Notice2022-17522
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys Off New Jersey and New York in the Area of the Atlantic Shores Lease Area (OCS-A 0541)
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
August 16, 2022
Effective
August 10, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Atlantic Shores Offshore Wind Bight, LLC (Atlantic Shores Bight) to incidentally harass marine mammals during site characterization surveys off New Jersey and New York in the area of Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf Lease Area (OCS-A 0541). There are no changes from the proposed authorization in this final authorization.
Full Text
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<title>Federal Register, Volume 87 Issue 157 (Tuesday, August 16, 2022)</title>
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[Federal Register Volume 87, Number 157 (Tuesday, August 16, 2022)]
[Notices]
[Pages 50293-50316]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-17522]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC153]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Site Characterization Surveys Off
New Jersey and New York in the Area of the Atlantic Shores Lease Area
(OCS-A 0541)
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
Atlantic Shores Offshore Wind Bight, LLC (Atlantic Shores Bight) to
incidentally harass marine mammals during site characterization surveys
off New Jersey and New York in the area of Commercial Lease of
Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf Lease Area (OCS-A 0541). There are no changes from
the proposed authorization in this final authorization.
DATES: This Authorization is effective August 10, 2022 to August 9,
2023.
FOR FURTHER INFORMATION CONTACT: Jessica Taylor, 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/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>. In case of
problems accessing these documents, please call the contact listed
above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are proposed or, if the taking is limited to harassment, a notice of a
proposed IHA is provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth. The definitions
of all applicable MMPA statutory terms cited above are included in the
relevant sections below.
Summary of Request
On April 8, 2022, NMFS received a request from Atlantic Shores
Bight for an IHA to take marine mammals incidental to marine site
characterization survey activities off New Jersey and New York. The
application was deemed adequate and complete on May 23, 2022. Atlantic
Shores Bight's request is for take of 15 species of marine mammals by
Level B harassment only. Neither Atlantic Shores Bight nor NMFS expect
serious injury or mortality to result from this activity and,
therefore, an IHA is appropriate.
NMFS previously issued three IHAs to Atlantic Shores, the parent
company of Atlantic Shores Bight, for similar work in a comparable
geographic region (85 FR 21198, April 16, 2020; 86 FR 21289, April 22,
2021; 87 FR 24103, April 20, 2022). The 2020 monitoring report
confirmed that Atlantic Shores had previously implemented the required
mitigation and monitoring, and demonstrated that no impacts of a scale
or nature not previously analyzed or authorized had occurred as a
result of the activities conducted under the 2020
[[Page 50294]]
IHA. At the time of developing this IHA for Atlantic Shores Bight, the
Atlantic Shores 2021 (Renewal) monitoring report was not available as
the renewal IHA expired on April 19, 2022 (86 FR 21289; April 22,
2021). There are no changes from the proposed IHA to the final IHA.
On August 1, 2022, NMFS announced proposed changes to the existing
North Atlantic right whale vessel speed regulations to further reduce
the likelihood of mortalities and serious injuries to endangered right
whales from vessel collisions, which are a leading cause of the
species' decline and a primary factor in an ongoing Unusual Mortality
Event (87 FR 46921). Should a final vessel speed rule be issued and
become effective during the effective period of this IHA (or any other
MMPA incidental take authorization), the authorization holder would be
required to comply with any and all applicable requirements contained
within the final rule. Specifically, where measures in any final vessel
speed rule are more protective or restrictive than those in this or any
other MMPA authorization, authorization holders would be required to
comply with the requirements of the rule. Alternatively, where measures
in this or any other MMPA authorization are more restrictive or
protective than those in any final vessel speed rule, the measures in
the MMPA authorization would remain in place. These changes would
become effective immediately upon the effective date of any final
vessel speed rule and would not require any further action on NMFS's
part.
Description of Activity
Overview
As part of its overall marine site characterization survey
operations, Atlantic Shores Bight will conduct high-resolution
geophysical (HRG) surveys in the Lease Area (OCS)-A 0451 and along
potential submarine export cable routes (ECR) to a landfall location in
either New York or New Jersey. These two areas are collectively
referred to as the survey area. The survey area is approximately
1,375,710 acres (5,567.3 km\2\) and extends from 11 nautical miles (20
km) offshore of New Jersey and New York out to a maximum distance of
approximately 40 nautical miles (74 km).
The purpose of the surveys is to support the site characterization,
siting, and engineering design of offshore wind project facilities
including wind turbine generators, offshore substations, and submarine
cables within the Lease Area and along ECRs. A maximum of three survey
vessels may operate at any one time during the surveys. Underwater
sound resulting from Atlantic Shores Bight's site characterization
survey activities, specifically HRG surveys, has the potential to
result in incidental take of marine mammals in the form of behavioral
harassment. Atlantic Shores Bight will conduct HRG surveys within the
lease area and ECR survey areas over a period of up to 12 months.
Table 1 identifies the representative survey equipment that may be
used in support of planned geophysical survey activities. Operational
parameters presented in Table 1 were obtained from the following
sources: Crocker and Fratantonio (2016); manufacturer specifications;
personal communication with manufacturers; agency correspondence; and
Atlantic Shores/Atlantic Shores Bight. The make and model of the listed
geophysical equipment may vary depending on availability and the final
equipment choices will vary depending upon the final survey design,
vessel availability, and survey contractor selection. Geophysical
surveys are expected to use several equipment types concurrently in
order to collect multiple aspects of geophysical data along one
transect. Selection of equipment combinations is based on specific
survey objectives. All categories of representative HRG survey
equipment shown in Table 1 work with operating frequencies <180
kiloHertz (kHz).
Table 1--Summary of Representative Equipment Specifications With Operating Frequencies Below 180 kHz
--------------------------------------------------------------------------------------------------------------------------------------------------------
Typical pulse
Operating Operational Beamwidth durations Pulse
HRG survey equipment Representative equipment frequency source level ranges RMS90 repetition
ranges (kHz) (dBRMS) (degrees) (millisecond) rate (Hz)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sparker................................... Applied Acoustics Dura-Spark 0.01 to 1.9 203 180 3.4 2
240 [caret].
Geo Marine Geo-Source....... 0.2 to 5 195 180 7.2 0.41
CHIRPs.................................... Edgetech 2000-DSS........... 2 to 16 195 24 6.3 10
Edgetech 216................ 2 to 16 179 17, 20, or 24 10 10
Edgetech 424................ 4 to 24 180 71 4 2
Edgetech 512i............... 0.7 to 12 179 80 9 8
Pangeosubsea Sub-Bottom 4 to 12.5 190 120 4.5 44
ImagerTM.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: The operational source level for the Dura-Spark 240 is assigned based on the value closest to the field operational history of the Dura-Spark 240
[operating between 500-600 J] found in Table 10 in Crocker and Fratantonio (2016), which reports a 203 dBRMS (decibels root mean square) for 500 J
source setting and 400 tips. Because Crocker and Fratantonio (2016) did not provide other source levels for the Dura-Spark 240 near the known
operational range, the SIG ELC 820 @750 J at 5m depth assuming an omnidirectional beam width was considered as a proxy or comparison to the Dura-Spark
240. The corresponding 203 dBRMS level is considered a realistic and conservative value that aligns with the history of operations of the Dura-Spark
240 over three years of survey by Atlantic Shores.
The deployment of HRG survey equipment, including the equipment
planned for use during Atlantic Shores Bight's activities, produces
sound in the marine environment that has the potential to result in
harassment of marine mammals. 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 38067; June 27,
2022). Since that time, no changes have been made to Atlantic Shores
Bight'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 Atlantic Shores Bight
was published in the Federal Register on June 27, 2022 (87 FR 38067).
This proposed notice described, in detail, Atlantic Shores Bight's
activities, the marine mammal species that may be
[[Page 50295]]
affected by the activities, and the anticipated effects on marine
mammals. In that notice, we requested public input on the request for
authorization described therein, our analyses, the proposed
authorization, and any other aspect of the notice of proposed IHA, and
requested that interested persons submit relevant information,
suggestions, and comments. This proposed notice was available for a 30-
day public comment period.
During the 30-day public comment period, NMFS received letters from
two environmental non-governmental organizations (eNGOs) (Oceana, Inc.
and Clean Ocean Action (COA)). All comments, and NMFS' responses, are
provided below, and the letters are available online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-bight-llc-marine-site">https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-bight-llc-marine-site</a>. Please review the letters
for full details regarding the comments and underlying justification.
Comment 1: Oceana objects to NMFS' renewal process regarding the
extension of any one-year IHA with a truncated 15-day public comment
period, and suggested an additional 30-day public comment period is
necessary for any renewal request.
Response: NMFS' IHA renewal process meets all statutory
requirements. In prior responses to comments about IHA renewals (e.g.,
84 FR 52464; October 2, 2019 and 85 FR 53342, August 28, 2020), NMFS
has explained how the renewal process, as implemented, is consistent
with the statutory requirements contained in section 101(a)(5)(D) of
the MMPA, and further, promotes NMFS' goals of improving conservation
of marine mammals and increasing efficiency in the MMPA compliance
process. Therefore, we intend to continue implementing the renewal
process.
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 June 27, 2022 (87 FR 38067) 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 1 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 (NARW)
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 NARW
population estimate and state that NMFS should be using the estimate of
336 individuals presented by the New England Aquarium (<a href="https://www.neaq.org/about-us/news-media/press-kit/press-releases/population-of-north-atlantic-right-whales-continues-its-downward-trajectory/?fbclid=IwAR3VJcauSifygKxU4ZICau0Cd_fo2t4KU6RSJIK7WSmkGRLYLGHpjz1_WkY">https://www.neaq.org/about-us/news-media/press-kit/press-releases/population-of-north-atlantic-right-whales-continues-its-downward-trajectory/?fbclid=IwAR3VJcauSifygKxU4ZICau0Cd_fo2t4KU6RSJIK7WSmkGRLYLGHpjz1_WkY</a>).
Response: While NMFS agrees that the best available science should
be used for assessing NARW abundance estimates, we disagree that the
New England Aquarium site represents the most recent and best available
estimate for NARW abundance. Rather the revised abundance estimate
(368; 95 percent with a confidence interval of 356-378) published by
Pace (2021) (and subsequently included in the 2021 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
[[Page 50296]]
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 NARW 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 NARW or authorized take numbers, nor
affect our ability to make the required findings under the MMPA for
Atlantic Shores Bight's survey activities.
NMFS further notes that Oceana's comment seems 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 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 published and that the New England Aquarium site
referenced by the commenter 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 biologically important area (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 38067; June
27, 2022).
Lastly, as we stated in the notice of proposed IHA (87 FR 38067;
June 27, 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 5,567.3 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 NARW. 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 NARW,
as disturbance responses in NARW could lead to chronic stress or
habitat displacement, leading to an overall decline in their health and
fitness.
Response: NMFS agrees with Oceana that both acute and chronic
stressors are of concern for NARW conservation and recovery. We
recognize that acute stress from acoustic exposure is one potential
impact of these surveys, and that chronic stress can have fitness,
reproductive, etc. impacts at the population-level scale. NMFS has
carefully reviewed the best available scientific information in
assessing impacts to marine mammals, and recognizes that the surveys
have the potential to impact marine mammals through behavioral effects,
stress responses, and auditory masking. However, NMFS does not expect
that the generally short-term, intermittent, and transitory marine site
characterization survey activities planned by Atlantic Shores Bight
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 NARW, that are expected to further
reduce the duration and intensity of acoustic exposure, while limiting
the potential severity of any possible behavioral disruption. The
potential for chronic stress was evaluated in making the determinations
presented in NMFS' negligible impact analyses. Because NARW 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 5,567.3 km\2\ of the 269,448 km\2\ BIA). Thus, the
transitory nature of NARW at this location means it is unlikely for any
exposure to cause chronic effects, as Atlantic Shores Bight'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 NARW from Atlantic Shores Bight's
described survey activities.
Lastly, NMFS disagrees that the effects of Atlantic Shores Bight's
survey may contribute to stunted growth rates as suggested by Oceana's
comments. The activities associated with Atlantic Shores Bight's survey
are outside the scope of activities described in the Stewart et al.
(2022) paper and NMFS does not expect impacts such as these to result
from Atlantic Shores Bight's described survey activities.
Comment 4: Oceana and COA asserted that NMFS must fully consider
the discrete effects of each activity and the cumulative effects of the
suite of approved, proposed and potential activities on marine mammals
and NARW in particular and ensure that the cumulative effects are not
excessive before issuing or renewing an IHA.
Response: Neither the MMPA nor NMFS' codified implementing
regulations call for consideration of other unrelated activities and
their impacts on populations. The preamble for NMFS' implementing
regulations (54 FR 40338; September 29, 1989) states in response to
comments that the impacts from other past and ongoing anthropogenic
activities are to be incorporated into the negligible impact analysis
via their impacts on the baseline. Consistent with that direction, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline, e.g., as reflected in the density/distribution and status of
the species, population size and growth rate, and other relevant
stressors. The 1989 final rule for the MMPA implementing regulations
also addressed public 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
[[Page 50297]]
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, Atlantic Shores Bight 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 substantially similar activities, in similar locations,
e.g., the 2017 Ocean Wind, LLC EA for site characterization surveys off
New Jersey. Cumulative impacts regarding issuance of IHAs for site
characterization survey activities such as those planned by Atlantic
Shores Bight 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 Atlantic Shores Bight'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 Atlantic Shores Bight 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 Biological
Opinion remains valid.
Comment 5: 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 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.
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 NARW 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 6: Oceana suggests that Protected Species Observer (PSOs)
complement their survey efforts using additional technologies, such as
infrared detection devices when in low-light conditions.
Response: NMFS agrees with Oceana regarding this suggestion and a
requirement to utilize a thermal (infrared) device during low-light
conditions was included in the proposed Federal Register notice. That
requirement is included as a requirement of the issued IHA.
Comment 7: Oceana 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
NARW 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 Atlantic Shores Bight's activity and have determined
that based on the nature of the activity and the required mitigation
measures specific to vessel strike avoidance included in the IHA,
potential for vessel strike is so low as to be discountable. 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 knots (kn) (18.5
kilometer/hour (km/hour)) or less speed restrictions in any Seasonal
Management Areas (SMA), Dynamic Management Areas (DMA) or Slow Zone
while underway, and check daily for information regarding the
establishment of mandatory or voluntary vessel strike avoidance areas
(SMAs, DMAs, Slow Zones) and information regarding NARW sighting
locations; a requirement that all vessels greater than or equal to 19.8
m in overall length operating from November 1 through April 30 operate
at speeds of 10 kn (18.5 km/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 (18.5 km/hr) 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
[[Page 50298]]
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 8: Oceana suggests that NMFS require vessels maintain a
separation distance of at least 500 m from NARW 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
NARW at all times was included in the proposed Federal Register notice
and was included as a requirement in the issued IHA.
Comment 9: Oceana recommended that the IHA should require all
vessels supporting site characterization to be equipped with and using
Class A Automatic Identification System (AIS) devices at all times
while on the water. Oceana suggested this requirement should apply to
all vessels, regardless of size, associated with the survey.
Response: NMFS is generally supportive of the idea that vessels
involved with survey activities be equipped with and using Class A
Automatic Identification System (devices) at all times while on the
water. Indeed, there is a precedent for NMFS requiring such a
stipulation for geophysical surveys in the Atlantic Ocean (38 FR 63268,
December 7, 2018); however, these activities carried the potential for
much more significant impacts than the marine site characterization
surveys to be carried out by Atlantic Shores Bight, with the potential
for both Level A and Level B harassment take. Given the small isopleths
and small numbers of take authorized by this IHA, NMFS does not agree
that the benefits of requiring AIS on all vessels associated with the
survey activities outweighs and warrants the cost and practicability
issues associated with this requirement.
Comment 10: Oceana asserts that the IHA must include requirements
to hold all vessels associated with site characterization surveys
accountable to the IHA requirements, including vessels owned by the
developer, contractors, employees, and others regardless of ownership,
operator, and contract. They state that exceptions and exemptions will
create enforcement uncertainty and incentives to evade regulations
through reclassification and re-designation. 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 Atlantic Shores Bight, the vessel
operators, the lead PSO, and any other relevant designees of Atlantic
Shores Bight operating under the authority of this IHA. The IHA also
states that Atlantic Shores Bight must ensure that the vessel operator
and other relevant vessel personnel, including the PSO team, are
briefed on all responsibilities, communication procedures, marine
mammal monitoring protocols, operational procedures, and IHA
requirements prior to the start of survey activity, and when relevant
new personnel join the survey operations.
Comment 11: 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 recommends requirements to report all visual and
acoustic detections of NARW and any dead, injured, or entangled marine
mammals to NMFS or the Coast Guard as soon as possible and no later
than the end of the PSO shift. Oceana states that to foster stakeholder
relationships and allow public engagement and oversight of the
permitting, the IHA should require all reports and data to be
accessible on a publicly available website.
Response: NMFS agrees with the need for reporting and indeed, the
MMPA calls for IHAs to incorporate reporting requirements. As included
in the proposed IHA, the final IHA includes requirements for reporting
that supports Oceana's recommendations.
Further, the draft IHA and final IHA stipulate that if a NARW is
observed at any time by any survey vessels, during surveys or during
vessel transit, Atlantic Shores Bight must immediately report sighting
information to the NMFS NARW Sighting Advisory System within two hours
of occurrence, when practicable, or no later than 24 hours after
occurrence. Atlantic Shores Bight may also report the sighting to the
U.S. Coast Guard. Additionally, Atlantic Shores Bight 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 NARW 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 NARW 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>.
Comment 12: Oceana recommends a shutdown requirement if a NARW 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.
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
38067; July 27, 2022), and which are included in the final IHA,
including the stipulation that geophysical survey equipment must be
immediately shut down if any marine mammal is observed within or
entering the relevant shutdown zone while geophysical survey equipment
is operational. There is no exemption for the shutdown requirement for
NARW and ESA-listed species.
Atlantic Shores Bight 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
[[Page 50299]]
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.
Comment 13: Oceana recommended increasing the clearance zone to
1,000 m for NARW with requirements for HRG survey vessels to use PSOs
and Passive Acoustic Monitoring (PAM) to establish and monitor these
zones.
Response: NMFS notes that the 500 m Exclusion Zone for NARW exceeds
the modeled distance to the largest 160 dB Level B harassment isopleth
(141 m during sparker use) by a conservative margin to be extra
cautious. Commenters do not provide a compelling rationale for why the
clearance zone should be even larger. Given that these surveys are
relatively low impact and that, regardless, NMFS has prescribed a
precautionary NARW Exclusion Zone that is larger (500 m) than the
conservatively estimated largest harassment zone (141 m), NMFS has
determined that the clearance zone is appropriate.
Regarding the use of acoustic monitoring to implement the clearance
zones, NMFS does not anticipate that acoustic monitoring would be
effective for a variety of reasons discussed below and therefore has
not required it in this IHA. 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.
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 NARW) is not
typically effective because the noise from the vessel, the flow noise,
and the cable noise are in the same frequency band and will mask the
vast majority of baleen whale calls. Vessels produce low-frequency
noise, primarily through propeller cavitation, with main energy in the
5-300 Hertz (Hz) frequency range. Source levels range from about 140 to
195 decibel (dB) re 1 [mu]Pa (micropascal) at 1 m (NRC, 2003;
Hildebrand, 2009), depending on factors such as ship type, load, and
speed, and ship hull and propeller design. Studies of vessel noise show
that it appears to increase background noise levels in the 71-224 Hz
range by 10-13 dB (Hatch et al. 2012; McKenna et al. 2012; Rolland et
al. 2012). PAM systems employ hydrophones towed in streamer cables
approximately 500 m behind a vessel. Noise from water flow around the
cables and from strumming of the cables themselves is also low
frequency and typically masks signals in the same range. Experienced
PAM operators participating in a recent workshop (Thode et al. 2017)
emphasized that a PAM operation could easily report no acoustic
encounters, depending on species present, simply because background
noise levels rendered any acoustic detection impossible. The same
workshop report stated that a typical eight-element array towed 500 m
behind a vessel could be expected to detect delphinids, sperm whales,
and beaked whales at the required range, but not baleen whales, due to
expected background noise levels (including seismic noise, vessel
noise, and flow noise).
There are several additional reasons why we do not agree that use
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM
can be an important tool for augmenting detection capabilities in
certain circumstances, its utility in further reducing impact during
HRG survey activities is limited. First, for this activity, the area
expected to be ensonified above the Level B harassment threshold is
relatively small (a maximum of 141 m); this reflects the fact that, to
start with, the source level is comparatively low and the intensity of
any resulting impacts would be lower level and, further, it means that
inasmuch as PAM will only detect a portion of any animals exposed
within a zone, the overall probability of PAM detecting an animal in
the harassment zone is low. Together these factors support the limited
value of PAM for use in reducing take with smaller zones. PAM is only
capable of detecting animals that are actively vocalizing, while many
marine mammal species vocalize infrequently or during certain
activities, which means that only a subset of the animals within the
range of the PAM would be detected (and potentially have reduced
impacts). Additionally, localization and range detection can be
challenging under certain scenarios. For example, odontocetes are fast
moving and often travel in large or dispersed groups which makes
localization difficult.
Given that the effects to marine mammals from the types of surveys
authorized in this IHA are expected to be limited to low level
behavioral harassment even in the absence of mitigation, the limited
additional benefit anticipated by adding this detection method
(especially for NARW 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 14: 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 38067; June 27,
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. 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. Operators should ramp up
sources to half power for 5 minutes and then proceed to full power. A
30-minute pre-start clearance observation period must occur prior to
the start of ramp-up (or initiation of source use if ramp-up is not
technically feasible). 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 clearance
zones.
Comment 15: COA does not agree with NMFS' negligible impact
determination for NARW and states that NMFS provides an inaccurate
characterization of impacts to NARW.
Response: NMFS disagrees with the COA's position regarding the
negligible impact analysis, and they do not provide a reasoned basis
for finding that the effects of the specified activity would be greater
than negligible on NARW. The Negligible Impact Analysis and
Determination section of the proposed IHA (87 FR 38067; June 27, 2022)
provides a detailed qualitative discussion supporting NMFS'
[[Page 50300]]
determination that any anticipated impacts from this action would be
negligible. The section contains a number of factors that were
considered by NMFS based on the best available scientific data and why
we concluded that impacts resulting from the specified activity are not
reasonably expected to, or reasonably likely to, adversely affect the
species or stock through effects on annual rates of recruitment or
survival.
With specific regard to NARW, we note that take is authorized for
only a very small percentage of the right whale population (see Table
9). However, the numbers of potential incidents of take or animals
taken are only part of an assessment and are not, alone, decisively
indicative of the degree of impact. In order to adequately evaluate the
effects of noise exposure at the population level, the total number of
take incidents must be further interpreted in context of relevant
biological and population parameters and other biological,
environmental, and anthropogenic factors and in a spatially and
temporally explicit manner. The effects to individuals of a ``take''
are not necessarily equal. Some take events represent exposures that
only just exceed a Level B harassment threshold, which would be
expected to result in lower-level impacts, while other exposures occur
at higher received levels and would typically be expected to have
comparatively greater potential impacts on an individual. Further,
responses to similar received levels may result in significantly
different impacts on an individual dependent upon the context of the
exposure or the status of the individuals (e.g., if it occurred in an
area and time where concentrated feeding was occurring, or to
individuals weakened by other effects). In this case, NMFS reiterates
that no such higher level takes are expected to occur. The maximum
anticipated Level B harassment zone is 141 m, a distance smaller than
the precautionary shutdown zone of 500 m. To the extent that any
exposure of NARW does occur, it would be expected to result in lower-
level impacts that are unlikely to result in significant or long-
lasting impacts to the exposed individual and, given the relatively
small amount of exposures expected to occur, it is unlikely that these
exposures would result in population-level impacts. NMFS acknowledges
that impacts of a similar degree on a proportion of the individuals in
a stock may have differing impacts to the stock based on its status,
i.e., smaller stocks may be less able to absorb deaths or reproductive
suppression and maintain similar growth rates as larger stocks.
However, even given the precarious status of the NARW, the low-level
nature of the impacts expected to occur from this action and the small
number of individuals affected supports NMFS' determination that
population-level impacts will not occur. The commenters provide no
substantive reasoning to contradict this finding, and do not support
their assertions of effects greater than NMFS has assumed may occur.
Comment 16: COA is concerned that habitat displacement could
significantly increase the risk of ship-strike to NARW from outside the
survey area.
Response: NMFS does not anticipate that NARW would be displaced
from the area where Atlantic Shores Bight's marine site
characterization surveys would occur, and COA does not provide evidence
that this effect should be a reasonably anticipated outcome of the
specified activity. Similarly, NMFS is not aware of any scientific
information suggesting that the survey activity would drive marine
mammals into shipping lanes, and disagrees that this would be a
reasonably anticipated effect of the specified activities. The take by
Level B harassment authorized by NMFS is precautionary but considered
unlikely, as NMFS' take estimation process does not account for the use
of extremely precautionary mitigation measures, e.g., the requirement
for Atlantic Shores Bight to implement a shutdown zone that is more
than three times as large as the estimated harassment zone. These
requirements are expected to largely eliminate the actual occurrence of
Level B harassment events and, to the extent that harassment does
occur, would minimize the duration and severity of any such events.
Therefore, even if a NARW was in the area of the cable corridor
surveys, a displacement impact is not anticipated.
Although the primary stressor to marine mammals from the specified
activities is acoustic exposure to the sound source, NMFS takes
seriously the risk of vessel strike and has prescribed measures
sufficient to avoid the potential for ship strike to the extent
practicable. NMFS has required these measures despite a very low
likelihood of vessel strike; vessels associated with the survey
activity will add a discountable amount of vessel traffic to the
specific geographic region and, furthermore, vessels towing survey gear
travel at very slow speeds (i.e., roughly 4-5 kn; 7.4-9.3 km/h).
Comment 17: COA asserted that NMFS is overestimating the population
abundance for NARW.
Response: NMFS agrees that the most up to date population estimate
should be used for assessing NARW abundance estimates. The revised
abundance estimate (368; 95 percent with a confidence interval of 356-
378) published by Pace (2021) (and subsequently included in the 2021
Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>)), which was used in the proposed IHA, provides the most recent
and best available estimate, and introduced improvements to NMFS' right
whale abundance model. Specifically, Pace (2021) looked at a different
way of characterizing annual estimates of age-specific survival. NMFS
considered all relevant information regarding NARW, including the
information cited by the commenters. However, NMFS relies on the SAR.
Recently, NMFS updated its species web page to recognize the population
estimate for NARW is now below 350 animals (<a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>), as COA
mentioned. 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 NARW or authorized take numbers, nor
affect our ability to make the required findings under the MMPA for
Atlantic Shores Bight's survey activities.
As stated above, NMFS notes that 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 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.
Lastly, as we stated previously and in the notice of proposed IHA
(87 FR 38067; June 27, 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 and foraging
habitat (which is not affected by the specified activity). The survey
area is small (approximately 5,567.3 km\2\ total area) 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
[[Page 50301]]
the impacts expected to result from the planned survey, such impacts
are not expected to result in disruption to biologically important
behaviors.
Comment 18: Oceana states that Atlantic Shores Bight's activities
will increase vessel traffic in and around the project area and that
the IHA must include a vessel traffic plan to minimize the effects of
increased vessel traffic.
Response: NMFS disagrees with Oceana's statement that the IHA must
require a vessel traffic plan. During HRG surveys there are no service
vessels required. NMFS agrees that a vessel plan may be potentially
appropriate for project construction, but it is not needed for marine
site characterization surveys.
Comment 19: COA is concerned regarding the number of harbor seals
that could be impacted by the activities, as well as a lack of baseline
data being available for harbor seals off New Jersey.
Response: We appreciate the concern expressed by COA. NMFS utilizes
the best available science when analyzing which species may be impacted
by an applicant's proposed activities. Based on information found in
the scientific literature, as well as based on density models developed
by Duke University, all marine mammal species included in the proposed
Federal Register notice have some likelihood of occurring in Atlantic
Shores Bight's survey area. Furthermore, the MMPA requires us to
evaluate the effects of the specified activities in consideration of
the best scientific evidence available and, if the necessary findings
are made, to issue the requested take authorization. The MMPA does not
allow us to delay decision making in hopes that additional information
may become available in the future.
Regarding the lack of baseline information cited by COA, with
specific concern pointed out for harbor seals, NMFS points towards two
sources of information for marine mammal baseline information: the
Ocean/Wind Power Ecological Baseline Studies, January 2008--December
2009 completed by the New Jersey Department of Environmental Protection
in July 2010 (<a href="https://dspace.njstatelib.org/xmlui/handle/10929/68435">https://dspace.njstatelib.org/xmlui/handle/10929/68435</a>)
and the Atlantic Marine Assessment Program for Protected Species
(AMAPPS; <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected">https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected</a>)
with annual reports available from 2010 to 2020 (<a href="https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species">https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species</a>) that cover the areas across the
Atlantic Ocean. NMFS has duly considered this and all available
information.
Based on the information presented, NMFS has determined that no new
information has become available, nor do the commenters present
additional information, that would change our determinations since the
publication of the proposed notice.
Changes From the Proposed IHA to Final IHA
NMFS considered all public comments received and determined that no
changes to the final IHA were necessary.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions, incorporated here by reference, instead of
reprinting the information. Additional information regarding population
trends and threats may be found in NMFS' Stock Assessment Reports
(SARs; <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these
species (e.g., physical and behavioral descriptions) may be found on
NMFS' website (<a href="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
Endangered Species Act (ESA) and potential biological removal (PBR),
where known. 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
serious injury or mortality is anticipated or authorized, PBR and
annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species or
stocks 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. 2021 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 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--Species Likely Impacted by the Specified Activities
----------------------------------------------------------------------------------------------------------------
Stock
abundance
(CV,
ESA/MMPA Nmin,
Common name Scientific name Stock status; most PBR Annual M/
strategic recent SI \3\
(Y/N) \1\ abundance
survey)
\2\
----------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale.... Eubalaena Western Atlantic E/D, Y 368 (0; 0.7 7.7
glacialis. 364;
2019) \5\
Humpback whale................ Megaptera Gulf of Maine... -/-, Y 1,396 (0; 22 12.15
novaeangliae. 1,380;
2016)
[[Page 50302]]
Fin whale..................... Balaenoptera Western North E/D, Y 6,802 11 1.8
physalus. Atlantic. (0.24;
5,573;
2016)
Sei whale..................... Balaenoptera Nova Scotia..... E/D, Y 6,292 6.2 0.8
borealis. (1.02;
3,098;
2016)
Minke whale................... Balaenoptera Canadian East -/-, N 21,968 170 10.6
acutorostrata. Coastal. (0.31;
17,002;
2016)
----------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
----------------------------------------------------------------------------------------------------------------
Sperm whale................... Physeter North Atlantic.. E/D, Y 4,349 3.9 0
macrocephalus. (0.28;
3,451;
2016)
Long-finned pilot whale....... Globicephala Western North -/-, N 39,215 306 29
melas. Atlantic. (0.3;
30,627;
2016)
Atlantic white-sided dolphin.. Lagenorhynchus Western North -/-, N 93,233 544 27
acutus. Atlantic. (0.71;
54,443;
2016)
Bottlenose dolphin............ Tursiops Western North -/-, N 62,851 519 28
truncatus. Atlantic (0.23;
Offshore. 51,914;
2016)
Common dolphin................ Delphinus Western North -/-, N 172,974 1,452 390
delphis. Atlantic. (0.21,
145,216,
2016)
Atlantic spotted dolphin...... Stenella Western North -/-, N 39,921 320 0
frontalis. Atlantic. (0.27;
32,032;
2016)
Risso's dolphin............... Grampus griseus. Western North -/-, N 35,215 301 34
Atlantic Sock. (0.19;
30,051;
2016)
Harbor porpoise............... Phocoena Gulf of Maine/ -/-, N 95,543 851 164
phocoena. Bay of Fundy. (0.31;
74,034;
2016)
----------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
----------------------------------------------------------------------------------------------------------------
Harbor seal................... Phoca vitulina.. Western North -/-, N 61,336 1,729 339
Atlantic. (0.08;
57,637;
2018)
Gray seal \4\................. Halichoerus Western North -/-, N 27,300 1,389 4,453
grypus. Atlantic. (0.22;
22,785;
2018)
----------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species
is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one
for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and
likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>. CV is the coefficient of variation; Nmin is the minimum estimate
of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury
from all sources combined (e.g., commercial fisheries, ship strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. populations only. Total stock
abundance (including animals in Canada) is approximately 451,431. The annual M/SI value given is for the total
stock.
\5\ The draft 2022 SARs have yet to be released; however, NMFS has updated its species web page to recognize the
population estimate for NARWs is now below 350 animals (<a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>).
[[Page 50303]]
A detailed description of the species likely to be affected by
Atlantic Shores Bight's activities, including information regarding
population trends, threats, and local occurrence, was provided in the
Federal Register notice for the proposed IHA (87 FR 38067; June 27,
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. 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, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Note that no direct measurements of
hearing ability have been successfully completed for mysticetes (i.e.,
low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in Table 3.
Table 3--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al., 2007) and PW pinniped (approximation).
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.
15 marine mammal species (13 cetaceans and 2 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), seven 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 38067; June 27, 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 38067; June 27, 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 determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes are by Level B harassment only, in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to HRG acoustic sources. Based on the nature of
the activity, Level A harassment is neither anticipated (even absent
mitigation) nor authorized. Level A harassment (injury) is considered
unlikely based on the characteristics of the signals produced by the
acoustic sources planned for use. Implementation of required mitigation
detailed in the Mitigation section below further reduces the potential
for Level A harassment. As described previously, no serious injury or
mortality is anticipated or authorized for this activity. Below we
describe how the authorized take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day; (3) the
[[Page 50304]]
density or occurrence of marine mammals within these ensonified areas;
and, (4) the number of days of activities. We note that while these
factors can contribute to a basic calculation to provide an initial
prediction of potential 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 authorized
take estimates.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment--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 or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the receiving animals (hearing, motivation,
experience, demography, life stage, depth) and can be difficult to
predict (e.g., Southall et al., 2007, 2021, Ellison et al., 2012).
Based on what the available science indicates and the practical need to
use a threshold based on a metric that is both predictable and
measurable for most activities, NMFS typically uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS generally predicts that marine mammals are
likely to be behaviorally harassed in a manner considered to be Level B
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS SPL) of 120 dB (referenced
to 1 micropascal (re 1 [mu]Pa)) when exposed to underwater
anthropogenic noise above received levels of 160 dB re 1 [mu]Pa (rms)
for the impulsive sources (i.e., sparkers) and non-impulsive,
intermittent sources (e.g., CHIRPs) evaluated here for Atlantic Shores
Bight's activities.
Atlantic Shores Bight's HRG surveys include the use of non-
impulsive, intermittent (CHIRPs) and impulsive (sparkers) sources, and
therefore the RMS SPL threshold of 160 dB re 1 [mu]Pa is applicable.
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). Atlantic
Shores Bight's HRG survey activities include the use of impulsive
(sparkers) and non-impulsive (CHIRPs) sources.
These thresholds are provided in the table below. The references,
analysis, and methodology used in the development of the thresholds are
described in 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>.
Table 4--Thresholds Identifying the Onset of Permanent Threshold Shift
----------------------------------------------------------------------------------------------------------------
PTS onset thresholds \*\ (received level)
Hearing group ------------------------------------------------------------------------
Impulsive Non-impulsive
----------------------------------------------------------------------------------------------------------------
Low-Frequency (LF) Cetaceans........... Cell 1: L0-pk,flat: 219 Cell 2: LE,LF,24h: 199 dB.
dB; LE,LF,24h: 183 dB..
Mid-Frequency (MF) Cetaceans........... Cell 3: L0-pk,flat: 230 Cell 4: LE,MF,24h: 198 dB.
dB; LE,MF,24h: 185 dB.
High-Frequency (HF) Cetaceans.......... Cell 5: L0-pk,flat: 202 Cell 6: LE, HF,24h: 173 dB.
dB; LE,HF,24h: 155 dB.
Phocid Pinnipeds (PW) (Underwater)..... Cell 7: L0-pk.flat: 218 Cell 8: LE,PW,24h: 201 dB.
dB; LE,PW,24h: 185 dB.
Otariid Pinnipeds (OW)................. Cell 9: L0-pk,flat: 232 Cell 10: LE,OW,24h: 219 dB.
(Underwater)........................... dB; LE,OW,24h: 203 dB.
----------------------------------------------------------------------------------------------------------------
* Dual metric thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS
onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds
associated with impulsive sounds, these thresholds are recommended for consideration.
Note: Peak sound pressure level (L0-pk) has a reference value of 1 [micro]Pa, and weighted cumulative sound
exposure level (LE,) has a reference value of 1[micro]Pa\2\s. In this Table, thresholds are abbreviated to be
more reflective of International Organization for Standardization standards (ISO 2017). The subscript ``flat''
is being included to indicate peak sound pressure are flat weighted or unweighted within the generalized
hearing range of marine mammals (i.e., 7 Hz to 160 kHz). The subscript associated with cumulative sound
exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF
cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The weighted
cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure
levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the
conditions under which these thresholds will be exceeded.
The 2020 Federal Register notice of proposed IHA for Atlantic
Shores' HRG surveys (85 FR 7926; February 12, 2020) previously analyzed
the potential for Level A harassment (refer to Table 5 in that
notification and additional discussion therein).
Similar to the past IHAs issued to Atlantic Shores, the activities
for 2022-2023 include the use of impulsive (i.e., sparkers) and non-
impulsive (e.g., CHIRPs) sources, and Atlantic Shores Bight did not
request authorization of take by Level A harassment. The locations,
species, survey durations, equipment used, and source levels authorized
are all of a similar scope previously analyzed for Atlantic Shores'
surveys. NMFS concluded for past surveys that Level A harassment was
not a reasonably likely outcome for marine mammals exposed to noise
through use of similar impulsive and non-impulsive HRG sources,
therefore, the same conclusion applies to the sources authorized for
use here. Therefore, the potential for Level A harassment is not
evaluated further in this document and no take by Level A harassment is
authorized by NMFS. Note that the mitigation measures will further
reduce the potential for Level A harassment.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss
coefficient.
[[Page 50305]]
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 scientific information on source levels
associated with HRG survey 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 where 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) may be used instead. Table 1
shows the HRG equipment types that may be used during the authorized
surveys and the source levels associated with those HRG equipment
types. The computations and results from the Level B harassment
ensonified area analysis are displayed in Table 5.
Table 5--Information Inputs and Resulting Distances to Level B Threshold (m) for Representative Acoustic Sources
--------------------------------------------------------------------------------------------------------------------------------------------------------
Source information Input values into spreadsheet Computed Values
--------------------------------------------------------------------------------------------------------------------------------------------------------
Slant Horizontal
Operating Operational Beamwidth threshold threshold
HRG survey equipment type Representative frequencies source level ranges Water depth range to Level range to Level
equipment ranges (kHz) ranges (dBRMS) (degree) (m) B threshold B threshold
(m) (m)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sparker........................... SIG ELC 820 sparker 0.01 203 180 5 141 141
at 750J *.
Geo Marine Survey 0.2 195 180 5 56 56
System 2D SUHRS.
CHIRPs............................ Edgetech 2000-DSS... 2 195 24 5 56 1.1
Edgetech 216........ 2 179 24 5 9 1.1
Edgetech 424........ 4 180 71 10 10 5.8
Edgetech 512i....... 0.7 179 80 10 9 5.8
Pangeosubsea Sub- 4 190 120 5 32 8.7
Bottom ImagerTM.
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Used as a proxy for the Applied Acoustics Dura-Spark 240 because the specific energy setting isn't described in Crocker and Franantonio (2016).
Results of modeling using the methodology described and shown above
indicated that, of the HRG survey equipment planned for use by Atlantic
Shores Bight that has the potential to result in Level B harassment of
marine mammals, the Applied Acoustics Dura-Spark 240 would produce the
largest Level B harassment isopleth (141 m; please refer to Table 6).
Although Atlantic Shores Bight does not expect to use sparker
sources on all planned survey days and during the entire duration that
surveys are likely to occur, Atlantic Shores Bight assumes, for
purposes of analysis, that the sparker would be used on all survey
days. This is a conservative approach, as the actual sources used on
individual survey days may produce smaller harassment distances, and
NMFS agrees with this approach.
The Level B harassment isopleth distance of 141 m generated for the
Dura-Spark 240 was used as the ``r'' input to calculate the zone of
influence (ZOI) around the survey vessel, which is the maximum
ensonified area around the sound source over a 24 hour period. The
following formula for a mobile source was used to calculate the ZOI:
Mobile Source ZOI = (Distance/day x 2r) + [pi]r2
Where:
Distance/day = the maximum distance a survey vessel could travel in
a 24-hour period;
r = the maximum radial distance from a given sound source to the
NOAA Level A or Level B harassment thresholds.
For the purpose of the Atlantic Shores Bight HRG surveys, the total
distance/day has been estimated to be approximately 55.0 km in the
survey area. Based upon a daily survey distance of 55 km/day and a
maximum radial distance to the Level B harassment threshold (141 m, see
Tables 6, 7), an area of 15.57 km\2\ will be ensonified to the Level B
harassment threshold across both survey sites during Atlantic Shores
Bight's authorized surveys (Table 6).
Table 6--Maximum HRG Survey Area Distances and Daily Ensonified Areas
----------------------------------------------------------------------------------------------------------------
Number of Survey Maximum radial Calculated Total annual
Survey area active survey distances per distance (r) Isopleth per ensonified
days day in km in m day (km\2\) area (km\2\)
----------------------------------------------------------------------------------------------------------------
Lease Area...................... 180 55 141 15.57 2,802.6
ECR Survey Area................. 180 2,802.6
----------------------------------------------------------------------------------------------------------------
[[Page 50306]]
As described above, this is a conservative estimate as it assumes
the HRG source that results in the greatest isopleth distance to the
Level B harassment threshold would be operated at all times during the
entire survey, which is not expected to ultimately occur.
Marine Mammal Occurrence
In this section we provide information about the occurrence of
marine mammals, including density or other relevant information 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
scientific 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.,
2016b, 2017, 2018, 2020).
The density data presented by Roberts et al., (2016b, 2017, 2018,
2020) 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., 2016a). In subsequent years, certain
models have been updated based on additional data as well as certain
methodological improvements. More information is available online at
<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>. Marine mammal density
estimates in the survey area (animals/km\2\) were obtained using the
most recent model results for all taxa (Roberts et al., 2016b, 2017,
2018, 2020). The updated models incorporate additional sighting data,
including sightings from NOAA's Atlantic Marine Assessment Program for
Protected Species (AMAPPS) surveys.
For the exposure analysis, density data from Roberts et al.,
(2016b, 2017, 2018, 2020) were mapped using a geographic information
system (GIS). For each of the survey areas (i.e., Lease Survey Area,
ECR Survey Area), the densities of each species as reported by Roberts
et al. (2016b, 2017, 2018, 2020) were averaged by season; thus, a
density was calculated for each species for spring, summer, fall and
winter. The seasons were defined as follows: Spring (March-May); summer
(June-August); fall (September-November); winter (December-February).
To be conservative, the greatest seasonal density calculated for each
species was then carried forward in the exposure analysis. Estimated
seasonal densities (animals per km\2\) of all marine mammal species
that may be taken by the survey, for all survey areas are shown in
Tables C-1, C-2 and C-3 in Appendix C of Atlantic Shores Bight's IHA
application. The maximum seasonal density values used to estimate take
numbers are shown in Table 7 below. Below, we discuss how densities
were assumed to apply to specific species for which the Roberts et al.
(2016b, 2017, 2018, 2020) models provide results at the genus or guild
level.
For bottlenose dolphin densities, Roberts et al. (2016b, 2017,
2018) does not differentiate by individual stock. As the northern
migratory coastal stock is not expected to occur in the survey area,
densities and takes were only analyzed for the offshore stock.
Pilot whale density models from Duke University (Roberts et al.
2016a, 2016b, 2017) represent pilot whales as a `guild' rather than by
species. However, since the survey area is only expected to contain
long-finned pilot whales, it is assumed that pilot whale densities
modeled by Roberts et al. (2016a, 2016b, 2017) in the survey area only
reflect the presence of long-finned pilot whales.
Recently, the Duke University density data have been updated with
new modeling results, including updated NARW density data and density
estimates for pinnipeds (Roberts et al., 2016b, 2017, 2018, 2020).
Updated density estimates for the NARW are due to the inclusion of
three new datasets: 2011-2015 Northeast Large Pelagic Survey
Cooperative, 2017-2018 Marine Mammal Surveys of the Wind Energy Areas
conducted by the New England Aquarium, and 2017-2018 New York Bight
Whale Monitoring Program surveys conducted by the New York State
Department of Environmental conservation (NYSDEC). This new density
data shows distribution changes that are likely influenced by
oceanographic and prey covariates in the whale density model (Roberts
et al., 2021).
Pinniped density data (as presented in Roberts et al., 2016b, 2017,
2018) were used to estimate pinniped densities within the identified
survey area. Since pinniped density models (Roberts et al., 2016b,
2017, 2018) represent seals as a ``guild'' rather than by species, seal
densities were apportioned for gray and harbor seals as 50 percent for
each stock. These estimates were then applied to the average seasonal
density values which were analyzed using the Roberts et al. (2018)
data.
Seasonal marine mammal densities across survey areas are shown in
Table 7. Maximum densities used in exposure analysis are shown in Table
8.
Table 7--Marine Mammal Seasonal Densities Across Survey Sites
--------------------------------------------------------------------------------------------------------------------------------------------------------
Averaged seasonal densities (number of animals per 100 km\2\)
-------------------------------------------------------------------------------------------------------
Species Spring Summer Fall Winter
-------------------------------------------------------------------------------------------------------
Lease area ECR Lease area ECR Lease area ECR Lease area ECR
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale...................... 0.386 0.475 0.003 0.003 0.011 0.012 0.273 0.373
Humpback whale.................................. 0.068 0.045 0.021 0.023 0.055 0.058 0.021 0.040
Fin whale....................................... 0.230 0.193 0.295 0.216 0.237 0.170 0.167 0.120
Sei whale....................................... 0.012 0.013 0.002 0.001 0.002 0.002 0.002 0.001
Minke whale..................................... 0.168 0.112 0.062 0.037 0.045 0.027 0.057 0.039
Sperm whale..................................... 0.003 0.003 0.030 0.042 0.021 0.023 0.002 0.001
Long-finned pilot whale......................... 0.354 0.256 0.354 0.256 0.354 0.256 0.354 0.256
Bottlenose dolphin (offshore stock)............. 1.622 0.776 2.309 3.028 5.011 3.231 2.786 1.347
Common dolphin.................................. 7.017 3.326 6.138 3.753 7.235 6.611 19.246 13.251
Atlantic white-sided dolphin.................... 2.213 1.611 0.972 0.802 0.855 0.726 1.461 0.890
Atlantic spotted dolphin........................ 0.062 0.036 0.513 0.327 0.409 0.267 0.026 0.015
Risso's dolphin................................. 0.012 0.005 0.089 0.038 0.024 0.012 0.032 0.015
[[Page 50307]]
Harbor porpoise................................. 6.657 6.059 0.034 0.049 0.215 0.556 3.927 5.635
Harbor seal..................................... 3.544 5.799 0.052 0.077 0.055 0.109 3.262 5.479
Gray seal....................................... 3.544 5.799 0.052 0.077 0.055 0.109 3.262 5.479
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 8--Maximum Seasonal Densities of Marine Mammals Used in Exposure
Analysis
------------------------------------------------------------------------
Maximum seasonal density used
(number of animals per 100
km\2\)
Species -------------------------------
ECR survey
Lease area area
------------------------------------------------------------------------
North Atlantic right whale.............. 0.386 0.475
Humpback whale.......................... 0.068 0.058
Fin whale............................... 0.295 0.216
Sei whale............................... 0.012 0.013
Minke whale............................. 0.168 0.112
Sperm whale............................. 0.030 0.042
Long-finned pilot whale................. 0.354 0.256
Bottlenose dolphin...................... 5.011 3.231
Common dolphin.......................... 19.246 13.251
Atlantic white-sided dolphin............ 2.213 1.611
Atlantic spotted dolphin................ 0.062 0.036
Risso's dolphin......................... 0.089 0.038
Harbor porpoise......................... 6.657 6.059
Harbor seal............................. 3.544 5.799
Gray seal............................... 3.544 5.799
------------------------------------------------------------------------
Take Estimation
Here we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and authorized.
The number of marine mammals expected to be incidentally taken per
day is calculated by estimating the number of each species predicted to
occur within the daily ensonified area (animals/km\2\), incorporating
the maximum seasonal estimated marine mammal densities as described
above. Estimated numbers of each species taken per day across all
survey sites are then multiplied by the total number of survey days
(i.e., 360). 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 with the resulting authorized take
of marine mammals is shown below in Table 9:
Estimated Take = D x ZOI x # of days
Where:
D = average species density (per km\2\); and
ZOI = maximum daily ensonified area to relevant thresholds.
Table 9--Total Estimated and Authorized Take Numbers
[By level B harassment only]
----------------------------------------------------------------------------------------------------------------
Calculated take estimate Total adjusted
-------------------------------- Combined take authorized Percent of
Species ECR survey estimate take estimate population to
Lease area area * be taken
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale...... 11 13 24 24 6.5
Humpback whale *................ 2 2 4 8 0.6
Fin whale....................... 9 7 16 16 0.2
Sei whale [supcaret]............ 0.3 0.4 0.7 2 0.03
Minke whale..................... 5 3 8 8 0.04
Sperm whale..................... 0.9 2 2.9 3 0.07
Long-finned pilot whale *....... 10 8 18 20 0.07
Bottlenose dolphin (Offshore 141 91 232 232 0.4
stock).........................
Common dolphin.................. 539 372 911 911 0.2
Atlantic white-sided dolphin.... 62 46 108 108 0.5
Atlantic spotted dolphin *...... 2 1 3 100 0.3
Risso's dolphin *............... 3 2 5 30 0.1
Harbor porpoise................. 187 170 357 357 0.4
Harbor seal..................... 100 163 263 263 0.4
[[Page 50308]]
Gray seal....................... 100 163 263 263 1.0
----------------------------------------------------------------------------------------------------------------
* Requested take adjusted for group size.
[supcaret] Based upon previous IHAs.
NMFS has rounded decimal estimates to the nearest whole number in
the event that a decimal was calculated for take. Therefore, take
estimates for the sperm whale and sei whale were rounded up to three
whales and two whales, respectively (Table 9). Requested take estimates
were also adjusted to account for typical group sizes of humpback whale
(King et al., 2021), Risso's dolphin (NOAA 2022), Atlantic spotted
dolphin (Jefferson et al., 2008), and long-finned pilot whale (NOAA
2022). A total of 30 takes of Risso's dolphin, 100 takes of Atlantic
spotted dolphin, and 20 takes of long-finned pilot whales are
requested. Adding these additional takes ensures the number of takes
authorized is at least equal to the average group size.
Based on recent information from King et al. (2021) that
demonstrated that the humpback whale is commonly sighted along the New
York Bight area, NMFS determined that the humpback whale take request
may be too low given the occurrence of animals near the survey area.
Because of this, NMFS doubled the requested take to account for
underestimates to the actual occurrence of this species within the
density data.
Previously, 100 takes of Atlantic spotted dolphins, by Level B
harassment, were authorized to Atlantic Shores during their 2020 IHA
surveys (85 FR 7926; February 12, 2020). Early into the 2021 field
season, Atlantic Shores observed large numbers of Atlantic spotted
dolphins. A take of 100 Atlantic spotted dolphins was authorized for
the Atlantic Shores 2022 IHA (87 FR 4200, January 27, 2022) to account
for these numerous sightings. Based upon takes authorized for prior
IHAs, NMFS adjusted the take estimate, by Level B harassment, from 3 to
100 Atlantic spotted dolphins.
One sei whale take was calculated (Table 9), however, Atlantic
Shores Bight has requested to increase sei whale takes to two whales.
This increase is based on the average group size of sei whales (NOAA
2022). Therefore, NMFS adjusted the take estimate, by Level B
harassment, from 1 sei whale to 2 sei whales.
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, NMFS
considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
NMFS requires that the following mitigation measures be implemented
during Atlantic Shores Bight's planned marine site characterization
surveys. Pursuant to section 7 of the ESA, Atlantic Shores Bight is
also required to adhere to relevant Project Design Criteria (PDC) of
the NMFS' Greater Atlantic Regional Fisheries Office (GARFO)
programmatic consultation (specifically PDCs 4, 5, and 7) regarding
geophysical surveys along the U.S. Atlantic coast (<a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>).
Marine Mammal Shutdown Zones
Marine mammal shutdown zones will be established around specified
HRG survey equipment and monitored by PSOs. These PSOs will be NMFS-
approved visual PSOs. Based upon the acoustic source in use (impulsive:
Sparkers; non-impulsive: Non-parametric sub-bottom profilers), a
minimum of one PSO must be on duty, per source vessel, during daylight
hours and two PSOs must be on duty, per source vessel, during nighttime
hours. These PSO will monitor shutdown zones based upon the radial
distance from the acoustic source rather than being based around the
vessel itself. The shutdown zone distances are as follows:
<bullet> A 500-m shutdown zone for NARW during use of specified
acoustic sources (impulsive: Sparkers; non-impulsive: Non-parametric
sub-bottom profilers).
<bullet> A 100-m shutdown zone for all other marine mammals
(excluding NARWs and delphinids from the genera Delphinus,
Lagenorhynchus, Stenella, or Tursiops that are visually detected as
voluntarily approaching the vessel or towed equipment) during use of
specified acoustic sources (as specified below). All visual monitoring
must begin no less than 30 minutes prior to the initiation of the
specified acoustic source and must continue until 30 minutes after use
of specified acoustic sources ceases.
If a marine mammal is detected approaching or entering the shutdown
zones during the HRG survey, the vessel
[[Page 50309]]
operator will adhere to the shutdown procedures described below to
minimize noise impacts on the animals. If a shutdown is required, a PSO
will notify the survey crew immediately. Vessel operators and crews
will comply immediately with any call for shutdown. Shutdown will
remain in effect until the minimum separation distances (detailed
above) between the animal and noise source are re-established. These
stated requirements will be included in the site-specific training to
be provided to the survey team.
Ramp Up of Survey Equipment and Pre-Clearance of the Shutdown Zones
When technically feasible, a ramp-up procedure will be required for
HRG survey equipment capable of adjusting energy levels at the start or
restart of survey activities. A ramp-up will begin with the powering up
of the smallest acoustic HRG equipment at its lowest practical power
output appropriate for the survey. The ramp-up procedure will be used
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. When
technically feasible, the power will then be gradually turned up and
other acoustic sources will be added. All ramp-ups shall be scheduled
so as to minimize the time spent with the source being activated.
Ramp-up activities will be delayed if a marine mammal(s) enters its
respective shutdown zone. Ramp-up will continue if the animal has been
observed exiting its respective shutdown 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).
Atlantic Shores Bight is required to implement a 30 minute pre-
clearance period of the shutdown zones prior to the initiation of ramp-
up of HRG equipment. The operator must notify a designated PSO of the
planned start of ramp-up where the notification time should not be less
than 60 minutes prior to the planned ramp-up. This will allow the PSOs
to monitor the shutdown zones for 30 minutes prior to the initiation of
ramp-up. Prior to ramp-up beginning, Atlantic Shores Bight must receive
confirmation from the PSO that the shutdown zone is clear prior to
proceeding. During this 30 minute pre-start clearance period, the
entire applicable shutdown zones must be visible. The exception to this
will be in situations where ramp-up may occur during periods of poor
visibility (inclusive of nighttime) as long as appropriate visual
monitoring has occurred with no detections of marine mammals in 30
minutes prior to the beginning of ramp-up. Acoustic source activation
may only occur at night where operational planning cannot reasonably
avoid such circumstances.
During this period, the shutdown zone will be monitored by the
PSOs, using the appropriate visual technology. Ramp-up may not be
initiated if any marine mammal(s) is within its respective shutdown
zone. If a marine mammal is observed within a shutdown zone during the
pre-clearance period, ramp-up may not begin until the animal(s) has
been observed exiting its respective shutdown zone or until an
additional time period has elapsed with no further sighting (i.e., 15
minutes for small odontocetes and pinnipeds and 30 minutes for all
other species). If a marine mammal enters the shutdown zone during
ramp-up, ramp-up activities must cease and the source must be shut
down. Any PSO on duty has the authority to delay the start of survey
operations if a marine mammal is detected within the applicable pre-
start clearance zones.
The required pre-clearance zones will be:
<bullet> 500-m for all ESA-listed species (North Atlantic right,
sei, fin, sperm whales); and
<bullet> 100-m for all other marine mammals.
If any marine mammal species that are listed under the ESA are
observed within the clearance zones, the presence of the animal will be
recorded and the 30 minute clock must be paused. If the PSO confirms
the animal has exited the zone and headed away from the survey vessel,
the 30 minute clock that was paused may resume. The pre-clearance clock
will reset to 30 minutes if the animal dives or visual contact is
otherwise lost.
If the acoustic source is shut down for brief periods (i.e., less
than 30 minutes) for reasons other than implementation of prescribed
mitigation (e.g., mechanical difficulty), the acoustic source may be
reactivated without ramp-up if PSOs have maintained constant visual
observation and no detection of marine mammals occurs within the
applicable shutdown zone. For any longer shutdown, pre-start clearance
observation and ramp-up are required.
Activation of survey equipment through ramp-up procedures may not
occur when visual detection of marine mammals within the pre-clearance
zone is not expected to be effective (e.g., during inclement conditions
such as heavy rain or fog).
The acoustic source(s) must be deactivated when not acquiring data
or preparing to acquire data, except as necessary for testing.
Unnecessary use of the acoustic source shall be avoided.
Shutdown Procedures
An immediate shutdown of the impulsive HRG survey equipment (Table
1) is required if a marine mammal is sighted entering or within its
respective shutdown zone(s). Any PSO on duty has the authority to call
for a shutdown of the acoustic source if a marine mammal is detected
within the applicable shutdown zones. Any disagreement between the PSO
and vessel operator should be discussed only after shutdown has
occurred. The vessel operator will establish and maintain clear lines
of communication directly between PSOs on duty and crew controlling the
HRG source(s) to ensure that shutdown commands are conveyed swiftly
while allowing PSOs to maintain watch.
The shutdown requirement is waived for small delphinids (belonging
to the genera of the Family Delphinidae: Delphinus, Lagenorhynchus,
Stenella, or Tursiops) and pinnipeds if they are visually detected
within the applicable shutdown zones. 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 applicable Level B
harassment zone, shutdown is required to occur. In the event of
uncertainty regarding the identification of a marine mammal species
(i.e., such as whether the observed marine mammal belongs to Delphinus,
Lagenorhynchus, Stenella, or Tursiops for which shutdown is waived,
PSOs must use their best professional judgment in making the decision
to call for a shutdown.
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.
Upon implementation of a shutdown, the source may be reactivated
after the marine mammal has been observed exiting the applicable
shutdown zone or following a clearance period of 15 minutes for harbor
porpoises and 30 minutes for all other species where there are no
further detections of the marine mammal.
Shutdown, pre-start clearance, and ramp-up procedures are not
required during HRG survey operations using only non-impulsive sources
(e.g.,
[[Page 50310]]
parametric sub-bottom profilers) other than non-parametric sub-bottom
profilers (e.g., CHIRPs). Pre-clearance and ramp-up, but not shutdown,
are required when using non-impulsive, non-parametric sub-bottom
profilers.
Seasonal Operating Requirements
A section of the survey area overlaps with approximately 2% of a
NARW SMA. This SMA is active from November 1 through April 30 of each
year. All survey vessels, regardless of length, are required to adhere
to vessel speed restrictions (<10 kn; 18.5 km/hr) when operating within
the SMA during times when the SMA is active. In addition, between watch
shifts, members of the monitoring team will consult NMFS' NARW
reporting systems for the presence of NARW throughout survey
operations. Members of the monitoring team will also monitor the NMFS
NARW reporting systems for the establishment of DMA. NMFS may also
establish voluntary right whale Slow Zones any time a right whale (or
whales) is acoustically detected. Atlantic Shores Bight should be aware
of this possibility and remain attentive in the event a Slow Zone is
established nearby or overlapping the survey area (Table 10).
Table 10--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
Restrictions Within Survey Area
----------------------------------------------------------------------------------------------------------------
Survey area Species DMA restrictions Slow zones SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area...................... North Atlantic If established by NMFS, all of N/A.
Right Whale Atlantic Shores Bight's vessels will
(Eubalaena abide by the described restrictions
glacialis).
ECR Survey Area................. November 1-April
30 (ports of New
York/New Jersey).
----------------------------------------------------------------------------------------------------------------
There are no known marine mammal rookeries or mating or calving
grounds in the survey area that would otherwise potentially warrant
increased mitigation measures for marine mammals or their habitat (or
both). The authorized survey activities will occur in an area that has
been identified as a BIA for migration for NARW. However, given the
small spatial extent of the survey area relative to the substantially
larger spatial extent of the right whale migratory area and the
relatively low amount of noise generated by the survey activities, the
survey activities are not expected to appreciably reduce the quality of
migratory habitat nor to negatively impact the migration of NARW.
Vessel Strike Avoidance Procedures
Vessel operators must comply with the below measures except under
extraordinary circumstances when the safety of the vessel or crew is in
doubt or the safety of life at sea is in question. These requirements
do not apply in any case where compliance would create an imminent and
serious threat to a person or vessel or to the extent that a vessel is
restricted in its ability to maneuver and, because of the restriction,
cannot comply.
<bullet> A Vessel Strike Avoidance Zone(s) will be maintained, as
defined as 1,640 ft (500 m) or greater from any sighted ESA-listed
whale species or other unidentified large marine mammal;
(a) If a large whale is identified within 1,640 ft (500 m) of the
forward path of any vessel, the vessel operator must steer a course
away from the whale at 10 kn (18.5 km/hr) or less until the 1,640 ft
(500 m) minimum separation distance has been established. Vessels may
also shift to idle if feasible.
(b) If a large whale is sighted within 656 ft (200 m) of the
forward path of a vessel, the vessel operator must reduce speed and
shift the engine to neutral. Engines must not be engaged until the
whale has moved outside of the vessel's path and beyond 1,640 ft (500
m). If stationary, the vessel must not engage engines until the large
whale has moved beyond 1,640 ft (500 m).
<bullet> All vessel operators and crew will maintain vigilant watch
for all marine mammals, and slow down, stop their vessel, or alter
course, as appropriate and regardless of vessel size, to avoid striking
any marine mammals. Unless a required PSO is aboard and on duty, then a
designated and trained vessel crew member on all vessels associated
with survey activities (transiting [i.e., traveling between a port and
survey site] or actively surveying) will be assigned as a lookout for
marine mammals;
<bullet> Members of the monitoring team will consult NMFS NARW
reporting system and Whale Alert, daily and as able, for the presence
of NARW 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. All
survey vessels, regardless of size, will observe a 10 kn (less than
18.5 km per hour [km/h]) speed restriction in the specific areas
designated by NOAA Fisheries for the protection of NARWs from vessel
strikes including SMAs, Right Whale Slow Zones, and DMAs, when in
effect. See <a href="http://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales">www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales</a> for
specific detail regarding these areas.
<bullet> All vessels greater than or equal to 65 ft (19.8 m) in
overall length operating from November 1 through April 30 will operate
at speeds of 10 knots or less while transiting to and from the survey
area.
<bullet> All vessels, regardless of size, will reduce vessel speed
to 10 knots or less when mother/calf pairs, pods, or large assemblages
of cetaceans are observed near (within 330 ft [100 m]) of an underway
vessel.
<bullet> All vessels will, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 164 ft (50 m) from
all other marine mammals than ESA-listed and large whales, with an
understanding that at times this may not be possible (e.g., for animals
that approach the vessel).
<bullet> When marine mammals are sighted while a vessel is
underway, the vessel will 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). Engines will not be
engaged until the animals are clear of the area. This will not apply to
any vessel towing gear or any vessel that is navigationally
constrained.
Training
All PSOs must have completed a PSO training program and received
NMFS approval to act as a PSO for geophysical surveys. Documentation of
NMFS approval and most recent training certificates of individual PSOs'
[[Page 50311]]
successful completion of a commercial PSO training course must be
provided upon request. Further information can be found at
<a href="http://www.fisheries.noaa.gov/national/endangered-species-conservation/protected-species-observers">www.fisheries.noaa.gov/national/endangered-species-conservation/protected-species-observers</a>. In the event where third-party PSOs are
not required, crew members serving as lookouts must receive training on
protected species identification, vessel strike minimization
procedures, how and when to communicate with the vessel captain, and
reporting requirements.
Atlantic Shores Bight shall instruct relevant vessel personnel with
regard to the authority of the marine mammal monitoring team, and shall
ensure that relevant vessel personnel and the marine mammal monitoring
team participate in a joint onboard briefing (hereafter PSO briefing),
led by the vessel operator and lead PSO, prior to beginning survey
activities to ensure that responsibilities, communication procedures,
marine mammal monitoring protocols, safety and operational procedures,
and IHA requirements are clearly understood. This PSO briefing must be
repeated when relevant new personnel (e.g., PSOs, acoustic source
operator) join the survey operations before their responsibilities and
work commences.
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. All vessel crew members must be
briefed in the identification of protected species that may occur in
the survey area and in regulations and best practices for avoiding
vessel collisions. Reference materials must be available aboard all
project vessels for identification of listed species. The expectation
and process for reporting of protected species sighted during surveys
must be clearly communicated and posted in highly visible locations
aboard all project vessels, so that there is an expectation for
reporting to the designated vessel contact (such as the lookout or the
vessel captain), as well as a communication channel and process for
crew members to do so. 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 mitigation measures,
NMFS has determined that these measures provide the means of effecting
the least practicable impact on the affected 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 while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the action; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and,
<bullet> Mitigation and monitoring effectiveness.
Monitoring Measures
Atlantic Shores Bight must use independent, dedicated, trained
PSOs, meaning that the PSOs must be employed by a third-party observer
provider, must 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 mammal and mitigation
requirements (including brief alerts regarding maritime hazards), and
must have successfully completed an approved PSO training course for
geophysical surveys. Visual monitoring must be performed by qualified,
NMFS-approved PSOs. PSO resumes must be provided to NMFS for review and
approval prior to the start of survey activities.
PSO names must be provided to NMFS by the operator for review and
confirmation of their approval for specific roles prior to commencement
of the survey. For prospective PSOs not previously approved, or for
PSOs whose approval is not current, NMFS must review and approve PSO
qualifications. Resumes should include information related to relevant
education, experience, and training, including dates, duration,
location, and description of prior PSO experience. Resumes must be
accompanied by relevant documentation of successful completion of
necessary training.
NMFS may approve PSOs as conditional or unconditional. A
conditionally-approved PSO may be one who is trained but has not yet
attained the requisite experience. An unconditionally-approved PSO is
one who has attained the necessary experience. For unconditional
approval, the PSO must have a minimum of 90 days at sea performing the
role during a geophysical survey, with the conclusion of the most
recent relevant experience not more than 18 months previous.
At least one of the visual PSOs aboard the vessel must be
unconditionally-approved. One unconditionally-approved visual PSO shall
be designated as the lead for the entire PSO team. This lead should
typically be the PSO with the most experience, would coordinate duty
schedules and roles for the PSO team, and serve as primary point of
contact for the vessel operator. To the maximum extent practicable, the
duty schedule shall be planned such that unconditionally-approved PSOs
are
[[Page 50312]]
on duty with conditionally-approved PSOs.
PSOs must have successfully attained a bachelor's degree from an
accredited college or university with a major in one of the natural
sciences, a minimum of 30 semester hours or equivalent in the
biological sciences, and at least one undergraduate course in math or
statistics. The educational requirements may be waived if the PSO has
acquired the relevant skills through alternate experience. Requests for
such a waiver shall be submitted to NMFS and must include written
justification. Alternate experience that may be considered includes,
but is not limited to (1) secondary education and/or experience
comparable to PSO duties; (2) previous work experience conducting
academic, commercial, or government-sponsored marine mammal surveys;
and (3) previous work experience as a PSO (PSO must be in good standing
and demonstrate good performance of PSO duties).
PSOs must successfully complete relevant training, including
completion of all required coursework and passing (80 percent or
greater) a written and/or oral examination developed for the training
program.
PSOs must coordinate to ensure 360[deg] visual coverage around the
vessel from the most appropriate observation posts and shall conduct
visual observations using binoculars or night-vision equipment 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 four consecutive hours
followed by a break of at least two hours between watches and may
conduct a maximum of 12 hours of observation per 24-hour period.
Any observations of marine mammal by crew members aboard any vessel
associated with the survey shall be relayed to the PSO team.
Atlantic Shores Bight must work with the selected third-party PSO
provider to ensure PSOs have all equipment (including backup equipment)
needed to adequately perform necessary tasks, including accurate
determination of distance and bearing to observed marine mammals, and
to ensure that PSOs are capable of calibrating equipment as necessary
for accurate distance estimates and species identification. Such
equipment, at a minimum, shall include:
<bullet> At least one thermal (infrared) imagine device suited for
the marine environment;
<bullet> Reticle binoculars (e.g., 7 x 50) of appropriate quality
(at least one per PSO, plus backups);
<bullet> Global Positioning Units (GPS) (at least one plus
backups);
<bullet> Digital cameras with a telephoto lens that is at least
300-mm or equivalent on a full-frame single lens reflex (SLR) (at least
one plus backups). The camera or lens should also have an image
stabilization system;
<bullet> Equipment necessary for accurate measurement of distances
to marine mammal;
<bullet> Compasses (at least one plus backups);
<bullet> Means of communication among vessel crew and PSOs; and
<bullet> Any other tools deemed necessary to adequately and
effectively perform PSO tasks.
The equipment specified above may be provided by an individual PSO,
the third-part PSO provider, or the operator, but Atlantic Shores Bight
is responsible for ensuring PSOs have the proper equipment required to
perform the duties specified in the IHA.
During good conditions (e.g., daylight hours; Beaufort sea state 3
or less), PSOs shall conduct observations when the specified acoustic
sources are not operating for comparison of sighting rates and behavior
with and without use of the specified acoustic sources and between
acquisition periods, to the maximum extent practicable.
The PSOs will be responsible for monitoring the waters surrounding
each survey vessel to the farthest extent permitted by sighting
conditions, including shutdown zones, during all HRG survey operations.
PSOs will visually monitor and identify shutdown zones during survey
activities. It will be the responsibility of the PSO(s) 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.
In cases when pre-clearance has begun in conditions with good
visibility, including via the use of night-vision equipment, and the
lead PSO has determined that the pre-start clearance zones are clear of
marine mammals, survey operations may commence (i.e., no delay is
required) despite brief periods of inclement weather and/or loss of
daylight.
Atlantic Shores Bight plans to utilize six PSOs across each vessel
to account for shift changes, with a total of 18 during this project
(six PSOs per vessel x three vessels). At a minimum, during all HRG
survey operations (e.g., any day on which use of an HRG source is
planned to occur), 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) and 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 four 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
would be communicated to PSOs on all nearby survey vessels.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
proximity to Exclusion Zones. Reticulated binoculars must also be
available to PSOs for use as appropriate based on conditions and
visibility to support the sighting and monitoring of marine mammals.
During nighttime operations, night-vision goggles with thermal clip-ons
and infrared technology 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 (see Reporting Measures). 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
Atlantic Shores Bight shall submit a draft comprehensive report on
all activities and monitoring results within 90 days of the completion
of the survey or expiration of the IHA, whichever comes sooner. The
report must describe
[[Page 50313]]
all activities conducted and sightings of marine mammals, must provide
full documentation of methods, results, and interpretation pertaining
to all monitoring, and must summarize the dates and locations of survey
operations and all marine mammals sightings (dates, times, locations,
activities, associated survey activities). The draft report shall also
include geo-referenced, time-stamped vessel tracklines for all time
periods during which acoustic sources were operating. Tracklines should
include points recording any change in acoustic source status (e.g.,
when the sources began operating, when they were turned off, or when
they changed operational status such as from full array to single gun
or vice versa). GIS files shall be provided in ESRI shapefile format
and include the UTC date and time, latitude in decimal degrees, and
longitude in decimal degrees. All coordinates shall be referenced to
the WGS84 geographic coordinate system. In addition to the report, all
raw observational data shall be made available. The report must
summarize the information submitted in interim monthly reports (if
required) as well as additional data collected. A final report must be
submitted within 30 days following resolution of any comments on the
draft report. All draft and final marine mammal reports must be
submitted to <a href="/cdn-cgi/l/email-protection#dc8c8ef295888cf291b3b2b5a8b3aeb5b2bb8eb9acb3aea8af9cb2b3bdbdf2bbb3aa"><span class="__cf_email__" data-cfemail="277775096e7377096a48494e5348554e494075425748555354674948464609404851">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#2f667b7f017b4e5643405d6f41404e4e01484059"><span class="__cf_email__" data-cfemail="87ced3d7a9d3e6feebe8f5c7e9e8e6e6a9e0e8f1">[email protected]</span></a>,
and <a href="/cdn-cgi/l/email-protection#600e0d06134e0701124e090e030904050e14010c4d14010b05200e0f01014e070f16"><span class="__cf_email__" data-cfemail="9af4f7fce9b4fdfbe8b4f3f4f9f3fefff4eefbf6b7eefbf1ffdaf4f5fbfbb4fdf5ec">[email protected]</span></a>.
PSOs must use standardized electronic data forms to record data.
PSOs shall record detailed information about any implementation of
mitigation requirements, including the distance of marine mammal to the
acoustic source and description of specific actions that ensued, the
behavior of the animal(s), any observed changes in behavior before and
after implementation of mitigation, and if shutdown was implemented,
the length of time before any subsequent ramp-up of the acoustic
source. If required mitigation was not implemented, PSOs should record
a description of the circumstances.
At a minimum, the following information must be recorded:
1. Vessel names (source vessel and other vessels associated with
survey), vessel size and type, maximum speed capability of vessel;
2. Dates of departures and returns to port with port name;
3. The lease number;
4. PSO names and affiliations;
5. Date and participants of PSO briefings;
6. Visual monitoring equipment used;
7. PSO location on vessel and height of observation location above
water surface;
8. Dates and times (Greenwich Mean Time) of survey on/off effort
and times corresponding with PSO on/off effort;
9. Vessel location (decimal degrees) when survey effort begins and
ends and vessel location at beginning and end of visual PSO duty
shifts;
10. Vessel location at 30-second intervals if obtainable from data
collection software, otherwise at practical regular interval
11. Vessel heading and speed at beginning and end of visual PSO
duty shifts and upon any change;
12. Water depth (if obtainable from data collection software);
13. Environmental conditions while on visual survey (at beginning
and end of PSO shift and whenever conditions change significantly),
including BSS and any other relevant weather conditions including cloud
cover, fog, sun glare, and overall visibility to the horizon;
14. Factors that may contribute to impaired observations during
each PSO shift change or as needed as environmental conditions change
(e.g., vessel traffic, equipment malfunctions); and
15. Survey activity information (and changes thereof), such as
acoustic source power output while in operation, number and volume of
airguns operating in an array, tow depth of an acoustic source, and any
other notes of significance (i.e., pre-start clearance, ramp-up,
shutdown, testing, shooting, ramp-up completion, end of operations,
streamers, etc.).
Upon visual observation of any marine mammal, the following
information must be recorded:
1. Watch status (sighting made by PSO on/off effort, opportunistic,
crew, alternate vessel/platform);
2. Vessel/survey activity at time of sighting (e.g., deploying,
recovering, testing, shooting, data acquisition, other);
3. PSO who sighted the animal;
4. Time of sighting;
5. Initial detection method;
6. Sightings cue;
7. Vessel location at time of sighting (decimal degrees);
8. Direction of vessel's travel (compass direction);
9. Speed of the vessel(s) from which the observation was made;
10. 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;
11. Species reliability (an indicator of confidence in
identification);
12. Estimated distance to the animal and method of estimating
distance;
13. Estimated number of animals (high/low/best);
14. Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
15. 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);
16. Detailed behavior observations (e.g., number of blows/breaths,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; length of time observed in the
harassment zone; note any observed changes in behavior before and after
point of closest approach);
17. Mitigation actions; description of any actions implemented in
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or
course alteration, etc.) and time and location of the action;
18. Equipment operating during sighting;
19. Animal's closest point of approach and/or closest distance from
the center point of the acoustic source; and
20. Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up) and time and location of the
action.
If a NARW is observed at any time by PSOs or personnel on any
project vessels, during surveys or during vessel transit, Atlantic
Shores Bight must report the sighting information to the NMFS NARW
Sighting Advisory System (866-755-6622) within two hours of occurrence,
when practicable, or no later than 24 hours after occurrence. NARW
sightings in any location may also be reported to the U.S. Coast Guard
via channel 16 and through the WhaleAlert app (<a href="http://www.whalealert.org">http://www.whalealert.org</a>).
In the event that Atlantic Shores Bight personnel discover an
injured or dead marine mammal, regardless of the cause of injury or
death, Atlantic Shores Bight must report the incident to NMFS as soon
as feasible by phone (866-755-6622) and by email
(<a href="/cdn-cgi/l/email-protection#dbb5b6bda8f5bcbaa9f5a8afa9bab5bfb2b5bc9bb5b4babaf5bcb4ad"><span class="__cf_email__" data-cfemail="7c12111a0f521b1d0e520f080e1d121815121b3c12131d1d521b130a">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#ca9a98e4839e9ae487a5a4a3bea5b8a3a4ad98afbaa5b8beb98aa4a5ababe4ada5bc"><span class="__cf_email__" data-cfemail="6a3a3844233e3a44270504031e051803040d380f1a05181e192a04050b0b440d051c">[email protected]</span></a>) as
soon as feasible. The report must 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);
[[Page 50314]]
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 ship strike of a marine mammal by
any vessel involved in the activities covered by the IHA, Atlantic
Shores Bight must report the incident to NMFS by phone (866-755-6622)
and by email (<a href="/cdn-cgi/l/email-protection#8de3e0ebfea3eaecffa3fef9ffece3e9e4e3eacde3e2ececa3eae2fb"><span class="__cf_email__" data-cfemail="83edeee5f0ade4e2f1adf0f7f1e2ede7eaede4c3edece2e2ade4ecf5">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#de8e8cf0978a8ef093b1b0b7aab1acb7b0b98cbbaeb1acaaad9eb0b1bfbff0b9b1a8"><span class="__cf_email__" data-cfemail="2575770b6c71750b684a4b4c514a574c4b427740554a575156654b4a44440b424a53">[email protected]</span></a>) as soon as feasible. The report will
include the following information:
1. Time, date, and location (latitude/longitude) of the incident;
2. Species identification (if known) or description of the
animal(s) involved;
3. Vessel's speed during and leading up to the incident;
4. Vessel's course/heading and what operations were being conducted
(if applicable);
5. Status of all sound sources in use;
6. 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;
7. Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
8. Estimated size and length of animal that was struck;
9. Description of the behavior of the marine mammal immediately
preceding and/or following the strike;
10. If available, description of the presence and behavior of any
other marine mammals immediately preceding the strike;
11. 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
12. To the extent practicable, photographs or video footage of the
animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338;
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, or ambient noise levels).
To avoid repetition, the discussion of our analysis applies to all
the species listed in Table 2, given that the anticipated effects of
this activity on these different marine mammal stocks are expected to
be similar. Where there are meaningful differences between species or
stocks--as is the case of the NARW--they are included as separate
subsections below. NMFS does not anticipate that serious injury or
mortality will occur as a result from HRG surveys, even in the absence
of mitigation, and no serious injury or mortality is authorized. As
discussed in the Potential Effects 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 will not result in any adverse impact to
the stock as a whole. As described above, Level A harassment is not
expected to occur given the nature of the operations, the estimated
size of the Level A harassment zones, and the required shutdown zones
for certain activities.
In addition to HRG activities 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 authorized take
numbers, in reality, the Applied Acoustics Dura-Spark 240 would likely
not be used across the entire 24-hour period and across all 360 days.
As noted in Table 5, the other acoustic sources Atlantic Shores Bight
has included in their application produce Level B harassment zones
below 60-m. Therefore, the ensonified area surrounding each vessel is
relatively small compared to the overall distribution of the animals in
the area and their 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. Due to 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 known mating or calving grounds nor feeding areas
known to be biologically important to marine mammals within the survey
area. There is no designated critical habitat for any ESA-listed marine
mammals in the survey area.
North Atlantic Right Whales
The status of the NARW population is of heightened concern and,
therefore, merits additional analysis. As noted previously, elevated
NARW mortalities began in June 2017 and there is an active Unusual
Mortality Event (UME). Overall, preliminary findings support human
interactions, specifically vessel strikes and entanglements, as the
cause of death for the majority of right whales. As noted previously,
the survey area overlaps a migratory corridor BIA for NARW. Due to the
fact that the survey activities are temporary and the spatial extent of
sound produced by the survey would be very small relative to the
spatial extent of the available migratory habitat in the BIA, right
whale migration is not expected to be impacted by the survey
activities. Required vessel strike avoidance measures will also
decrease risk of ship strike during migration; no ship strike is
expected to occur during Atlantic Shores Bight's activities. The 500-m
shutdown zone for right whales is conservative, considering the Level B
harassment isopleth for the most
[[Page 50315]]
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 authorized for use.
The authorizations for Level B harassment takes of NARW are not
expected to exacerbate or compound upon the ongoing UME. The limited
NARW Level B harassment takes authorized 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 Atlantic Shores Bight's
activities, it is unlikely that NARW prey availability will be
adversely affected. Accordingly, NMFS does not anticipate that any NARW
takes resulting from Atlantic Shores Bight's activities will impact
annual rates of recruitment or survival. Thus, any takes that occur
will not result in population level impacts.
Other Marine Mammal Species With Active UMEs
As noted previously, there are several active UMEs occurring in the
vicinity of Atlantic Shores Bight's survey area. Elevated humpback
whale mortalities have occurred along the Atlantic coast from Maine
through Florida since January 2016. Of the cases examined,
approximately half had evidence of human interaction (ship strike or
entanglement). The UME does not yet provide cause for concern regarding
population-level impacts. Despite the UME, the relevant population of
humpback whales (the West Indies breeding population, or DPS) remains
stable at approximately 12,000 individuals.
Beginning in January 2017, elevated minke whale strandings have
occurred along the Atlantic coast from Maine through South Carolina,
with highest numbers in Massachusetts, Maine, and New York. This event
does not provide cause for concern regarding population level impacts,
as the likely population abundance is greater than 20,000 whales.
The required mitigation measures are expected to reduce the number
and/or severity of authorized takes for all species listed in Table 2,
including those with active UMEs, to the level of least practicable
adverse impact. In particular, they will 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.
Implementation of required mitigation will further reduce this
potential. Therefore, NMFS has not authorized any Level A harassment.
NMFS expects that takes will be in the form of short-term Level B
behavioral harassment by way of brief startling reactions, temporarily
vacating the area, or decreased foraging (if such activity was
occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals would only be exposed briefly to a small ensonified area that
might result in take. Additionally, required mitigation measures will
further reduce exposure to sound that could result in more severe
behavioral harassment.
Biologically Important Areas for Other Species
As previously discussed, impacts from the authorized project are
expected to be localized to the specific area of activity and only
during periods of time where Atlantic Shores Bight's acoustic sources
are active. While BIAs for feeding for fin and humpback whales as well
as haul out sites for harbor seals can be found off the coast of New
Jersey and New York, NMFS does not expect this action to affect these
areas. This is due to the combination of the mitigation and monitoring
measures being required of Atlantic Shores Bight as well as the
location of these biologically important areas. All of these important
areas are found outside of the range of this survey area, as is the
case with fin whales and humpback whales (BIAs found further north),
and, therefore, not expected to be impacted by Atlantic Shores Bight's
survey activities.
Three major haul-out sites exist for harbor seals, inshore of the
ECR Survey Area along New Jersey, at Great Bay, Sand Hook, and Barnegat
Inlet (CWFNJ, 2015). As hauled outs are inshore and seals would be out
of the water, no in-water effects are expected.
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 any of the species or stocks
through effects on annual rates of recruitment or survival:
<bullet> No serious injury or mortality is anticipated or
authorized;
<bullet> No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures;
<bullet> Foraging success is not likely to be impacted as effects
on prey species for marine mammals from the activities are expected to
be minimal;
<bullet> Alternate areas of similar habitat value are available for
marine mammals to temporarily vacate the survey area during the planned
activities to avoid exposure to sounds generated by surveys;
<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 a noted migratory BIA for
NARW, 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; and
<bullet> The 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 activities on marine mammals and their habitat, and taking
into consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the
activity will have a negligible impact on all affected marine mammal
species or stocks.
Small Numbers
As noted above, only small numbers of incidental take may be
authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
NMFS has authorized the incidental take (by Level B harassment
only) of 15 marine mammal species (with 15 managed stocks). The total
amount of takes authorized relative to the best
[[Page 50316]]
available population abundance is less than 7 percent for all stocks
(Table 9). Therefore, NMFS finds that small numbers of marine mammals
may be taken relative to the estimated overall population abundances
for those stocks.
Based on the analysis contained herein of the activity (including
the mitigation and monitoring measures) and the anticipated take of
marine mammals, NMFS finds that small numbers of marine mammals will be
taken relative to the population size of the affected species or
stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks will 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
incidental take authorization) and alternatives with respect to
potential impacts on the human environment. This action is consistent
with categories of activities identified in Categorical Exclusion B4
(IHAs with no anticipated serious injury or mortality) of the Companion
Manual for NOAA Administrative Order 216-6A, which do not individually
or cumulatively have the potential for significant impacts on the
quality of the human environment and for which we have not identified
any extraordinary circumstances that would preclude this categorical
exclusion. Accordingly, NMFS has determined that the issuance of the
IHA qualifies to be categorically excluded from further NEPA review.
Endangered Species Act
Section 7(a)(2) of the ESA: 16 U.S.C. 1531 et seq.) requires that
each Federal agency insure that any action it authorizes, funds, or
carries out is not likely to jeopardize the continued existence of any
endangered or threatened species or result in the destruction or
adverse modification of designated critical habitat. To ensure ESA
compliance for the issuance of IHAs, NMFS consults internally whenever
we propose to authorize take for endangered or threatened species, in
this case with the Greater Atlantic Regional Fisheries Office.
NMFS OPR is authorizing the incidental take of four species of
marine mammals which are listed under the ESA, including the North
Atlantic right, fin, sei, and sperm whale, and determined that this
activity falls within the scope of activities analyzed in NMFS GARFO's
programmatic consultation regarding geophysical surveys along the U.S.
Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021). 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
Atlantic Shores Bight authorized take, by Level B harassment,
incidental to conducting site characterization surveys off New Jersey
and New York from August 1, 2022 through July 31, 2023, that includes
the previously explained mitigation, monitoring, and reporting
requirements.
Dated: August 10, 2022.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2022-17522 Filed 8-15-22; 8:45 am]
BILLING CODE 3510-22-P
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