).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Make/model of equipment may vary depending on availability. Will be finalized as part of the survey preparations and contract negotiations with the
survey contractor.
\b\ Reported by manufacturer.
\c\ Based on data from Crocker and Fratantonio (2016) for the Applied Acoustics Dura Spark.
\d\ Based on data from Crocker and Fratantonio (2016) for the Applied Acoustics S-Boom with CS.
\e\ The beam width was based on data from Crocker and Fratantonio (2016) for the Applied Acoustics S-Boom. dB re 1 [mu]Pa m--decibels referenced to 1
microPascal at 1 meter.
Required mitigation, monitoring, and reporting measures are
described in detail later in this document (please see Mitigation and
Monitoring and Reporting).
A detailed description of the planned survey is provided in the
Federal Register notice for the proposed IHA (87 FR 19864; April 6,
2022). Since that time, no changes have been made to Dominion Energy's
planned survey activities. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for the
description of the specific activity.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Dominion Energy was
published in the Federal Register on April 6, 2022 (87 FR 19864). That
proposed notice described, in detail, Dominion Energy'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 letters from Oceana and Southern Environmental Law
Center (SELC) and one comment from a private citizen. Summaries of all
substantive comments, and our responses to these comments, are provided
here. Please see the comment letters, available online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-dominion-energy-marine-site-characterization-surveys-coastal">https://www.fisheries.noaa.gov/action/incidental-take-authorization-dominion-energy-marine-site-characterization-surveys-coastal</a>, for full detail
regarding the comments received.
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
[[Page 33732]]
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.
In particular, we emphasize that any Renewal IHA does have a 30-day
public comment period, and in fact, each Renewal IHA is made available
for a 45-day public comment period. The notice of the proposed IHA
published in the Federal Register on April 6, 2022 (87 FR 19864) made
clear that NMFS was seeking comment on the proposed IHA and the
potential issuance of a renewal for this survey. As detailed in the
Federal Register notice for the proposed IHA and on the agency's
website, 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. NMFS'
analysis of the anticipated impacts on marine mammals caused by the
applicant's activities covers both the Initial IHA period and the
possibility of a one-year Renewal. Therefore a member of the public
considering commenting on a proposed Initial IHA also knows exactly
what activities (or subset of activities) would be included in a
proposed Renewal IHA, the potential impacts of those activities, the
maximum amount and type of take that could be caused by those
activities, the mitigation and monitoring measures that would be
required, and the basis for the agency's negligible impact
determinations, least practicable adverse impact findings, small
numbers findings, and (if applicable) the no unmitigable adverse impact
on subsistence use finding--all the information needed to provide
complete and meaningful comments on a possible Renewal at the time of
considering the proposed Initial IHA. Reviewers have the information
needed to meaningfully comment on both the immediate proposed IHA and a
possible 1-year renewal, should the IHA holder choose to request one.
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, which includes NMFS' direct notice to anyone who commented on
the proposed Initial IHA, 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 stated that NMFS must utilize the best available
science, and suggested that NMFS has not done so, specifically
referencing information regarding the North Atlantic right whale such
as updated population estimates, habitat usage in the survey area, and
seasonality information. Oceana specifically asserted that NMFS is not
using the best available science with regards to the North Atlantic
right whale population estimate and state that NMFS should be using the
estimate of 336 individuals presented in the recent North Atlantic
Right Whale Report Card (<a href="https://www.narwc.org/report-cards.html">https://www.narwc.org/report-cards.html</a>).
Response: While NMFS agrees that the best available science should
be used for assessing North Atlantic right whale abundance estimates,
we disagree that the North Atlantic Right Whale Report Card (i.e.,
Pettis et al. (2022)) study represents the most recent and best
available estimate for North Atlantic right whale abundance. Rather the
revised abundance estimate (368; 95 percent with a confidence interval
of 356-378) published by Pace (2021) (and subsequently included in the
2021 draft Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>)), which was used in the proposed IHA,
provides the most recent and best available estimate, and introduced
improvements to NMFS' right whale abundance model. Specifically, Pace
(2021) looked at a different way of characterizing annual estimates of
age-specific survival. NMFS considered all relevant information
regarding North Atlantic right whale, including the information cited
by the commenters. However, NMFS relies on the SAR. Recently (after
publication of the notice of proposed IHA), NMFS updated its species
web page to recognize the population estimate for North Atlantic right
whales 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
North Atlantic right whales or authorized take numbers, nor affect our
ability to make the required findings under the MMPA for Dominion
Energy'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' 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
[[Page 33733]]
published and that the North Atlantic Right Whale Report Card (Pettis
et al., 2022) does not undertake this process.
NMFS considered the best available science regarding both recent
habitat usage patterns for the study area and up-to-date seasonality
information in the notice of the proposed IHA, including consideration
of existing BIAs and densities provided by Roberts et al. (2021). While
the commenter has suggested that NMFS consider best available
information for recent habitat usage patterns and seasonality, it has
not offered any additional information which it suggests should be
considered best available information in place of what NMFS considered
in its notice of proposed IHA (87 FR 19864; April 6, 2022).
Lastly, as we stated in the notice of proposed IHA (87 FR 19864;
April 6, 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 (approximately 4,000 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 North Atlantic right whales.
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 North Atlantic right whales, as disturbance responses in
North Atlantic right whales 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 North Atlantic right whale 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 Dominion Energy will
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 North Atlantic right whale, 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' negligible impact
analyses. Because North Atlantic right whales 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 compared with the survey area (the
overlap between the BIA and the proposed survey area will cover
approximately 4,000 km\2\ of the 269,448 km\2\ BIA). Thus, the
transitory nature of North Atlantic right whales at this location means
it is unlikely for any exposure to cause chronic effects, as Dominion
Energy's planned survey area and ensonified zones are much smaller than
the overall migratory corridor. As such, NMFS does not expect acute or
cumulative stress to be a detrimental factor to North Atlantic right
whales from Dominion Energy's described survey activities.
Comment 4: Oceana asserted that NMFS must fully consider the
discrete effects of each activity and the cumulative effects of the
suite of approved, proposed and potential activities on marine mammals
and North Atlantic right whales in particular and ensure that the
cumulative effects are not excessive before issuing or renewing an IHA.
In a related comment, the SELC stated that in proceeding with this IHA
and all incidental take authorizations for future offshore wind energy
development off the East Coast, NMFS should analyze the cumulative risk
to North Atlantic right whales and other marine mammal species posed by
these multiple projects and leasing phases, including as it relates to
development of mitigation measures.
Response: Neither the MMPA nor NMFS' codified implementing
regulations call for consideration of other unrelated activities and
their impacts on populations. The preamble for NMFS' implementing
regulations (54 FR 40338; September 29, 1989) states in response to
comments that the impacts from other past and ongoing anthropogenic
activities are to be incorporated into the negligible impact analysis
via their impacts on the baseline. Consistent with that direction, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline, e.g., as reflected in the density/distribution and status of
the species, population size and growth rate, and other relevant
stressors. The 1989 final rule for the MMPA implementing regulations
also addressed public comments regarding cumulative effects from
future, unrelated activities. There NMFS stated that such effects are
not considered in making findings under section 101(a)(5) concerning
negligible impact. In this case, this IHA, as well as other IHAs
currently in effect or proposed within the specified geographic region,
are appropriately considered an unrelated activity relative to the
others. The IHAs are unrelated in the sense that they are discrete
actions under section 101(a)(5)(D), issued to discrete applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of the specified activity or
class of activities that can be expected to result in incidental taking
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, Dominion Energy 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 Endangered Species Act (ESA) for ESA-
listed species, as appropriate. Accordingly, NMFS has written
Environmental Assessments (EA) that addressed cumulative impacts
related to
[[Page 33734]]
substantially similar activities, in similar locations, e.g., the 2019
Avangrid EA for survey activities offshore North Carolina and Virginia;
the 2017 Ocean Wind, LLC EA for site characterization surveys off New
Jersey; and the 2018 Deepwater Wind EA for survey activities offshore
Delaware, Massachusetts, and Rhode Island. Cumulative impacts regarding
issuance of IHAs for site characterization survey activities such as
those planned by Dominion Energy 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 (CE) for issuance of Dominion Energy's IHA, which included
consideration of extraordinary circumstances.
Separately, the cumulative effects of substantially similar
activities in the northwest Atlantic Ocean 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 previous IHAs (82 FR 31562; July 7,
2017, 85 FR 21198; April 16, 2020 and 86 FR 26465; May 10, 2021), which
are similar to those planned by Dominion Energy 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.
Comment 5: The SELC recommends that NMFS reinitiate its
consultation under the ESA, stating that it relies on outdated
scientific information about the North Atlantic right whale and fails
to include mitigation measures that meet the ESA's requirements. It
says that NMFS should instead require in the Final IHA the measures
found in Attachment 5 of its comment letter.
Response: NMFS disagrees with SELC's assertion that reinitiation of
its ESA section 7 consultation is warranted, as none of the
reinitiation triggers listed in NMFS' 2021 programmatic consultation
have been met. Regarding the mitigation measures included in the 2021
programmatic consultation, NMFS Greater Atlantic Regional Fisheries
Office (GARFO) has determined that activities which were considered in
its 2021 programmatic consultation are not likely to adversely affect
ESA-listed marine mammals, provided that the required Project Design
Criteria (PDC) are implemented. This IHA requires Dominion Energy to
abide by the relevant PDCs. Please see the response to Comment 6 and
other relevant comments regarding the appropriateness of the measures
in Attachment 5 to SELC's comment letter.
Comment 6: The SELC recommends that NMFS require the mitigation
measures described in Attachment 5 of its letter in the Final IHA. NMFS
has summarized the remaining recommendations from Attachment 5 here.
Please refer to Attachment 5 to SELC's letter for the full recommended
measures. SELC recommends that NMFS: (1) Prohibit site assessment and
site characterization activities during times of highest risk. (2)
Require diel restrictions on site assessment and characterization
activities. (3) Require the clearance zone and exclusion zone distances
stated in Attachment 5 prior to activities known to injure or harass
large whales. (4) Require shutdown of activities if a large whale is
detected visually or acoustically. (5) Require robust monitoring
protocols during pre-clearance and when site assessment and
characterization activities are underway. (6) Require mandatory vessel
speed restrictions. (7) Implement other vessel-related measures. (8)
Require underwater noise reduction to the fullest extent feasible. (9)
Require mandatory reporting of all North Atlantic right whale and other
large whale detections.
Response: Responses below refer to the corresponding number in the
comment.
(1) Given the very minor degree to which North Atlantic right
whales are anticipated to be impacted by this activity (see the
Estimated Take and Negligible Impact Analysis and Determination
sections for additional detail), it is not appropriate to prohibit
survey activities during certain times. However, as described in the
Mitigation section of this notice, the IHA does include mitigation
measures related to vessel transit that are required during certain
times when North Atlantic right whales are anticipated to occur in the
project area in higher numbers. Further, the IHA requires that members
of the monitoring team consult NMFS North Atlantic right whale
reporting system and Whale Alert, as able, for the presence of North
Atlantic right whales throughout survey operations, and for the
establishment of a DMA. If NMFS should establish a DMA in the survey
area during the survey, vessels must abide by speed restrictions in the
DMA. Please also see NMFS' response to Comment 14.
(2) Please see NMFS' response to Comment 8.
(3) Please see NMFS' response to Comment 16.
(4) Please see NMFS' response to Comment 18.
(5) Regarding the recommendation to conduct acoustic monitoring,
please refer to Comment 17. Further, as also recommended by the
commenter, PSOs stationed on a survey vessel must be able to view the
entire exclusion or clearance zone, and monitoring must begin at least
30 minutes prior to the commencement or re-activation after a shutdown.
NMFS requires that visual monitoring must continue until 30 minutes
after use of the specified acoustic source ceases. However, NMFS
disagrees with the commenter's recommendation to require at least 4
PSOs (rotating two on duty, two off duty). Rather, the IHA requires a
minimum of one PSO on duty, per source vessel, during daylight hours
and two PSOs must be on duty, per source vessel, during nighttime
hours, and expects that these PSOs will be able to sufficiently monitor
the zones. NMFS disagrees with the commenter that a 1,000 m clearance
zone for North Atlantic right whales and other large whale species is
appropriate. Please see NMFS' response to Comment 16 for additional
explanation.
(6) Please see NMFS' response to Comment 10 that describes why it
has not required a 10-knot speed restriction at all times. Further,
Dominion Energy has not developed a peer-reviewed ``Adaptive Plan''
that is proven to be equally or more effective than a 10-knot speed
restriction, nor does NMFS find such a plan to be warranted, given that
the factors described in Comment 10 in support of the vessel speed
restriction requirements included in the IHA.
(7) The IHA states that visual observers monitoring the vessel
strike avoidance zone may be third-party observers (i.e., PSOs) or crew
members, but crew members responsible for these duties must be provided
sufficient training to (1) distinguish marine mammals from other
phenomena and (2) broadly to identify a marine mammal as a right whale,
other whale (defined in this context as sperm whales or baleen whales
other than right whales), or other marine mammals. While this
requirement does not include ``all personnel working offshore'' as
recommended by the commenter, it
[[Page 33735]]
includes all relevant personnel who may be responsible for vessel
strike avoidance.
Regarding vessel separation zones, NMFS requires a 500 m separation
distance for ESA-listed whales (North Atlantic right whale and fin
whale), which aligns with the commenter's recommendation for North
Atlantic right whale, and is more conservative than the commenter's
recommendation (100 m) for fin whales. For all other large whales, the
final IHA requires a vessel separation distance of 100 m, as also
recommended by the commenter and as was included in the proposed IHA.
As needed, vessels must take action to maintain these separation
distances. During nighttime observations, PSOs will use thermal imaging
devices. Regarding the recommendation for crew transport vessels to use
thermal imaging devices, Dominion Energy's survey plans do not require
additional vessels for crew transport, and therefore, this
recommendation has not been included in the IHA.
(8) Please see NMFS' response to Comment 7.
(9) Please see NMFS' response to Comment 15.
Comment 7: Oceana states that NMFS must make an assessment of which
activities, technologies and strategies are truly necessary to achieve
site characterization to inform development of the offshore wind
projects and which are not critical, asserting that NMFS should
prescribe the appropriate survey techniques. In general, Oceana and the
SELC 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 such as through the use of
technically and commercially feasible and effective noise reduction and
attenuation measures. SELC states that for example, project proponents
should select and operate sub-bottom profiling systems at power
settings that achieve the lowest practicable source level for the
objective.
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 North Atlantic right whales 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. 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 8: SELC recommends that NMFS prohibit initiation of site
characterization activities within 1.5 hours of civil sunset or in
times of low visibility when the visual clearance and exclusion zones
cannot be visually monitored.
Response: NMFS disagrees with the commenter that prohibiting
initiation of site characterization activities within 1.5 hours of
civil sunset or in times of low visibility when the visual clearance
and exclusion zones cannot be visually monitored is warranted.
NMFS acknowledges the limitations inherent in detection of marine
mammals at night and in times of low visibility. However, no injury is
expected to result even in the absence of mitigation, given the
characteristics of the sources planned for use (supported by the very
small estimated Level A harassment zones; i.e., <54 m for all impulsive
sources). Regarding Level B harassment, any potential impacts will be
limited to short-term behavioral responses, as described in the
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat section of the notice of proposed IHA (87 FR 19864; April 6,
2022) and the Negligible Impact Analysis and Determination section of
this notice. NMFS considers impacts from this category of survey
operations to be near de minimis, with the potential for Level A
harassment for any species to be discountable and the severity of Level
B harassment (and, therefore, the impacts of the take event on the
affected individual), if any, to be low. Commenters provide no evidence
to the contrary. NMFS is also requiring Dominion Energy to employ two
PSOs during nighttime hours and Dominion Energy must supply at least
one thermal (infrared) imaging device suited for the marine
environment. Given these factors, NMFS has determined that more
restrictive mitigation requirements are not warranted.
Restricting surveys in the manner suggested by the commenters may
reduce marine mammal exposures by some degree in the short term, but
would not result in any significant reduction in either intensity or
duration of noise exposure. Vessels would also potentially be on the
water for an extended time introducing additional noise into the marine
environment. The restrictions recommended by the commenters could
result in the surveys spending increased time on the water, which may
result in greater overall exposure to sound for marine mammals; thus
the commenters have not demonstrated that such a requirement would
result in a net benefit. Furthermore, restricting the ability of the
applicant to begin surveys within 1.5 hours of civil sunset would have
the potential to result in lengthy shutdowns of the survey equipment,
which could result in the applicant failing to collect the data they
have determined is necessary and, subsequently, the need to conduct
additional surveys in the future. This would result in significantly
increased costs incurred by the applicant. Thus, the restriction
suggested by the commenters would not be practicable for the applicant
to implement. In consideration of the likely effects of the activity on
marine mammals absent mitigation, potential unintended consequences of
the measures as proposed by the commenters, and practicability of the
recommended measures for the applicant, NMFS has determined that
restricting operations as recommended is not warranted or practicable
in this case.
Comment 9: 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 10: Oceana and the SELC 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 North Atlantic right whales and other large whales.
Response: While NMFS acknowledges that vessel strikes can result in
injury or mortality, we have analyzed the potential for vessel strike
resulting from Dominion Energy's activity and have determined that
based on the nature of the activity and the required mitigation
measures specific to vessel strike avoidance included in the IHA,
potential for vessel strike is so low as to
[[Page 33736]]
be discountable. The required mitigation measures, all of which were
included in the proposed IHA and are now required in the final IHA,
include: A requirement that all vessel operators comply with 10 kn
(18.5 km/hour) or less speed restrictions in any SMA, DMA or Slow Zone
while underway, and check daily for information regarding the
establishment of mandatory or voluntary vessel strike avoidance areas
(SMAs, DMAs, Slow Zones) and information regarding NARW sighting
locations; a requirement that all vessels greater than or equal to 19.8
m in overall length operating from November 1 through April 30 operate
at speeds of 10 kn (18.5 km/hour) or less; a requirement that all
vessel operators reduce vessel speed to 10 kn (18.5 km/hour) or less
when any large whale, any mother/calf pairs, pods, or large assemblages
of non-delphinid cetaceans are observed near the vessel; a requirement
that all survey vessels maintain a separation distance of 500 m or
greater from any ESA-listed whales or other unidentified large marine
mammals visible at the surface while underway; a requirement that, if
underway, vessels must steer a course away from any sighted ESA-listed
whale at 10 kn or less until the 500 m minimum separation distance has
been established; a requirement that, if an ESA-listed whale is sighted
in a vessel's path, or within 500 m of an underway vessel, the underway
vessel must reduce speed and shift the engine to neutral; a requirement
that all vessels underway must maintain a minimum separation distance
of 100 m from all non-ESA-listed baleen whales; and a requirement that
all vessels underway must, to the maximum extent practicable, attempt
to maintain a minimum separation distance of 50 m from all other marine
mammals, with an understanding that at times this may not be possible
(e.g., for animals that approach the vessel). We have determined that
the vessel 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 11: Oceana suggests that NMFS require vessels maintain a
separation distance of at least 500 m from North Atlantic right whales
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
North Atlantic right whales at all times was included in the proposed
Federal Register Notice and was included as a requirement in the issued
IHA.
Comment 12: 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 Dominion Energy, 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 13: 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 Dominion Energy, the vessel operators, the
lead PSO, and any other relevant designees of Dominion Energy operating
under the authority of this IHA. The IHA also states that Dominion
Energy 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 14: The SELC recommends that NMFS prohibit site
characterization activities that have the potential to injure or harass
North Atlantic right whales (defined in its letter as sources operating
at frequencies between 7 and 35 kHz) from November 1 to April 30.
Response: NMFS appreciates the value of seasonal restrictions under
certain circumstances. However, in this case, we have determined
seasonal restrictions from April 1 to November 30 are not warranted,
given the relatively low density of North Atlantic right whales in the
area, the nature of the proposed activities, and the required
mitigation measures. As described in response to Comment 16, Dominion
Energy is required to implement clearance and exclusion zones of 500 m
for North Atlantic right whales. This 500 m zone exceeds the modeled
distance to the largest 160 dB Level B harassment isopleth (141 m
during sparker use) by a substantial margin. Further, Level A
harassment (auditory injury) is not expected to result even in the
absence of mitigation, given the characteristics of the sources planned
for use.
Comment 15: Oceana stated that the IHA must include a requirement
for all phases of the site characterization to subscribe to the highest
level of transparency, including frequent reporting to federal
agencies. Oceana and SELC recommend requirements to report all visual
and acoustic detections of North Atlantic right whales 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. SELC also
recommends the Marine Animal Response Team as a potential organization
for reporting of entangled or dead North Atlantic right whales or other
large whales. 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. Related, SELC recommends that quarterly reports of
PSO sighting data be made publicly available.
Response: NMFS agrees with the need for reporting and indeed, the
MMPA calls for IHAs to incorporate reporting requirements. However,
NMFS does not concur with the suggestion that Dominion Energy should
submit quarterly PSO sightings data reports,
[[Page 33737]]
and that these reports be made publicly available. As included in the
proposed IHA, the final IHA includes requirements for reporting that
supports Oceana's recommendations. Dominion Energy 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. PSO
datasheets or raw sightings data must also be provided with the draft
and final monitoring report. SELC did not provide specific examples
regarding how making PSO sightings data publicly available on a
quarterly basis would inform marine mammal science and protection in
any meaningful way on this timescale.
Further, the draft IHA and final IHA stipulate that if a North
Atlantic right whale is observed at any time by any survey vessels,
during surveys or during vessel transit, Dominion Energy must
immediately report sighting information to the NMFS North Atlantic
Right Whale Sighting Advisory System within two hours of occurrence,
when practicable, or no later than 24 hours after occurrence. Dominion
Energy may also report the sighting to the U.S. Coast Guard.
Additionally, Dominion Energy must report any discoveries of injured or
dead marine mammals to the Office of Protected Resources, NMFS, and to
the New England/Mid-Atlantic Regional Stranding Coordinator as soon as
feasible. This includes entangled animals. All reports and associated
data submitted to NMFS are included on the website for public
inspection.
Daily visual and acoustic detections of North Atlantic right whales
and other large whale species along the Eastern Seaboard, as well as
Slow Zone locations, are publicly available on WhaleMap (<a href="https://whalemap.org/WhaleMap/">https://whalemap.org/WhaleMap/</a>). Further, recent acoustic detections of North
Atlantic right whales and other large whale species are available to
the public on NOAA's Passive Acoustic Cetacean Map website <a href="https://apps-nefsc.fisheries.noaa.gov/pacm/#/narw">https://apps-nefsc.fisheries.noaa.gov/pacm/#/narw</a>. Given the open access to the
resources described above, NMFS does not concur that public access to
quarterly PSO reports is warranted and we have not included this
measure in the authorization.
Comment 16: The SELC recommended that for site characterization
activities that have the potential to injure or harass North Atlantic
right whales, NMFS require a visual clearance and exclusion zone of at
least 1,000 m for North Atlantic right whales and 500 m for all large
whale species around each vessel conducting activities with noise
levels that could result in injury to or harassment of large whales,
and also require an acoustic clearance and exclusion zone of at least
1,000 m for North Atlantic right whales around each vessel conducting
activities with noise levels that could harass North Atlantic right
whales. SELC states that if a large whale is detected within the 1000 m
clearance zone but the species cannot be identified, it must be assumed
to be a North Atlantic right whale. Similarly, Oceana recommended
increasing the Exclusion Zone to 1,000m for North Atlantic right
whales.
Response: NMFS notes that the 500 m Exclusion Zone for North
Atlantic right whales exceeds the modeled distance to the largest 160
dB Level B harassment isopleth (141 m during sparker use) by a
substantial margin. Commenters do not provide a compelling rationale
for why the Exclusion Zone should be even larger. Given that these
surveys are relatively low impact and that, regardless, NMFS has
prescribed a North Atlantic right whale 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. Regarding the clearance zone, the SELC did not provide a
compelling reason why the recommended clearance zones are warranted.
The IHA already requires a clearance zone of 500 m for ESA-listed
marine mammals (which includes all large whales, except humpback and
minke whales), which like the Exclusion Zones, are much larger than the
Level B harassment zone for all activities (the largest of which is 141
m, as noted above). For all other marine mammals, the 100 m clearance
zone is significantly larger than the calculated Level A harassment
zones, and it incorporates most or all of the Level B harassment zones,
including the largest Level B harassment zone of 141 m. Further, Level
A harassment is not expected to result even in the absence of
mitigation, given the characteristics of the sources planned for use.
Regarding the use of acoustic monitoring to implement exclusion and
clearance zones, NMFS does not anticipate that acoustic monitoring
would be effective for a variety of reasons, as described in its
response to Comment 17, and therefore has not required it in this IHA.
Please refer to Comment 17 for additional information. As described in
the Mitigation section, NMFS has determined that the prescribed
mitigation requirements are sufficient to effect the least practicable
adverse impact on all affected species or stocks.
Comment 17: Oceana recommended that NMFS should require Passive
Acoustic Monitoring (PAM) at all times to maximize the probability of
detection for North Atlantic right whales. It provided recommendations
that NMFS should require PAM at all times, both day and night, to
maximize the probability of detection for North Atlantic right whales,
as well as other species and stocks. In a related comment, the SELC
recommended that applicants use PAM to assist in implementing clearance
and exclusion zones for North Atlantic right whales.
Response: The commenters do not explain why they expect that PAM
would be effective in detecting vocalizing mysticetes, nor does NMFS
agree that this measure is warranted, as it is not expected to be
effective for use in detecting the species of concern. It is generally
accepted that, even in the absence of additional acoustic sources,
using a towed passive acoustic sensor to detect baleen whales
(including North Atlantic right whales) 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
[[Page 33738]]
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 North Atlantic right whales and other low frequency
cetaceans, species for which PAM has limited efficacy), and the cost
and impracticability of implementing a full-time PAM program, we have
determined the current requirements for visual monitoring are
sufficient to ensure the least practicable adverse impact on the
affected species or stocks and their habitat. NMFS has previously
provided discussions on why PAM isn't a required monitoring measure
during HRG survey IHAs in past Federal Register notices (see 86 FR
21289, April 22, 2021 and 87 FR 13975, March 11, 2022 for examples).
Comment 18: Oceana recommends a shutdown requirement if a North
Atlantic right whale or other ESA-listed species is detected in the
clearance zone as well as a publicly available explanation of any
exemptions as to why the applicant would not be able to shut down in
these situations. In a related comment, the SELC recommends that if a
North Atlantic right whale or other large whale species is visually or
acoustically detected within the relevant clearance zone, site
assessment and characterization activities with noise levels that could
result in injury or harassment to large whales must not be initiated.
SELC further recommends that site assessment and characterization
activities with noise levels that could result in injury or harassment
to large whales be halted if a North Atlantic right whale or other
large whale species is visually detected within the visual exclusion
zone or if a North Atlantic right whale is acoustically detected within
the acoustic exclusion zone.
Response: NMFS reiterates that use of the planned sources is not
expected to have any potential to cause injury of any species,
including North Atlantic right whale, even in the absence of
mitigation. Consideration of the anticipated effectiveness of the
mitigation measures (i.e., exclusion zones and shutdown measures)
discussed below and in the Mitigation section of this notice further
strengthens the conclusion that injury is not a reasonably anticipated
outcome of the survey activity. Nevertheless, there are several
shutdown requirements described in the Federal Register notice of the
proposed IHA (87 FR 19864; April 6, 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 for NARW and ESA-listed species.
Dominion Energy is required to implement a 30-minute pre-start
clearance period prior to the initiation of ramp-up of specified HRG
equipment. During this period, clearance zones will be monitored by 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). 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.
NMFS does not require acoustic monitoring for the reasons stated in
our response to Comment 17.
Comment 19: Oceana recommended that when HRG surveys are allowed to
resume after a shutdown event, the surveys should be required to use a
ramp-up procedure to encourage any nearby marine life to leave the
area.
Response: NMFS agrees with this recommendation and included in the
Federal Register notice of the proposed IHA (87 FR 19864; April 6,
2022) and this final IHA a stipulation that when technically feasible,
survey equipment must be ramped up at the start or restart of survey
activities. Ramp-up must begin with the power of the smallest acoustic
equipment at its lowest practical power output appropriate for the
survey. When technically feasible the power must then be gradually
turned up and other acoustic sources added in a way such that the
source level would increase gradually. NMFS notes that ramp-up is not
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.
Changes From the Proposed IHA to Final IHA
Since publication of the Notice of proposed IHA, NMFS has
acknowledged that the population estimate of North Atlantic right
whales 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 North
Atlantic right whales or authorized take numbers, nor affect our
ability to make the required findings under the MMPA for Dominion
Energy's survey activities. The status and trends of the NARW
population remain unchanged.
NMFS considered all public comments received and determined that no
changes to the final IHA were necessary due to these recommendations.
However, in section 6 of the IHA (Reporting Requirements) NMFS removed
reference to an acoustic monitoring report which was inadvertently
included in the proposed IHA, as an acoustic monitoring report is not
required. Additionally, in the same
[[Page 33739]]
section, NMFS added a GARFO email address to which the draft and final
reports must also be sent.
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="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS'
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species or stocks for which take is expected and
authorized for this action, and summarizes information related to the
population or stock, including regulatory status under the MMPA and ESA
and potential biological removal (PBR), where known. For taxonomy, we
follow Committee on Taxonomy (2021). PBR is defined by the MMPA as the
maximum number of animals, not including natural mortalities, that may
be removed from a marine mammal stock while allowing that stock to
reach or maintain its optimum sustainable population (as described in
NMFS' SARs). While no mortality is anticipated or authorized here, PBR
and annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species and
other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' 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 2020 SARs (Hayes et al. 2021) and draft 2021 SARs
(available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/draft-marine-mammal-stock-assessment-reports</a>).
Table 2--Marine Mammals Likely To Occur in the Project Area That May Be Affected by Dominion Energy's Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
Stock abundance (CV,
ESA/ MMPA status; Nmin, most recent Annual M/
Common name Scientific name Stock strategic (Y/N) abundance survey) \2\ PBR SI \3\
\1\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale...... Eubalaena glacialis.... Western North Atlantic. E, D, Y 368 (0, 364, 2019).... 0.7 7.7
Family Balaenopteridae (rorquals):
Fin whale....................... Balaenoptera physalus.. Western North Atlantic. E, D, Y 6,802 (0.24, 5,573, 11 1.8
2016).
Humpback whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, Y 1,396 (0, 1,380, 2016) 22 12.15
Minke whale..................... Balaenoptera Canadian East Coast.... -, -, N 21,968 (0.31, 17,002, 170 10.6
acutorostrata. 2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6,292 (1.02, 3,098, 6.2 0.8
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:
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -, N 93,233 (0.71, 54,443, 544 27
2016).
Bottlenose dolphin.............. Tursiops spp........... Western North Atlantic -, -, N 62,851 \b\ (0.23, 519 28
Offshore. 51,914 \b\, 2016).
Southern Migratory -, -, Y 3,751 (0.6, 2,353, 23 0-18.3
Coastal. 2016).
Short-finned pilot whale........ Globicephala Western North Atlantic. -, -, Y 28,924 (0.24, 23,637, 236 136
macrorhynchus. 2016).
Long-finned pilot whale......... Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.3, 30,627, 306 29
2016).
Risso's dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 35,215 (0.19, 30,051, 301 34
2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic. -, -, N 172,974 (0.21, 1452 390
145,216, 2016).
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic. -, -, N 39,921 (0.27, 32,032, 320 0
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..... Western North Atlantic. -, -, N 27,300 (0.22, 22,785, 1389 4453
2016).
Harbor seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08, 57,637, 1729 339
2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). Under the MMPA, a strategic stock is one for which the level of direct human-
caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species
or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a> assessments. 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, vessel strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
approximately 451,431. The annual M/SI value given is for the total stock.
[[Page 33740]]
A detailed description of the of the species likely to be affected
by Dominion Energy's activities, including information regarding
population trends, threats, and local occurrence, was provided in the
Federal Register notice for the proposed IHA (87 FR 19864; April 6,
2022); since that time, we are not aware of any changes in the status
of these species and stocks; therefore, detailed descriptions are not
provided here. Please refer to that Federal Register notice for these
descriptions. Please also refer to NMFS' 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 (dolphins, 150 Hz to 160 kHz.
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) (true 50 Hz to 86 kHz.
seals).
Otariid pinnipeds (OW) (underwater) (sea 60 Hz to 39 kHz.
lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al. 2006; Kastelein et al. 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
16 marine mammal species (14 cetacean and two phocid pinniped species)
have the reasonable potential to co-occur with the planned 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 delphinids and the sperm whale), and one is classified as
high-frequency cetaceans (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 19864; April 6, 2022) included a discussion of the
effects of anthropogenic noise on marine mammals and their habitat,
therefore that information is not repeated here; please refer to the
Federal Register notice (87 FR 19864; April 6, 2022) 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 are by Level B harassment only, in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to HRG sources. Based primarily on the
characteristics of the signals produced by the acoustic sources planned
for use, Level A harassment is neither anticipated (even absent
mitigation) nor authorized. Consideration of the anticipated
effectiveness of the mitigation measures (i.e., exclusion zones and
shutdown measures) discussed in detail below in the Mitigation section,
further strengthens the conclusion that Level A harassment is not a
reasonably anticipated outcome of the survey activity. As described
previously, no serious injury or mortality is anticipated 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
[[Page 33741]]
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 estimate.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source (e.g., frequency, predictability, duty cycle), the environment
(e.g., bathymetry), and the receiving animals (hearing, motivation,
experience, demography, behavioral context) and can be difficult to
predict (Southall et al. 2007, Ellison et al. 2012). Based on what the
available science indicates and the practical need to use a threshold
based on a factor that is both predictable and measurable for most
activities, NMFS uses a generalized acoustic threshold based on
received level to estimate the onset of behavioral harassment. NMFS
predicts that marine mammals are likely to be behaviorally harassed in
a manner we consider Level B harassment when exposed to underwater
anthropogenic noise above received levels of 160 dB re 1 [mu]Pa (rms)
for the impulsive sources (i.e., boomers, sparkers) evaluated here for
Dominion Energy'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>.
Dominion Energy's planned survey includes the use of impulsive
(i.e., sparkers and boomers) 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
planned for use here, and the potential for Level A harassment is not
evaluated further in this document. Please see Dominion Energy'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 6 m for all sources and hearing groups with the
exception of an estimated 54 m zone calculated for high-frequency
cetaceans during use of the Applied Acoustics S-Boom Boomer, (see Table
1 for source characteristics). Dominion Energy did not request
authorization of take by Level A harassment, and no take by Level A
harassment is authorized here 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 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 planned 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 Dominion Energy
that has the potential to result in Level B harassment of marine
mammals, the Geo Marine Dual 400 Sparker 800J will produce the largest
Level B harassment isopleth (141 m; see Table 6-3 of Dominion Energy's
application). The Applied Acoustics S-Boom (Triple Plate Boomer 1000J)
will produce a Level B harassment isopleth of 22 m. Although Dominion
Energy does not expect to use the Geo Marine Dual 400 Sparker 800J
source on all planned survey days, it assumes, for purposes of
analysis, that the sparker will 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.
Marine Mammal Occurrence
In this section we provide the information about the presence,
density, or group dynamics of marine mammals that will inform the take
calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory and the Marine-life Data and Analysis
Team, based on the best available marine mammal data from 1992-2019
obtained in a collaboration between Duke University, the Northeast
Regional Planning Body, the University of North Carolina Wilmington,
the Virginia Aquarium and Marine Science Center, and NOAA (Roberts et
al. 2016a; Curtice et al. 2018), represent the best available
information regarding marine mammal densities in the survey area. More
recently, these data have been updated with new modeling results and
include density estimates for pinnipeds (Roberts et al. 2016, 2017,
2018, 2020, 2021).
The density data presented by Roberts et al. (2016b, 2017, 2018,
2020, 2021) incorporates aerial and shipboard line-transect survey data
from NMFS and other organizations and incorporates data from eight
physiographic and 16 dynamic oceanographic and biological covariates,
and controls for the influence of sea state, group size, availability
bias, and perception bias on the probability of making a sighting.
These density models were originally developed for all cetacean taxa in
the U.S. Atlantic (Roberts et al. 2016). In subsequent years, certain
models have been updated based on additional data as well as certain
methodological improvements. More information is available online at
<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a> EC/. Marine mammal density
estimates in the survey area (animals/km\2\) were
[[Page 33742]]
obtained using the most recent model results for all taxa (Roberts et
al. 2016, 2017, 2018, 2020, 2021), with the exception of the North
Atlantic right whale (discussed below). 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, the density data from Roberts et al.
(2016, 2017, 2018, 2020, 2021) were mapped using a geographic
information system (GIS). For the full survey area, Dominion Energy
averaged the densities of each species as reported by Roberts et al.
(2016, 2017, 2018, 2020, 2021) by season; thus, a density was
calculated for each species for spring, summer, fall and winter. To be
conservative, the greatest seasonal density calculated for each species
was then carried forward in the exposure analysis. The largest
estimated seasonal densities (animals per km\2\) of all marine mammal
species that may be taken by the proposed survey, for all survey areas,
is shown in Table 4, below. Below, we discuss how densities were
assumed to apply to specific species for which the Roberts et al.
(2016b, 2017, 2018, 2020, 2021) models provide results at the genus or
guild level. Additional data regarding average group sizes from survey
effort in the region was considered to ensure take estimates are
adequate to account for anticipated real-world encounter rates.
For bottlenose dolphin densities, Roberts et al. (2016b, 2017,
2018) does not differentiate by stock. Given the southern coastal
migratory stock's propensity to occur in waters shallower than the 25 m
(82 ft) isobath north of Cape Hatteras (Reeves et al. 2002; Hayes et
al. 2018), the project's offshore export cable route corridor segment
was roughly divided along the 25 m (82 ft) isobath. Roughly 90 percent
of the cable corridor is 25 m (82 ft) or less in depth. The Lease Area
is mostly located within depths exceeding 25 m (82 ft), where the
southern coastal migratory stock is unlikely to occur. Roughly 25
percent of the Lease Area survey segment is 25 m (82 ft) or less in
depth. Therefore, to account for the potential for mixed stocks within
the Project's offshore export cable route corridor, 90 percent of the
estimated take calculation in that area is assumed to be of individuals
in the southern coastal migratory stock and the remaining applied to
the Western North Atlantic offshore stock within the Project's offshore
export cable route corridor survey area. Within the Lease Area, 25
percent of the estimated take calculation is assumed to be of
individuals from the southern coastal migratory stock and the remaining
applied to the Western North Atlantic offshore stock.
The seasonality, feeding preferences, and habitat use by gray seals
often overlaps with that of harbor seals in the survey areas. The
density models produced by Roberts et al. (2016b, 2017, 2018) do not
differentiate between gray seals and harbor seals. Rather, the model
provides one density estimate for ``seals.'' Therefore, for the density
values reported in the IHA application, Dominion Energy assumed that
half of the seals were gray seals, and the other half harbor seals.
Dominion Energy used model Version 10 (Roberts et al. 2021) to
estimate the density of North Atlantic right whales. While two more
recent versions (Version 11 and Version 11.1) of the model are
available, the updates in these versions do not affect the densities in
the project area. The update in Version 11 pertains to Cape Cod Bay
only, which is outside of the CVOW project area. Density surfaces in
Version 11.1 did not change from Version 11; rather Version 11.1
includes uncertainty surfaces as well as density surfaces.
Table 4--Maximum Seasonal Densities of Marine Mammals in the Lease Area
and OECC
[Animals per 100 km\2\]
------------------------------------------------------------------------
Lease area/
Species OECC
------------------------------------------------------------------------
North Atlantic right whale.............................. 0.111
Humpback whale.......................................... 0.060
Fin whale............................................... 0.184
Sei whale............................................... 0.001
Minke whale............................................. 0.047
Sperm whale............................................. 0.003
Pilot whale............................................. 0.029
Bottlenose dolphin (Offshore)........................... 10.614
Bottlenose dolphin (Southern Migratory Coastal).........
Common dolphin.......................................... 2.163
Atlantic white-sided dolphin............................ 0.600
Atlantic spotted dolphin................................ 0.311
Risso's dolphin......................................... 0.008
Harbor porpoise......................................... 0.794
Gray seal............................................... 0.514
Harbor seal.............................................
------------------------------------------------------------------------
Take Calculation and Estimation
Here we describe how the information provided above is brought
together to produce a quantitative take estimate. In order to estimate
the number of marine mammals predicted to be exposed to sound levels
that would result in harassment, radial distances to predicted
isopleths corresponding to harassment thresholds are calculated, as
described above. Those distances are then used to calculate the area(s)
around the HRG survey equipment predicted to be ensonified to sound
levels that exceed harassment thresholds. The area estimated to be
ensonified to relevant thresholds in a single day (zone of influence
(ZOI)) is then calculated, based on areas predicted to be ensonified
around the HRG survey equipment (i.e., 141 m) and the estimated
trackline distance traveled per day by the survey vessel (i.e., 58 km).
Based on the maximum estimated distance to the Level B harassment
threshold of 141 m (Geo Marine Dual 400 Sparker 800J) and the maximum
estimated daily track line distance of 58 km, the ZOI is estimated to
be 16.4 km\2\ during Dominion Energy's planned HRG surveys. As
described above, this is a conservative estimate as it assumes the HRG
source that results in the greatest distance to the Level B harassment
isopleth will be operated at all times during all vessel days.
[[Page 33743]]
ZOI = (Distance/day x 2r) + [pi]r\2\
Where r is the linear distance from the source to the harassment
isopleth.
Potential daily Level B harassment takes are estimated by
multiplying the average annual marine mammal densities (animals/km\2\),
as described above, by the ZOI. Estimated numbers of each species taken
over the duration of the authorization are calculated by multiplying
the potential daily Level B harassment takes by the total number of
vessel days. The product is then rounded, to generate an estimate of
the total number of instances of harassment expected for each species
over the duration of the survey. A summary of this method is
illustrated in the following formula:
Estimated Take = D x ZOI x vessel days
Where D = average species density (animals/km\2\), ZOI = maximum
daily ensonified area to relevant threshold, and vessel days = 244.
Table 5 shows the authorized take by Level B harassment.
Table 5--Authorized Incidental Take of Marine Mammals and Authorized Takes as a Percentage of Population
----------------------------------------------------------------------------------------------------------------
Authorized Authorized
Estimated takes by Level takes as a
Species takes by Level B harassment Abundance percent of
B harassment \a\ stock
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale...................... 4.4 4 368 1.4
Humpback whale.................................. 2.4 2 1,396 <1
Fin whale....................................... 7.4 7 6,802 <1
Sei whale....................................... 0.04 0 6,292 0
Minke whale..................................... 1.9 2 21,968 <1
Sperm whale..................................... 0.0 0 4,349 0
Short-finned pilot whale........................ 1.2 20 28,924 <1
Long-finned pilot whale......................... 39,215 <1
Bottlenose dolphin (Western North Atlantic 279.2 279 62,851 <1
Offshore stock)................................
Bottlenose dolphin (Southern Migratory Coastal 147.1 147 3,751 3.9
stock).........................................
Common dolphin.................................. 86.6 4,880 172,974 2.8
Atlantic white-sided dolphin.................... 24.1 25 93,233 <1
Atlantic spotted dolphin........................ 12.5 4,880 39,921 12.4
Risso's dolphin................................. 0.3 25 35,215 <1
Harbor porpoise................................. 31.8 32 95,543 <1
Gray seal....................................... 12 12 451,431 <1
Harbor seal..................................... 12 12 61,336 <1
----------------------------------------------------------------------------------------------------------------
The authorized take listed in Table 5 generally reflects the
estimated take calculation described above (Estimated Take = D x ZOI x
vessel days). Further, take estimates for pilot whale and Risso's
dolphin have been modified to reflect group size estimates, and take
estimates for Atlantic spotted dolphin and common dolphin have been
modified to reflect previous monitoring in the CVOW project area, as
described further below.
Roberts et al. (2017) provides a density for all pilot whales that
does not differentiate between short-finned and long-finned pilot
whales, both of which could be in the project area. However, the take
estimate for pilot whales was further adjusted to account for group
size. Dominion Energy estimates that a group of 20 pilot whales (Reeves
et al. 2002) may be taken by Level B harassment during the surveys.
While the take calculation described above estimates no takes of
Risso's dolphin, Dominion Energy also conservatively estimates that a
group of 25 Risso's dolphins (Reeves et al. 2002) may be taken by Level
B harassment during the surveys. NMFS concurs with these estimates, and
has authorized 20 takes by Level B harassment of pilot whales and 25
takes by Level B harassment of Risso's dolphin.
Previous monitoring in the CVOW project area (Dominion Energy,
2021; 86 FR 21298; April 22, 2021 and 85 FR 81879; December 17, 2020)
indicates that the calculated take of Atlantic spotted dolphin and
common dolphin is too low. Given previous monitoring, Dominion Energy
conservatively estimated that two pods of common dolphins, each
averaging 10 individuals, may be taken by Level B harassment on each
vessel day (2 pods x 10 individuals x 244 vessel days = 4,880 takes by
Level B harassment of common dolphin). Dominion Energy conservatively
estimates that one pod of Atlantic spotted dolphins, averaging 20
individuals, may be taken by Level B harassment on each vessel day (1
pod x 20 individuals x 244 vessel days = 4,880 takes by Level B
harassment of Atlantic spotted dolphin). While these estimates are
likely conservative, NMFS concurs, and has authorized 4,880 takes by
Level B harassment of both common dolphin and Atlantic spotted dolphin.
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
[[Page 33744]]
impact being mitigated (likelihood, scope, range). It further considers
the likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, impact on
operations, and, in the case of a military readiness activity,
personnel safety, practicality of implementation, and impact on the
effectiveness of the military readiness activity.
Mitigation for Marine Mammals and Their Habitat
NMFS requires that the following mitigation measures be implemented
during Dominion Energy's planned marine site characterization surveys.
Pursuant to section 7 of the ESA, Dominion Energy is also required to
adhere to relevant Project Design Criteria (PDC) of the NMFS' 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 will be established around the HRG
survey equipment and monitored by protected species observers (PSOs):
<bullet> 500 m exclusion zone for North Atlantic right whales
during use of specified acoustic sources (sparkers, boomers, and non-
parametric sub-bottom profilers).
<bullet> 100 m exclusion zone 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
exclusion zone during the HRG survey, the vessel operator will adhere
to the shutdown procedures described below to minimize noise impacts on
the animals. These stated requirements will be included in the site-
specific training to be provided to the survey team.
Pre-Start Clearance
Marine mammal clearance zones will be established around the HRG
survey equipment and monitored by protected species observers (PSOs):
<bullet> 500 m for all ESA-listed marine mammals; and
<bullet> 100 m for all other marine mammals.
Dominion Energy 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 is
required if a marine mammal is sighted entering or within its
respective exclusion zone. The vessel operator must comply immediately
with any call for shutdown by the Lead PSO. Any disagreement between
the Lead PSO and vessel operator should be discussed only after
shutdown has occurred. Subsequent restart of the survey equipment can
be initiated if the animal has been observed exiting its respective
exclusion zone or 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, shutdown will occur.
If the acoustic source is shut down for reasons other than
mitigation (e.g., mechanical difficulty) for less than 30 minutes, it
may be activated again without ramp-up if 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 will be waived for pinnipeds and for small
delphinids of the following genera: Delphinus, Lagenorhynchus,
Stenella, and Tursiops. Specifically, if a delphinid from the specified
genera or a pinniped is visually detected approaching the vessel (i.e.,
to bow ride) or towed equipment, shutdown is not required. Furthermore,
if there is uncertainty regarding identification of a marine mammal
species (i.e., whether the observed marine mammal(s) belongs to one of
the delphinid genera for which shutdown is waived), PSOs must use best
professional judgement in making the decision to call for a shutdown.
Additionally, shutdown is required if a delphinid or pinniped 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).
Vessel Strike Avoidance
Dominion Energy 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.
[[Page 33745]]
<bullet> Vessel operators and crews must maintain a vigilant watch
for all protected species and slow down, stop their vessel, or alter
course, as appropriate and regardless of vessel size, to avoid striking
any protected species. A visual observer aboard the vessel must monitor
a vessel strike avoidance zone based on the appropriate separation
distance around the vessel (distances stated below). Visual observers
monitoring the vessel strike avoidance zone may be third-party
observers (i.e., PSOs) or crew members, but crew members responsible
for these duties must be provided sufficient training to (1)
distinguish protected species from other phenomena and (2) broadly to
identify a marine mammal as a right whale, other whale (defined in this
context as sperm whales or baleen whales other than right whales), or
other marine mammal;
<bullet> Members of the monitoring team will consult NMFS North
Atlantic right whale reporting system and Whale Alert, as able, for the
presence of North Atlantic right whales 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 (18.5 km/hr) speed restriction in specific areas designated by
NMFS for the protection of North Atlantic right whales 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 (18.5 km/hr) or less at all times;
<bullet> All vessels must reduce their speed to 10 knots (18.5 km/
hr) 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 right whales and other ESA-listed large whales;
<bullet> If a whale is observed but cannot be confirmed as a
species other than a right whale or other ESA-listed large whale, the
vessel operator must assume that it is a right whale and take
appropriate action;
<bullet> All vessels must maintain a minimum separation distance of
100 m from non-ESA listed whales;
<bullet> All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50m from all other
marine mammals, with an understanding that at times this may not be
possible (e.g., for animals that approach the vessel); and
<bullet> When marine mammals are sighted while a vessel is
underway, the vessel shall take action as necessary to avoid violating
the relevant separation distance (e.g., attempt to remain parallel to
the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area). If marine mammals are
sighted within the relevant separation distance, the vessel must reduce
speed and shift the engine to neutral, not engaging the engines until
animals are clear of the area. This does not apply to any vessel towing
gear or any vessel that is navigationally constrained.
Project-specific training will be conducted for all vessel crew
prior to the start of a survey and during any changes in crew such that
all survey personnel are fully aware and understand the mitigation,
monitoring, and reporting requirements. Prior to implementation with
vessel crews, the training program will be provided to NMFS for review
and approval. Confirmation of the training and understanding of the
requirements will be documented on a training course log sheet. Signing
the log sheet will certify that the crew member understands and will
comply with the necessary requirements throughout the survey
activities.
Based on our evaluation of the applicant's proposed measures, as
well as other measures considered by NMFS, NMFS has determined that the
required 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
survey area. Effective reporting is critical both to compliance as well
as ensuring that the most value is obtained from the required
monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density).
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) Action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas).
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors.
<bullet> How anticipated responses to stressors impact either: (1)
Long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks.
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat).
<bullet> Mitigation and monitoring effectiveness.
Monitoring Measures
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. Dominion Energy 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.
[[Page 33746]]
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) will 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
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 draft 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 monitoring reports must be submitted to
<a href="/cdn-cgi/l/email-protection#c39391ed8a9793ed8eacadaab7acb1aaada491a6b3acb1b7b083adaca2a2eda4acb5"><span class="__cf_email__" data-cfemail="1343413d5a47433d5e7c7d7a677c617a7d744176637c616760537d7c72723d747c65">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#da938e8af49ebbacb3a99ab4b5bbbbf4bdb5ac"><span class="__cf_email__" data-cfemail="ace5f8fc82e8cddac5dfecc2c3cdcd82cbc3da">[email protected]</span></a>, and
<a href="/cdn-cgi/l/email-protection#157b7873663b7274673b7c7b767c71707b6174793861747e70557b7a74743b727a63"><span class="__cf_email__" data-cfemail="ff9192998cd1989e8dd196919c969b9a918b9e93d28b9e949abf91909e9ed1989089">[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 North Atlantic right whale is observed at any time by PSOs or
personnel on any project vessels, during surveys or during vessel
transit, Dominion Energy must immediately report sighting information
to the NMFS North Atlantic Right Whale Sighting Advisory System: (866)
755-6622. North
[[Page 33747]]
Atlantic right whale sightings in any location may also be reported to
the U.S. Coast Guard via channel 16.
In the event that Dominion Energy personnel discover an injured or
dead marine mammal, Dominion Energy 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 would
include the following information:
1. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
2. Species identification (if known) or description of the
animal(s) involved;
3. Condition of the animal(s) (including carcass condition if the
animal is dead);
4. Observed behaviors of the animal(s), if alive;
5. If available, photographs or video footage of the animal(s); and
6. General circumstances under which the animal was discovered.
In the unanticipated event of a vessel strike of a marine mammal by
any vessel involved in the activities covered by the IHA, Dominion
Energy would report the incident to the NMFS OPR and the NMFS New
England/Mid-Atlantic Stranding Coordinator as soon as feasible. The
report would include the following information:
<bullet> Time, date, and location (latitude/longitude) of the
incident;
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Vessel's speed during and leading up to the incident;
<bullet> Vessel's course/heading and what operations were being
conducted (if applicable);
<bullet> Status of all sound sources in use;
<bullet> Description of avoidance measures/requirements that were
in place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
<bullet> Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
<bullet> Estimated size and length of animal that was struck;
<bullet> Description of the behavior of the marine mammal
immediately preceding and following the strike;
<bullet> If available, description of the presence and behavior of
any other marine mammals immediately preceding the strike;
<bullet> Estimated fate of the animal (e.g., dead, injured but
alive, injured and moving, blood or tissue observed in the water,
status unknown, disappeared); and
<bullet> To the extent practicable, photographs or video footage of
the animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any responses (e.g., intensity, duration), the context
of any responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of the mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS' 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 2, given that NMFS expects the anticipated effects of the
planned survey to be similar in nature. Where there are meaningful
differences between species or stocks--as is the case of the North
Atlantic right whale--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 of Specified Activities on Marine Mammals and their
Habitat section, non-auditory physical effects and vessel strike are
not expected to occur. NMFS expects that all potential takes will be in
the form of 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 evaluated and
authorized here, in reality, the Geo Marine Dual 400 Sparker will
likely not be used across the entire 24-hour period and across all 244
vessel days. The other acoustic sources operating below 200 kHz that
Dominion Energy has included in their application produce Level B
harassment zones below 22 m. Therefore, the ensonified area surrounding
each vessel is relatively small compared to the overall distribution of
the animals in the area and their use of the habitat. Feeding behavior
is not likely to be significantly impacted as prey species are mobile
and are broadly distributed throughout the survey area; therefore,
marine mammals that may be temporarily displaced during survey
activities are expected to be able to resume foraging once they have
moved away from areas with disturbing levels of underwater noise.
Because of the temporary nature of the disturbance and the availability
of similar habitat and resources in the surrounding area, the impacts
to marine mammals and the food sources that they utilize are not
expected to cause significant or long-term consequences for individual
marine mammals or their populations.
There are no rookeries, mating or calving grounds known to be
biologically important to marine mammals within the planned survey area
and there are no feeding areas known to be biologically important to
marine mammals within the planned survey area. There is no designated
critical habitat for any ESA-listed marine mammals in the planned
survey area.
North Atlantic Right Whales
The status of the North Atlantic right whale population is of
heightened concern and, therefore, merits
[[Page 33748]]
additional analysis. As noted previously, elevated North Atlantic right
whale mortalities began in June 2017, and there is an active UME.
Overall, preliminary findings support human interactions, specifically
vessel strikes and entanglements, as the cause of death for the
majority of right whales. As noted previously, the planned survey area
overlaps a migratory corridor BIA for North Atlantic right whales. Due
to the fact that the impacts of the planned survey are expected to be
of low severity (as described in the Potential Effects of Specified
Activities on Marine Mammals and their Habitat), the survey activities
are temporary, and the spatial extent of sound produced by the survey
will be very small relative to the spatial extent of the available
migratory habitat in the BIA (the overlap between the BIA and the
survey area covers approximately 4,000 km\2\ of the 269,448 km\2\ BIA),
right whale migration is not expected to be impacted by the survey.
Given the relatively small size of the ensonified area, it is unlikely
that prey availability would be adversely affected by HRG survey
operations. Required vessel strike avoidance measures will also
decrease risk of vessel strike during migration; no vessel strike is
expected to occur during Dominion Energy's planned activities. The 500-
m shutdown zone for right whales is conservative, considering the Level
B harassment isopleth for the most impactful acoustic source (i.e.,
sparker) 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 planned for use.
The authorization of take by Level B harassment of North Atlantic right
whale is not expected to exacerbate or compound upon the ongoing UME.
The limited authorized takes of North Atlantic right whale by Level B
harassment are expected to be of a short duration, and given the number
of estimated takes, repeated exposures of the same individual are not
expected. Further, given the relatively small size of the ensonified
area during Dominion Energy's planned activities, it is unlikely that
North Atlantic right whale prey availability would be adversely
affected. Accordingly, NMFS does not anticipate North Atlantic right
whales takes that may result from Dominion Energy's planned activities
will impact annual rates of recruitment or survival of any individuals.
Thus, any takes that occur will not result in population level impacts.
Other Marine Mammal Species With Active UMEs
As noted previously, there are several active UMEs occurring in the
vicinity of Dominion Energy's planned 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 (vessel strike or
entanglement). The UME does not yet provide cause for concern regarding
population-level impacts. Despite the UME, the relevant population of
humpback whales (the West Indies breeding population, or DPS) remains
stable at approximately 12,000 individuals.
Beginning in January 2017, elevated minke whale strandings have
occurred along the Atlantic coast from Maine through South Carolina,
with highest numbers in Massachusetts, Maine, and New York. This event
does not provide cause for concern regarding population level impacts,
as the likely population abundance is greater than 20,000 whales.
The required mitigation measures are expected to reduce the number
and/or severity of authorized takes for all species listed in Table 2,
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. As
discussed previously, take by Level A harassment (injury) is considered
unlikely, even absent mitigation, based on the characteristics of the
signals produced by the acoustic sources planned for use, and is not
authorized. Implementation of required mitigation will further reduce
this potential.
NMFS expects that takes will be in the form of short-term Level B
behavioral harassment by way of brief startling reactions and/or
temporary vacating of the area, or decreased foraging (if such activity
was occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals will only be exposed briefly to a small ensonified area that
might result in take. Additionally, required mitigation measures will
further reduce exposure to sound that could result in more severe
behavioral harassment.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect the species or stock through
effects on annual rates of recruitment or survival:
<bullet> No mortality or serious injury is anticipated or
authorized;
<bullet> No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, or authorized;
<bullet> Foraging success is not likely to be impacted as effects
on species that serve as prey species for marine mammals from the
survey are expected to be minimal;
<bullet> The availability of alternate areas of similar habitat
value for marine mammals to temporarily vacate the survey area during
the planned survey to avoid exposure to sounds from the activity;
<bullet> Take is anticipated to be by Level B behavioral harassment
only consisting of brief startling reactions and/or temporary avoidance
of the survey area;
<bullet> While the survey area is within areas noted as a migratory
BIA for North Atlantic right whales, the activities will occur in such
a comparatively small area such that any avoidance of the survey area
due to activities would not affect migration. In addition, mitigation
measures require shutdown at 500 m (almost four times the size of the
Level B harassment isopleth (141 m), which minimizes the effects of the
take on the species; and
<bullet> The required mitigation measures, including effective
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 required monitoring and
mitigation measures, NMFS finds that the total marine mammal take from
the planned 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
[[Page 33749]]
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 (by Level B harassment only) of
14 marine mammal species (with 15 managed stocks). The total amount of
authorized takes relative to the best available population abundance is
less than 33 percent for all stocks (Table 5).
Based on the analysis contained herein of the planned activity
(including the required 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.
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 evaluate our proposed action (i.e., the issuance of an IHA)
and alternatives with respect to potential impacts on the human
environment. This action is consistent with categories of activities
identified in Categorical Exclusion B4 of the Companion Manual for NAO
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 this action qualifies to be categorically excluded from further
NEPA review.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS Office of Protected Resources (OPR) consults internally whenever
we propose to authorize take for endangered or threatened species.
NMFS is authorizing take of North Atlantic right whale and fin
whales, which are listed under the ESA. On June 29, 2021 (revised
September 2021), GARFO completed an informal programmatic consultation
on the effects of certain site assessment and site characterization
activities to be carried out to support the siting of offshore wind
energy development projects off the U.S. Atlantic coast. Part of the
activities considered in the consultation are geophysical surveys such
as those proposed by Dominion Energy and for which we have authorize
take. GARFO concluded site assessment surveys are not likely to
adversely affect endangered species or adversely modify or destroy
critical habitat. NMFS has determined issuance of the IHA is covered
under the programmatic consultation; therefore, ESA consultation has
been satisfied.
Authorization
As a result of these determinations, NMFS has issued an IHA to
Dominion Energy authorizing take, by Level B harassment, incidental to
conducting marine site characterization surveys off of Virginia for a
period of one year, that includes the previously explained mitigation,
monitoring, and reporting requirements.
Dated: May 31, 2022.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2022-11987 Filed 6-2-22; 8:45 am]
BILLING CODE 3510-22-P
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