Notice2022-18602
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Site Characterization Surveys Offshore From Massachusetts to New Jersey for Vineyard Northeast, LLC
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 30, 2022
Effective
July 27, 2022
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS is issuing an IHA to Vineyard Northeast, LLC (Vineyard Northeast) to incidentally harass, by Level B harassment, marine mammals incidental to marine site characterization surveys offshore from Massachusetts to New Jersey, including the area of Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf Lease Areas OCS-A 0522 and OCS-A 0544 (Lease Areas) and along potential offshore export cable corridor (OECC) routes to landfall locations.
Full Text
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<title>Federal Register, Volume 87 Issue 167 (Tuesday, August 30, 2022)</title>
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[Federal Register Volume 87, Number 167 (Tuesday, August 30, 2022)]
[Notices]
[Pages 52913-52933]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-18602]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC164]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Site Characterization Surveys
Offshore From Massachusetts to New Jersey for Vineyard Northeast, LLC
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 is issuing an IHA to Vineyard Northeast, LLC (Vineyard
Northeast) to incidentally harass, by Level B harassment, marine
mammals incidental to marine site characterization surveys offshore
from Massachusetts to New Jersey, including the area of Commercial
Lease of Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf Lease Areas OCS-A 0522 and OCS-A 0544 (Lease Areas)
and along potential offshore export cable corridor (OECC) routes to
landfall locations.
DATES: This authorization is effective from July 27, 2022 through July
26, 2023.
FOR FURTHER INFORMATION CONTACT: Carter Esch, Office of Protected
Resources, NMFS, (301) 427-8401.
[[Page 52914]]
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="http://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems
accessing these documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to 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 December 17, 2021, NMFS received a request from Vineyard
Northeast for an IHA to take marine mammals incidental to marine site
characterization surveys offshore from Massachusetts to New Jersey, in
the area of Commercial Lease of Submerged Lands for Renewable Energy
Development on the Outer Continental Shelf Lease Areas OCS-A 0522 and
OCS-A 0544 (Lease Areas) and potential offshore export cable corridor
(OECC) routes to landfall locations. We received a final, revised
version of Vineyard Northeast's application on April 4, 2022, which we
deemed adequate and complete on April 18, 2022. Vineyard Northeast's
request is for take of 19 species (with 20 managed stocks) of marine
mammals, by Level B harassment only. Neither Vineyard Northeast nor
NMFS expects serious injury or mortality to result from this activity
and, therefore, an IHA is appropriate. A notice of NMFS' proposal to
issue an IHA to Vineyard Northeast was published in the Federal
Register on May 20, 2022 (87 FR 30872).
NMFS previously issued an IHA (85 FR 42357; July 14, 2020) and a
renewal of that IHA (86 FR 38296; July 20, 2021) to Vineyard Wind, LLC
(Vineyard Wind) for similar marine site characterization surveys.
Vineyard Wind has split into several corporate entities which now
include Vineyard Wind, Vineyard Wind 1, LLC (Vineyard Wind 1), and,
most recently, Vineyard Northeast. NMFS issued an IHA for similar
surveys to Vineyard Wind 1 on July 28, 2021 (86 FR 40469). Although the
surveys analyzed in this IHA issued to Vineyard Northeast will occur in
an area that overlaps the survey areas in the previous Vineyard Wind
IHA and Renewal IHA, and Vineyard Wind 1 IHA (and potentially a
renewal, if appropriate), NMFS issued this IHA to the separate
corporate entity, Vineyard Northeast. The surveys described here will
occur over a much broader geographic range than the surveys completed
under the previous IHAs described above, extending to southern New
Jersey and incorporating a lease area (OCS-A 0544) not yet surveyed by
Vineyard Wind, Vineyard Wind 1, or Vineyard Northeast. In addition, the
track lines to be covered during Vineyard Northeast's surveys are
distinct from those previously surveyed by Vineyard Wind and Vineyard
Wind 1.
Vineyard Wind complied with all the requirements (e.g., mitigation,
monitoring, and reporting) of the 2020 IHA (85 FR 42357; July 14, 2020)
and information regarding their monitoring results may be found in the
Estimated Take section. Both the Renewal IHA issued to Vineyard Wind
(86 FR 38296; July 20, 2021) and the 2021 IHA issued to Vineyard Wind 1
(86 FR 40469; July 28, 2021) are ongoing, therefore, monitoring data
are not yet available. Vineyard Wind's final marine mammal monitoring
report submitted pursuant to the 2020 IHA can be found at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-llc-marine-site-characterization-surveys">https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-wind-llc-marine-site-characterization-surveys</a>.
Description of Specified Activity
Vineyard Northeast plans to conduct marine site characterization
surveys using high-resolution geophysical (HRG) equipment in Federal
offshore waters (including Lease Areas OCS-A 0522 and OCS-A 0544) and
along potential OECCs in both Federal and State nearshore waters of
Massachusetts, Rhode Island, Connecticut, New York, and New Jersey (see
Figure 1 in the notice of the proposed IHA).
Dates and Duration
Vineyard Northeast plans to commence surveys in July 2022 and
continue for 1 year. Based on 24-hour operations, HRG survey activities
are expected to require 869 vessel days, with an estimated daily survey
distance of 80 kilometers (km) per vessel (assuming 24-hour
operations). Each day that a vessel surveys approximately 80 km within
24 hours will count as a single survey day, e.g., two survey vessels
operating on the same day would count as two survey days. The use of
concurrently surveying vessels will facilitate completion of all 869
vessel days within one year.
A detailed description of Vineyard Northeast's planned surveys is
provided in the Federal Register notice of the proposed IHA (87 FR
30872; May 20, 2022). Since that time, no changes have been made to the
project activities. Therefore, a detailed description is not provided
here. Please refer to that Federal Register notice for the description
of the specified activities. Here, we provide brief information on the
survey effort and sound sources Vineyard Northeast will use during the
surveys (Table 1). We note that all decibel (dB) levels included in
this notice are referenced to 1 microPascal (1 [mu]Pa). The root mean
square decibel level (dB<INF>rms</INF>) represents the square root of
the average of the pressure of the sound signal over a given duration.
The peak dB level (dB<INF>peak</INF>) represents the range in pressure
between zero and the greatest pressure of the signal. Operating
frequencies are presented in kilohertz (kHz).
[[Page 52915]]
Table 1--Summary of Representative HRG Equipment \1\
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In-beam source level
Frequency Beam width Pulse Repetition (dB)
System (kHz) ([deg]) duration rate (Hz) -------------------------
(ms) RMS Pk
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Shallow subbottom profiler (non-
impulsive):
EdgeTech Chirp 216............ 2-16 65 2 3.75 178 182
Deep seismic profiler (impulsive):
Applied Acoustics AA251 Boomer 0.2-15 180 0.8 2 205 212
GeoMarine Geo Spark 2000 (400 0.05-3 180 3.4 1 203 213
tip).........................
----------------------------------------------------------------------------------------------------------------
\1\ Edge Tech Chirp 512i used as proxy source for Edge Tech 216, as Chirp 512i has similar operation settings as
Chirp 216. SIG ELC 820 Sparker used as proxy for GeoMarine Geo Spark 2000 (400 tip), as SIG ELC 820 has
similar operation settings as Geo Spark 2000. See Crocker and Fratantonio (2016) and Table A-3 in Appendix A
of Vineyard Northeast's application for more information.
Mitigation, monitoring, and reporting measures are described in
detail later in this document (please see Mitigation and Monitoring and
Reporting).
Comments and Responses
The notice of the proposed IHA described, in detail, Vineyard
Northeast's activities, the marine mammal species that may be affected
by the activities, and the anticipated effects on marine mammals. In
that notice, we requested public input on the request for authorization
described therein, our analyses, the proposed authorization, and any
other aspect of the notice of proposed IHA, and requested that
interested persons submit relevant information, suggestions, and
comments. This proposed notice was available for a 30-day public
comment period.
NMFS received 1 non-substantive comment from a private citizen, and
two substantive comment letters from environmental non-governmental
organizations (eNGOs) (Oceana, Inc. and Clean Ocean Action (COA)). A
summary of comments from Oceana and COA, and NMFS' responses, are
provided below; the letters are available online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-northeast-llc-marine-site-characterization-surveys">https://www.fisheries.noaa.gov/action/incidental-take-authorization-vineyard-northeast-llc-marine-site-characterization-surveys</a>.
Comment 1: Oceana made comments objecting to NMFS' renewal process
regarding the extension of any one-year IHA with a truncated 15-day
public comment period, and suggested an additional 30-day public
comment period is necessary for any renewal request.
NMFS' response: NMFS' IHA renewal process meets all statutory
requirements. In prior responses to comments about IHA renewals (e.g.,
84 FR 52464; October 2, 2019 and 85 FR 53342, August 28, 2020), NMFS
has explained how the renewal process, as implemented, is consistent
with the statutory requirements contained in section 101(a)(5)(D) of
the MMPA, and, further, promotes NMFS' goals of improving conservation
of marine mammals and increasing efficiency in the MMPA compliance
process. Therefore, we intend to continue implementing the renewal
process.
The notice of the proposed IHA published in the Federal Register on
May 20, 2022 (87 FR 30872) made clear that the agency was seeking
comment on the proposed IHA and the potential issuance of a renewal for
this survey. Because any renewal is limited to another year of
identical or nearly identical activities in the same location or the
same activities that were not completed within the 1-year period of the
initial IHA, reviewers have the information needed to effectively
comment on both the immediate proposed IHA and a possible 1-year
renewal, should the IHA holder choose to request one in the coming
months.
While there would be additional documents submitted with a renewal
request, for a qualifying renewal, these would be limited to
documentation that NMFS would make available and use to verify that the
activities are identical to those in the initial IHA, are nearly
identical such that the changes would have either no effect on impacts
to marine mammals or decrease those impacts, or are a subset of
activities already analyzed and authorized but not completed under the
initial IHA. NMFS would also need to confirm, among other things, that
the activities would occur in the same location; involve the same
species and stocks; provide for continuation of the same mitigation,
monitoring, and reporting requirements; and that no new information has
been received that would alter the prior analysis. The renewal request
would also contain a preliminary monitoring report, in order to verify
that effects from the activities do not indicate impacts of a scale or
nature not previously analyzed. The additional 15-day public comment
period provides the public an opportunity to review these few
documents, provide any additional pertinent information and comment on
whether they think the criteria for a renewal have been met. With 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 remarked that NMFS must utilize the best
available science. The commenters further suggested that NMFS failed to
do so with respect to relatively recent shifts in habitat use by right
whales within Vineyard Northeast's survey area. Both Oceana and COA
specifically asserted that NMFS is not using the best available science
with regard to the North Atlantic right whale (NARW) population
estimate and state that NMFS should be using the 336 estimate presented
in the recent North Atlantic Right Whale Report Card (<a href="https://www.narwc.org/report-cards.html">https://www.narwc.org/report-cards.html</a>).
NMFS' response: While NMFS agrees that the best available science
should be used for assessing NARW abundance estimates, we disagree
that, at this time, the North Atlantic Right Whale Report Card (i.e.,
Pettis et al. (2022)) study represents the most recent and best
available estimate for NARW
[[Page 52916]]
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 best available estimate, and introduced
improvements to NMFS' right whale abundance model. Specifically, Pace
(2021) looked at a different way of characterizing annual estimates of
age-specific survival. NMFS considered all relevant information
regarding NARW, including the information cited by the commenters.
However, NMFS relies on the SAR.
Recently (after publication of the notice of proposed IHA), NMFS
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>). Accordingly, we anticipate that the draft
2022 SAR will present a lower population estimate, at which point NMFS
will adopt its use. Until then, we will use the population estimate of
368 as the basis for our small numbers findings. We note that this
change in abundance estimate would not change the estimated take of
NARWs or authorized take numbers, nor affect our ability to make the
required findings under the MMPA for Vineyard Northeast's survey
activities.
NMFS further notes that Oceana seems to be conflating the phrase
``best available science'' with ``the most recent science.'' The MMPA
specifies that the ``best available data'' must be used, which does not
always mean the most recent. At this time, in consideration of all
available data, NMFS considers the NARW abundance estimate of 368 from
the 2021 SARs as the best available science and have appropriately used
it in our analysis. The Pace (2021) results strengthened the case for a
change in mean survival rates after 2010-2011, but did not
significantly change other current estimates (population size, number
of new animals, adult female survival) derived from the model.
Furthermore, NMFS notes that the SARs are peer reviewed by other
scientific review groups prior to being finalized and published and
that the North Atlantic Right Whale Report Card (Pettis et al., 2022)
does not undertake this process.
Oceana expressed concern regarding shifting patterns in NARW
occurrence and habitat usage, stating that NMFS was not appropriately
considering relevant information on this topic. While this survey
intersects migratory and foraging habitat for NARWs, including a newer
year-round ``core'' NARW foraging habitat south of Martha's Vineyard
and Nantucket (Oleson et al., 2020), NMFS notes that prey for NARWs are
mobile and broadly distributed throughout the survey area; therefore,
NARW foraging efforts are not likely to be disturbed given the location
of these planned activities in relation to the broader area within
which NARW migrate and forage. In addition, survey activity will not
occur in Cape Cod Bay from January 1 through May 15, the period when
densities of right whales and zooplankton prey are highest. There is
ample foraging habitat within and near the survey area that will not be
ensonified by the acoustic sources used by Vineyard Northeast, such as
in the Great South Channel and Georges Bank Shelf Break feeding
biologically important areas (BIAs), and south of Martha's Vineyard and
Nantucket. Lastly, as we stated in the proposed Notice, given that any
impacts to marine mammals from the planned survey activities are
expected to be temporary and minor, such impacts are not expected to
result in disruption to biologically important behaviors.
Comment 3: Oceana noted that chronic stressors are an emerging
concern for NARW conservation and recovery, and stated that chronic
stress may result in energetic effects for NARWs. Oceana suggested that
NMFS has not fully considered both the use of the area and the effects
of both acute and chronic stressors on the health and fitness of NARWs,
as disturbance responses in NARWs could lead to chronic stress or
habitat displacement, leading to an overall decline in their health and
fitness.
NMFS' 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 Vineyard
Northeast's 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
Vineyard Northeast would create conditions of acute or chronic acoustic
exposure leading to long-term physiological stress responses in marine
mammals. NMFS has also prescribed a robust suite of mitigation
measures, including extended distance shutdowns for NARWs that are
expected to further reduce the duration and intensity of acoustic
exposure, while limiting the potential severity of any possible
behavioral disruption. The potential for chronic stress was evaluated
in making the determinations presented in NMFS's negligible impact
analyses (please see Negligible Impact Analysis and Determination
section for details). The survey area does partially overlap the
migratory corridor BIA and migratory route SMA as well as several
seasonal foraging habitats for NARWs. However, the very small maximum
Level B harassment zone (178 m radius) coupled with a maximum of two
survey vessels operating at any given time in both the Lease Areas and
in nearshore waters limits opportunities for potential impacts on
migration and/or foraging behaviors to occur. Given that NARWs
generally use the migratory corridor in a transitory manner, any
potential impacts from these surveys during migration are lessened due
to the brief periods when exposure is possible. In addition, there is
ample foraging habitat in the northern portion of the survey area, as
well as a seasonal restriction on survey activities in Cape Cod Bay
from January 1 through May 15, when NARWs and their zooplankton prey
occur in high densities in the Bay. NMFS expects that all potential
takes would be in the form of short-term Level B behavioral harassment
in the form of temporary avoidance of the area or decreased foraging
(if such activity was occurring), reactions that are considered to be
of low severity and with no lasting biological consequences (e.g.,
Southall et al., 2007).
Comment 4: Oceana asserted that NMFS must fully consider the
discrete effects of each activity and the cumulative effects of the
suite of approved, proposed and potential activities on marine mammals
and NARWs in particular and ensure that the cumulative effects are not
excessive before issuing or renewing an IHA.
NMFS' response: Neither the MMPA nor NMFS' codified implementing
regulations call for a separate ``cumulative effects'' analysis. 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,
[[Page 52917]]
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 separately considered in making findings under section 101(a)(5)
concerning negligible impact. In this case, this IHA, as well as other
IHAs currently in effect or proposed within the specified geographic
region, are appropriately considered an unrelated activity relative to
the others. The IHAs are unrelated in the sense that they are discrete
actions under section 101(a)(5)(D), issued to discrete applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of the specified activity or
class of activities that can be expected to result in incidental taking
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, Vineyard Northeast 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 that (1) we would consider cumulative
effects that are reasonably foreseeable when preparing a NEPA analysis,
and (2) reasonably foreseeable cumulative effects would also be
considered under section 7 of the ESA for ESA-listed species, as
appropriate. Accordingly, NMFS has written Environmental Assessments
(EA) that addressed cumulative impacts related to substantially similar
activities, in similar locations, e.g., the 2017 Ocean Wind, LLC EA for
site characterization surveys off New Jersey; the 2018 Deepwater Wind
EA for survey activities offshore Delaware, Massachusetts, and Rhode
Island; and the 2019 Orsted EA for survey activities offshore southern
New England. Cumulative impacts regarding issuance of IHAs for site
characterization survey activities such as those planned by Vineyard
Northeast have been addressed under NEPA in prior environmental
analyses and support NMFS' determination that this action is
appropriately categorically excluded from further NEPA analysis. NMFS
independently evaluated the use of a categorical exclusion for issuance
of Vineyard Northeast's IHA, which included consideration of
extraordinary circumstances.
For ESA-listed species, the cumulative effects of substantially
similar activities in the same geographic region have been analyzed in
the past under section 7 of the ESA when NMFS has engaged in formal
intra-agency consultation, such as the 2013 programmatic Biological
Opinion (BiOp) 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 Vineyard Wind's 2020 IHA and 2021
IHA (85 FR 26940; May 6, 2020 and 86 FR 40469 July 28, 2021), which are
substantially similar to those planned by Vineyard Northeast under this
current IHA request. This Biological Opinion determined that NMFS'
issuance of IHAs for site characterization survey activities associated
with leasing, individually and cumulatively, are not likely to
adversely affect listed marine mammals. NMFS notes, that while issuance
of this IHA is covered under a different consultation, this BiOp
remains valid and the surveys currently planned by Vineyard Northeast
from 2022 to 2023 could have fallen under the scope of those analyzed
previously.
Comment 5: Oceana states that NMFS must make an assessment of which
activities, technologies and strategies are truly necessary to provide
information to inform development of Vineyard Northeast 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.
NMFS' response: The MMPA requires that an IHA include measures that
will effect the least practicable adverse impact on the affected
species and stocks and, in practice, NMFS agrees that the IHA should
include conditions for the survey activities that will first avoid
adverse effects on NARWs in and around the survey site, where
practicable, and then minimize the effects that cannot be avoided. NMFS
has determined that the IHA meets this requirement to effect the least
practicable adverse impact. Oceana does not make any specific
recommendations of measures to add to the IHA. As part of the analysis
for all marine site characterization survey IHAs, NMFS evaluated the
effects expected as a result of the specified activity, made the
necessary findings, and prescribed mitigation requirements sufficient
to achieve the least practicable adverse impact on the affected species
and stocks of marine mammals. It is not within NMFS' purview to
prescribe the techniques or technologies most appropriate for meeting
the objectives of the specified activity (e.g., survey).
Comment 6: Oceana suggests that PSOs complement their survey
efforts using additional technologies, such as infrared detection
devices when in low-light conditions.
NMFS' 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 Federal Register notice for the
proposed IHA. 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) (18.5 km/hour) at all times due to the risk of
vessel strikes to NARWs and other large whales.
NMFS' response: While NMFS acknowledges that vessel strikes can
result in injury or mortality, we have analyzed the potential for ship
strike resulting from Vineyard Northeast's activity and have determined
that based on the nature of the activity and the required mitigation
measures specific to vessel strike avoidance included in the IHA,
potential for vessel strike is so low as to be discountable. These
mitigation measures, all of which were included in the proposed IHA and
are required in the final IHA, include: a requirement that all vessel
operators and crews maintain a vigilant watch for all marine mammals
and slow down, stop their vessel, or alter course as appropriate to
avoid striking any marine mammal; a requirement that all vessel
operators, regardless of vessel size, observe the 10 kn (18.5 km/hour)
or less speed restriction in any Seasonal Management Area (SMA) and
Dynamic Management Area (DMA) (when in effect), and check regularly for
information regarding detections of NARWs in the survey area
[[Page 52918]]
before and throughout survey activities, and establishment of a DMA; a
requirement that all vessel operators reduce vessel speed to 10 kn
(18.5 km/hour) or less when mother/calf pairs, pods, or large
assemblages of 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 whale
that cannot be confirmed to species; a requirement that, if underway,
vessels must steer a course away from any sighted ESA-listed whale at
10 kn (18.5 km/hour) or less until the 500-m minimum separation
distance has been established; a requirement that, if an ESA-listed
whale is sighted in a vessel's path, or within 500 m of an underway
vessel, the underway vessel must reduce speed and shift the engine to
neutral; a requirement that all vessels underway must maintain a
minimum separation distance of 100 m from all non-ESA-listed baleen
whales; and a requirement that all vessels underway must, to the
maximum extent practicable, attempt to maintain a minimum separation
distance of 50 m from all other marine mammals, with an understanding
that at times this may not be possible (e.g., for animals that approach
the vessel). We have determined that the ship strike avoidance measures
in the IHA are sufficient to ensure the least practicable adverse
impact on species or stocks and their habitat. Furthermore, no vessel
strikes have been documented 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 to maintain a
separation distance of at least 500 m from NARWs at all times.
NMFS' response: NMFS agrees with Oceana regarding this suggestion
and a requirement to maintain a separation distance of at least 500 m
from NARWs at all times was included in the proposed Federal Register
notice and was included as a requirement in the issued IHA.
Comment 9: Oceana recommended that the IHA should require all
vessels supporting site characterization to be equipped with and using
Class A Automatic Identification System (AIS) devices at all times
while on the water. Oceana suggested this requirement should apply to
all vessels, regardless of size, associated with the survey.
NMFS' 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 Vineyard Northeast, with the potential for
both Level A and Level B harassment take, of greater number and
severity. 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 the cost and impracticability issues associated with this
requirement (e.g., poor data quality, necessary to use in corroboration
with other data sources, often produces misleading tracks). Therefore,
we have determined that the measure is not warranted for this activity
and have not included it.
Comment 10: Oceana asserts that the IHA must include requirements
to hold all vessels associated with site characterization surveys
accountable to the IHA requirements, including vessels owned by the
developer, contractors, employees, and others regardless of ownership,
operator, and contract. They state that exceptions and exemptions will
create enforcement uncertainty and incentives to evade regulations
through reclassification and redesignation. They recommend that NMFS
simplify this by requiring all vessels to abide by the same
requirements, regardless of size, ownership, function, contract or
other specifics.
NMFS' 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 Vineyard Northeast, the vessel
operators, the lead PSO, and any other relevant designees of Vineyard
Northeast operating under the authority of this IHA. The IHA also
states that Vineyard Northeast must ensure that all the vessel
operators and other relevant vessel personnel, including the Protected
Species Observer (PSO) team, are briefed on all responsibilities,
communication procedures, marine mammal monitoring protocols,
operational procedures, and IHA requirements prior to the start of
survey activity, and when relevant new personnel join the survey
operations.
Comment 11: Oceana stated that the IHA must include a requirement
for all phases of the Vineyard Northeast site characterization to
subscribe to the highest level of transparency, including frequent
reporting to federal agencies, requirements to report all visual and
acoustic detections of NARWs and any dead, injured, or entangled marine
mammals to NMFS or the Coast Guard as soon as possible and no later
than the end of the PSO shift. Oceana states that to foster stakeholder
relationships and allow public engagement and oversight of the
permitting, the IHA should require all reports and data to be
accessible on a publicly available website.
NMFS' response: NMFS agrees with the need for reporting and indeed,
the MMPA calls for IHAs to incorporate reporting requirements. As was
included in the proposed IHA, the final IHA includes requirements for
reporting that supports Oceana's recommendations. Vineyard Northeast is
required to submit a monitoring report to NMFS within 90 days after
completion of survey activities that fully documents the methods and
monitoring protocols, summarizes the data recorded during monitoring,
and describes, assesses and compares the effectiveness of monitoring
and mitigation measures. PSO datasheets or raw sightings data must also
be provided with the draft and final monitoring report. Further, the
draft IHA and final IHA stipulate that if a NARW is observed at any
time by any survey vessels, during surveys or during vessel transit,
Vineyard Northeast must immediately report sighting information to the
NMFS North Atlantic Right Whale Sighting Advisory System and to the
U.S. Coast Guard, and that any discoveries of injured or dead marine
mammals be reported by Vineyard Northeast to the Office of Protected
Resources, NMFS, and to the New England/Mid-Atlantic Regional Stranding
Coordinator as soon as feasible. All reports and associated data
submitted to NMFS are included on the website for public inspection.
Comment 12: Oceana recommended increasing the shutdown zone size to
1,000 m for NARWs.
NMFS' response: NMFS notes that the 500 m shutdown zone for NARWs
exceeds the modeled distance to the largest 160 dB Level B harassment
isopleth (178 m) by a conservative margin. Oceana does not provide a
compelling rationale for why the shutdown zone should be even larger.
Given that these surveys are relatively low impact and that NMFS has
prescribed a precautionary NARW shutdown zone that is larger than the
conservatively estimated largest harassment zone, NMFS has determined
that the shutdown zone size is appropriate. Further, Level A harassment
is not expected, even in the absence of mitigation, given the
[[Page 52919]]
characteristics of the sources planned for use. As described in the
Mitigation section, NMFS has determined that the prescribed mitigation
requirements are sufficient to effect the least practicable adverse
impact on all affected species or stocks.
Comment 13: Oceana recommended that NMFS should require Vineyard
Northeast to monitor pre-start clearance and shutdown zones using
Passive Acoustic Monitoring (PAM) to maximize the probability of
detecting NARWs.
NMFS' response: Oceana does not explain why they expect that PAM
would be effective in detecting vocalizing mysticetes, nor does NMFS
agree that this measure is warranted, as it is not expected to be
effective for use in detecting the species of concern. It is generally
accepted that, even in the absence of additional acoustic sources,
using a towed passive acoustic sensor to detect baleen whales
(including NARWs) is not typically effective because the noise from the
vessel, the flow noise, and the cable noise are in the same frequency
band and will mask the vast majority of baleen whale calls. Vessels
produce low-frequency noise, primarily through propeller cavitation,
with main energy in the 5-300 Hertz (Hz) frequency range. Source levels
range from about 140 to 195 decibel (dB) re 1 [mu]Pa (micropascal) at 1
m (NRC, 2003; Hildebrand, 2009), depending on factors such as ship
type, load, and speed, and ship hull and propeller design. Studies of
vessel noise show that it appears to increase background noise levels
in the 71-224 Hz range by 10-13 dB (Hatch et al., 2012; McKenna et al.,
2012; Rolland et al., 2012). PAM systems employ hydrophones towed in
streamer cables approximately 500 m behind a vessel. Noise from water
flow around the cables and from strumming of the cables themselves is
also low-frequency and typically masks signals in the same range.
Experienced PAM operators participating in a relatively recent workshop
(Thode et al., 2017) emphasized that a PAM operation could easily
report that no acoustic encounters occurred, 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 vessel noise and flow noise).
There are several additional reasons why we do not agree that use
of PAM is warranted for 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 178 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, yet 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 experience reduced
impacts). Additionally, localization and range detection can be
challenging under certain scenarios. For example, odontocetes are fast
moving and often travel in large or dispersed groups which makes
localization difficult.
Given that the effects to marine mammals from the types of surveys
authorized in this IHA are expected to be limited to low level
behavioral harassment even in the absence of mitigation, the limited
additional benefit anticipated by adding this detection method
(especially for NARWs and other low frequency cetaceans, species for
which PAM has limited efficacy), and the cost and impracticability of
implementing a full-time PAM program, we have determined the current
requirements for visual monitoring are sufficient to ensure the least
practicable adverse impact on the affected species or stocks and their
habitat. NMFS has previously provided discussions on why PAM 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).
Regarding monitoring for species that may be present yet go
unobserved, NMFS recognizes that visual detection based mitigation
approaches are not 100 percent effective. Animals are missed because
they are underwater (availability bias) or because they are available
to be seen, but are missed by observers (perception and detection
biases) (e.g., Marsh and Sinclair, 1989). However, visual observation
remains one of the best available methods for marine mammal detection.
Although it is likely that some marine mammals may be present yet
unobserved within the harassment zone, all expected take of marine
mammals has been appropriately authorized. For mysticete species in
general, it is unlikely that an individual would occur within the
estimated 141 m harassment zone and remain undetected. For NARW in
particular, the required pre-start clearance and shutdown zone are 500
m and, therefore, it is even less likely that an individual would
approach the harassment zone undetected.
Comment 14: Oceana recommended a shutdown requirement if a NARW or
other ESA-listed species is detected in the pre-start clearance zone as
well as a publically available explanation of any exemptions as to why
the applicant would not be able to shutdown in these situations.
NMFS' response: There are several shutdown requirements described
in the Federal Register notice of the proposed IHA (87 FR 30872, May
20, 2022), and required 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. In regards to reporting,
Vineyard Northeast must notify NMFS if a NARW is observed at any time
by any survey vessels during surveys or during vessel transit.
Additionally, Vineyard Northeast is required to report the relevant
survey activity information, such as such as the type of survey
equipment in operation, acoustic source power output while in
operation, and any other notes of significance (i.e., pre-clearance
survey, ramp-up, shutdown, end of operations, etc.) as well as the
estimated distance to an animal and its heading relative to the survey
vessel at the initial sighting and survey activity information. We note
that if a right whale is detected within the shutdown zone before a
shutdown is implemented, the right whale and its distance from the
sound source, including if it is within the Level B harassment zone,
would be reported in Vineyard Northeast's final monitoring report and
made publicly available on NMFS' website. Vineyard Northeast is
required to immediately notify NMFS of any sightings of NARWs and
report survey activity information. NMFS believes that these
requirements address the commenter's concerns.
Comment 15: Oceana recommended that when HRG surveys are allowed to
resume after a shutdown event, the
[[Page 52920]]
surveys should be required to use a ramp-up procedure to encourage any
nearby marine life to leave the area.
NMFS' response: NMFS agrees with this recommendation and included
in the Federal Register notice of the proposed IHA (87 FR 30972, May
20, 2022) and this final IHA a stipulation that when technically
feasible, survey equipment must be ramped up at the start or restart of
survey activities. Ramp-up must begin with the power of the smallest
acoustic equipment at its lowest practical power output appropriate for
the survey. When technically feasible the power must then be gradually
turned up and other acoustic sources added in a way such that the
source level would increase gradually. NMFS notes that ramp-up would
not be required for short periods where acoustic sources were shut down
(i.e., less than 30 minutes) if PSOs have maintained constant visual
observation and no detections of marine mammals occurred within the
applicable shutdown zones.
Comment 16: COA asserts that Level A harassment may occur, and that
this was not accounted for in the proposed Notice.
NMFS' response: NMFS acknowledges the concerns brought up by the
commenters regarding the potential for Level A harassment of marine
mammals. However, no Level A harassment is expected to result, even in
the absence of mitigation, given the characteristics of the sources
planned for use. This is additionally supported by the required
mitigation and very small estimated Level A harassment zones described
in Vineyard Wind's 2020 Federal Register notice (85 FR 26940, May 6,
2020) and 2021 IHA (86 FR 40469, July 28, 2021) which, as stated
earlier, carried out similar activities using the same type of acoustic
sources in the same geographic area. Furthermore, the commenters do not
provide any support or scientific basis for the apparent contention
that Level A harassment is a ``likely'' outcome of these activities. As
discussed in the notice of proposed IHA, NMFS considers this category
of survey operations to be near de minimis, with the potential for
Level A harassment for any species to be discountable.
Comment 17: COA claims that the proposed vessel strike avoidance
measures are insufficient and only directed at Vineyard Northeast's
survey vessels, whereas the risk of collision between right whales and
vessels not associated with the specified activity will increase
because these two entities will be forced to navigate around survey
vessels.
NMFS' response: Vineyard Northeast did not request authorization
for take incidental to vessel traffic during Vineyard Northeast's
marine site characterization survey. Nevertheless, NMFS analyzed the
potential for vessel strikes to occur during the survey, and determined
that the potential for vessel strike is so low as to be discountable.
NMFS does not authorize any take of marine mammals incidental to vessel
strike resulting from the survey. If Vineyard Northeast were to strike
a marine mammal with a vessel, this would be an unauthorized take and
be in violation of the MMPA. This gives Vineyard Northeast a strong
incentive to operate its vessels with all due caution and to
effectively implement the suite of vessel strike avoidance measures
called for in the IHA. Vineyard Northeast proposed a very conservative
suite of mitigation measures related to vessel strike avoidance,
including measures specifically designed to avoid impacts to NARWs.
Section 4(f) in the IHA contains a suite of non-discretionary
requirements pertaining to vessel strike avoidance, including vessel
operation protocols and monitoring. To date, NMFS is not aware of any
site characterization vessel from surveys reporting a ship strike
within the United States. In addition, Vineyard Northeast will only
operate a maximum of two survey vessels in the Lease Area and two
survey vessels in the nearshore area (<30 m) at any given time, thus
further reducing the potential for vessel strike to occur. When
considered in the context of low overall probability of any vessel
strike by Vineyard Northeast vessels, given the limited additional
survey-related vessel traffic relative to existing traffic in the
survey area, the comprehensive visual monitoring, and other additional
mitigation measures described herein, NMFS believes these measures are
sufficiently protective to avoid vessel strike. These measures are
described fully in the Mitigation section below, and include, but are
not limited to: training for all vessel observers and captains, daily
monitoring of NARW Sighting Advisory System, WhaleAlert app, and USCG
Channel 16 for situational awareness regarding NARW presence in the
survey area, communication protocols if whales are observed by any
Vineyard Northeast personnel, vessel operational protocol should any
marine mammal be observed, and visual monitoring.
The potential for vessel strike by vessels not associated with site
characterization survey vessels is separate from the aforementioned
analysis of potential for vessel strike during Vineyard Northeast's
specified survey activities, and outside the scope of analysis related
to the authorization of take incidental to Vineyard Northeast's
specified activity under the MMPA. For more information about
cumulative impacts, please see NMFS' response to comment 4.
Comment 18: COA claimed that it was not clear whether the analyses
and proposed take applied to short-beaked or long-beaked common
dolphins, and pointed out an error in reporting the amount of take
proposed for authorizations for this species.
NMFS' response: We appreciate COA pointing out the errors in the
amount of take and percent of the population abundance reported for
common dolphins in the Federal Register notice for the proposed IHA.
Although the Federal Register notice reported an incorrect amount of
take of common dolphins (24,480), the proposed IHA itself did report
the correct amount (13,904). NMFS has made the necessary correction
such that this notice and the final IHA authorized take values align,
and has corrected the percentage of authorized take relative to the
species' overall abundance to 8.0 percent.
Regarding the claim that it is not clear if the amount of take
requested for common dolphins is attributed to short-beaked or long-
beaked common dolphins, or some combination of the two, please note
that the application and Federal Register notice specify that only
short-beaked common dolphins are expected to be encountered in the
survey. This assumption is noted by the exclusive species name
designation in Table 2 (Delphinus delphis) of the Federal Register
notice for the proposed IHA and in section 4.2.6 of Vineyard
Northeast's application.
Comment 19: COA is concerned regarding the number of species that
could be impacted by the activities, as well as a lack of baseline data
available for species in the area, noting particular concern for harbor
seals occurring in New Jersey waters.
NMFS' 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 (87 FR 30972, May 20, 2022) have some
likelihood of occurring in Vineyard Northeast's survey areas.
Furthermore, the MMPA requires us to evaluate the effects of the
[[Page 52921]]
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 regarding 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>). NMFS has duly considered this
and all available information.
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 to the Final IHA
Since publication of the notice of proposed IHA, NMFS has
acknowledged that the population estimate of NARWs is now under 350
animals (<a href="https://www.fisheries.noaa.gov/species/north-atlantic-right-whale">https://www.fisheries.noaa.gov/species/north-atlantic-right-whale</a>). However, NMFS has determined that this change in the abundance
estimate would not change the estimated take of NARWs or authorized
take number, nor affect our ability to make the required findings under
the MMPA for Vineyard Northeast's survey activities. The status and
trends of the NARW population remain unchanged for the purposes of our
analyses.
In addition, we made corrections to take values for several species
in Table 5 of this notice to ensure alignment with the analogous values
in Table 1 of the draft IHA. Finally, we added condition 5(b) to the
IHA, which states that on a case-by-case basis, non-independent
observers may be approved by NMFS for limited, specific duties (i.e.,
stand watch while the independent NMFS-approved PSO takes the required
2-hour break between 4-hour shifts) om smaller vessels with limited
occupancy. Non-independent observers may only perform PS0 duties during
daylight hours and in nearshore waters. Vineyard Northeast intends to
utilize an approximately 15-m (50-ft) vessel that can accommodate a
captain, 4-person survey team, one independent NMFS-approved PSO, and a
project overseer. The onboard project overseer will serve as the non-
independent relief observer and must be trained on protected species
detection and identification, vessel strike minimization procedures,
and reporting requirements in this IHA. In addition, the relief
observer must have no duties other than marine mammal monitoring when
on watch. Finally, if a whale is observed but cannot be confirmed as a
species other than a right whale, the non-independent observer must
assume that it is a right whale, and take appropriate action (i.e.,
call for a delay or shutdown). Given the limited role of the non-
independent observer and the training and additional safeguards
required, we conclude that the condition 5(b) will not affect our
analyses or determination that the IHA meets all applicable
requirements.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of Vineyard Northeast's 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,
rather than replicating it here, we refer the reader to these
descriptions in the application. Additional information regarding
population trends and threats may be found in NMFS' Stock Assessment
Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general
information about these species (e.g., physical and behavioral
descriptions) may be found on NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species or stocks for which take is authorized
for this action, and summarizes information related to the population
or stock, including regulatory status under the MMPA and Endangered
Species Act (ESA) and potential biological removal (PBR), where known.
For taxonomy, NMFS follows Committee on Taxonomy (2022). PBR is defined
by the MMPA as the maximum number of animals, not including natural
mortalities, that may be removed from a marine mammal stock while
allowing that stock to reach or maintain its optimum sustainable
population (as described in NMFS' SARs). While no mortality is
anticipated or authorized here, PBR, and annual serious injury and
mortality from anthropogenic sources are included here as gross
indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in
Table 2 are the most recent available at the time of publication and
are available in the Draft 2021 SARs (Hayes et al., 2021), available
at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>).
Table 2--Species Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Cetartiodactyla--Cetacea--Superfamily Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Blue whale.......................... Balaenoptera musculus.. Western North Atlantic. E/D, Y 402 (unk, 402; 2008).. 0.8 0
North Atlantic right whale.......... Eubalaena glacialis.... Western North Atlantic. E/D, Y 368 \4\ (0; 364; 2019) 0.7 7.7
Humpback whale...................... Megaptera novaeangliae. Gulf of Maine.......... -/-; Y 1,396 (0; 1,380; 2016) 22 12.15
Fin whale........................... Balaenoptera physalus.. Western North Atlantic. E/D, Y 6,802 (0.24; 5,573; 11 1.8
2016).
[[Page 52922]]
Sei whale........................... Balaenoptera borealis.. Nova Scotia............ E/D, Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
Minke whale......................... Balaenoptera Canadian Eastern -/-, N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. Coastal. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Superfamily Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale......................... Physeter macrocephalus. North Atlantic......... E/D, Y 4,349 (0.28; 3,451; 3.9 0
2016).
Long-finned pilot whale............. Globicephala melas..... Western North Atlantic. -/-, N 39,215 (0.3; 30,627; 306 29
2016).
Killer whale........................ Orcinus Orca........... Western North Atlantic. -/-, N unk (unk; unk; 2016).. unk 0
False killer whale.................. Pseudorca crassidens... Western North Atlantic. -/-, N 1,791 (0.56; 1,154; 12 0
2016).
Atlantic spotted dolphin............ Stenella frontalis..... Western North Atlantic. -/-, N 39,921 (0.27; 32,032; 320 0
2016).
Atlantic white-sided dolphin........ Lagenorhynchus acutus.. Western North Atlantic. -/-, N 93,233 (0.71; 54,443; 544 227
2016).
Bottlenose dolphin.................. Tursiops truncatus..... Western North Atlantic -/D, Y 6,639 (0.41; 4,759; 48 12.2-21.5
Northern Migratory 2016).
Coastal.
Western North Atlantic -/-, N 62,851 (0.23; 51,914; 519 28
Offshore. 2016).
Common dolphin...................... Delphinus delphis...... Western North Atlantic. -/-, N 172,974 (0.21, 1,452 390
145,216, 2016).
Risso's dolphin..................... Grampus griseus........ Western North Atlantic. -/-, N 35,215 (0.19; 30,051; 301 34
2016).
White-beaked dolphin................ Lagenorhynchus Western North Atlantic. -/-, N 536,016 (0.31; 4,153 0
albirostris. 415,344; 2016).
Harbor porpoise..................... Phocoena phocoena...... Gulf of Maine/Bay of -/-, N 95,543 (0.31; 74,034; 851 164
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal......................... Phoca vitulina......... Western North Atlantic. -/-, N 61,336 (0.08; 57,637; 1,729 339
2018).
Gray seal \5\....................... Halichoerus grypus..... Western North Atlantic. -/-, N 27,300 (0.22; 22,785; 1,389 4,453
2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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 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\ 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>).
\5\ NMFS' gray seal stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in
Canada) is approximately 450,000. The annual mortality and serious injury (M/SI) value given is for the total stock.
Table 2 includes 15 species (with 16 managed stocks) that
temporally and spatially co-occur with the activity to the degree that
take is reasonably likely to occur. Vineyard Northeast is also
requesting take of four species that are considered rare in the survey
area (i.e., blue whale, killer whale, false killer whale, and white-
beaked dolphin). These species are generally considered unlikely to
occur in the survey area but the take request is made on the basis of
recent detections (acoustic and/or visual) of these species in the
survey area (see Estimated Take section for more details). In total,
Vineyard Northeast has requested take of 19 species (with 20 managed
stocks). In addition to what is included in Sections 3 and 4 of the
application, the SARS, and NMFS' website, further detail informing the
baseline for select species (i.e., information regarding status and
distribution) was provided in the notice of the proposed IHA (87 FR
30872; May 20, 2022) and is not repeated here. No new information other
than that discussed above is available since publication of that
notice.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in Table 3.
Table 3--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz
(dolphins, toothed whales, beaked
whales, bottlenose whales).
[[Page 52923]]
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).
------------------------------------------------------------------------
* 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, 2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
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 30872; May 20, 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 30872; May 20, 2022) for that
information.
Estimated Take
This section provides the process by which the estimated takes were
devised and the number of incidental takes NMFS authorized in the IHA,
which informs 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 noise from certain HRG acoustic sources.
Based primarily on the characteristics of the signals produced by the
acoustic sources planned for use, Level A harassment is neither
anticipated (even absent mitigation), nor authorized. Consideration of
the anticipated effectiveness of the mitigation measures (i.e., pre-
start clearance and shutdown measures), discussed in detail below in
the Mitigation section, further strengthens the conclusion that Level A
harassment is not a reasonably expected outcome of the survey activity.
As previously described, no serious injury or mortality is anticipated
or authorized for this activity. Below we describe how take is
estimated.
Generally speaking, we estimate take by considering: (1) acoustic
thresholds above which NMFS believes the best available science
indicates marine mammals will be behaviorally harassed or incur some
degree of permanent hearing impairment; (2) the area or volume of water
that will be ensonified above these levels in a day; (3) the density or
occurrence of marine mammals within these ensonified areas; and, (4)
and the number of days of activities. We note that while these basic
factors can contribute to a basic calculation to provide an initial
prediction of takes, additional information that can qualitatively
inform take estimates is also sometimes available (e.g., previous
monitoring results or average group size). Below, we describe the
factors considered here in more detail and present the take estimates.
Acoustic Thresholds
NMFS uses acoustic thresholds that identify the received level of
underwater sound above which exposed marine mammals would be reasonably
expected to be behaviorally harassed (equated to Level B harassment) or
to incur PTS of some degree (equated to Level A harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source (e.g., frequency, predictability, duty cycle), the environment
(e.g., bathymetry), and the receiving animals (hearing, motivation,
experience, demography, behavioral context) and can be difficult to
predict (Southall et al., 2007, Ellison et al., 2012). Based on what
the available science indicates and the practical need to use a
threshold based on a factor that is both predictable and measurable for
most activities, NMFS uses a generalized acoustic threshold based on
received level to estimate the onset of behavioral harassment. NMFS
predicts that marine mammals may be behaviorally harassed (i.e., Level
B harassment) when exposed to underwater anthropogenic noise above
received levels of 160 dB re 1 [mu]Pa (rms) for impulsive sources
(i.e., boomers, sparkers) and non-impulsive, intermittent sources
(e.g., CHIRP SBPs) evaluated here for Vineyard Northeast's proposed
activity.
Level A harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive). For more
information, see NMFS' 2018 Technical Guidance, which may be accessed
at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
Vineyard Northeast's proposed activity includes the use of
impulsive (i.e., boomers and sparkers) and non-impulsive (e.g., CHIRP
SBPs) sources. However, as discussed above, NMFS has concluded that
Level A harassment is
[[Page 52924]]
not a reasonably likely outcome for marine mammals exposed to noise
from the sources proposed for use here, and the potential for Level A
harassment is not evaluated further in this document. Please see
Vineyard Northeast's application for details of a quantitative exposure
analysis (i.e., calculated distances to Level A harassment isopleths
and Level A harassment exposures). Vineyard Northeast did not request
authorization of take by Level A harassment and no take by Level A
harassment is authorized.
Ensonified Area
NMFS has developed a user-friendly methodology for estimating the
extent of the Level B harassment isopleths associated with relevant HRG
survey equipment (NMFS, 2020). This methodology incorporates frequency
and directionality to refine estimated ensonified zones. For acoustic
sources that operate with different beamwidths, the maximum beamwidth
was used, and the lowest frequency of the source was used when
calculating the frequency-dependent absorption coefficient (Table 1).
Results of modeling using the methodology described above indicated
that, of the HRG survey equipment planned for use by Vineyard Northeast
that has the potential to result in Level B harassment of marine
mammals, the Applied Acoustics AA251 Boomer would produce the largest
distance to the Level B harassment isopleth (178 m). Estimated
distances to the Level B harassment isopleth for all source types
evaluated here, including the boomer, are provided in Table 4. Although
Vineyard Northeast does not expect to use the AA251 Boomer source on
all planned survey days, it proposes to assume, for purposes of
analysis, that the boomer sources would be used on all survey days and
across all hours within a given survey day. This is a conservative
approach, as the actual sources used on individual survey days, or
during a portion of a survey day, may produce smaller distances to the
Level B harassment isopleth.
Table 4--Distances to Level B Harassment Isopleth
------------------------------------------------------------------------
Distance to
Level B
Equipment harassment
isopleth (m)
------------------------------------------------------------------------
Edge Tech Chirp 216..................................... 4
GeoMarine Geo Spark 2000 (400 tip)...................... 141
Applied Acoustics AA 251 Boomer......................... 178
------------------------------------------------------------------------
Marine Mammal Occurrence
In this section, we provide the information about presence,
density, or group dynamics of marine mammals that will inform the take
calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al., 2016, 2017, 2018, 2021)
represent the best available information regarding marine mammal
densities in the survey area. The density data presented by Roberts et
al. (2016, 2017, 2018, 2021) incorporates aerial and shipboard line-
transect survey data from NMFS and other organizations and incorporates
data from 8 physiographic and 16 dynamic oceanographic and biological
covariates, and controls for the influence of sea state, group size,
availability bias, and perception bias on the probability of making a
sighting. These density models were originally developed for all
cetacean taxa in the U.S. Atlantic (Roberts et al., 2016). In
subsequent years, certain models have been updated based on additional
data as well as certain methodological improvements. More information
is available online at: seamap.env.duke .edu/models/Duke-EC/.
Density estimates for all marine mammal species within the survey
area were obtained using the most recent model results by Roberts et
al. (2016; 2017; 2018; 2021). Those data provide density estimates for
a species or guild within 10 km x 10 km grid cells (100 km\2\) or, in
the case of NARW densities, within 5 km x 5 km grid cells (25 km\2\),
on a monthly or annual basis, depending on the species. Using a GIS
(ESRI 2017), both the survey area polygon and the NARW Cape Cod Bay SMA
polygon (see Figure 1 in the notice of the proposed IHA (87 FR 30872;
May 20, 2022)) were used to select grid cells from the Roberts et al.
(2016; 2017; 2018; 2021) data that contain the most recent monthly or
annual estimates for each species for the months of May through
December. For the months of January through April, only the survey area
polygon was used to select density grid cells since it excludes waters
within Cape Cod Bay, where no surveys will occur while the Cape Cod Bay
SMA is active from January 1 through May 15. The average monthly
abundance for each species was calculated as the mean value of all grid
cells within the survey area and then converted to density
(individuals/1 km\2\) by dividing by 100 km\2\. Finally, an average
annual density was calculated by taking the mean across all 12 months
for each species. See Table 8 in Vineyard Northeast's IHA application
for all density information. When determining requested take numbers,
Vineyard Northeast also considered average group sizes based on PSO
sighting reports from previous surveys in the region.
Take Calculation and Estimation
Here we describe how the information provided above is brought
together to produce a quantitative take estimate. In order to estimate
the number of marine mammals predicted to be exposed to sound levels
that would result in harassment, radial distances to predicted
isopleths corresponding to harassment thresholds are calculated, as
described above. The maximum distance (i.e., 178 m distance associated
with boomers) to the Level B harassment criterion and the estimated
trackline distance traveled per day by a given survey vessel (i.e., 80
km) are then used to calculate the daily ensonified area, or zone of
influence (ZOI) around the survey vessel.
The ZOI is a representation of the maximum extent of the ensonified
area around a HRG sound source over a 24-hr period. The ZOI for each
piece of equipment operating at or below 180 kHz was calculated per the
following formula:
ZOI = (Distance/day x 2r) + [pi]r\2\
Where r is the linear distance from the source to the harassment
isopleth.
The largest daily ZOI (28.6 km\2\), associated with the proposed
use of boomers, was applied to all planned survey days.
Potential Level B density-based harassment exposures are estimated
by multiplying the average annual density of each species within the
survey area by the daily ZOI. That product is then multiplied by the
number of planned survey days (869), and the product is rounded to the
nearest whole number. These results are shown in Table 5.
For other less common species, the predicted densities from Roberts
et al. (2016; 2017; 2018; 2021) are very low and the resulting density-
based estimate is less than a single animal or a typical group size for
the species. In such cases, the density-based exposure estimate is
increased to the mean group size for the species to account for a
chance
[[Page 52925]]
encounter during an activity. Mean group sizes for each species were
calculated from recent aerial and/or vessel-based surveys (Kraus et
al., 2016; Palka et al., 2017) as shown in Table 5 (below) and Table 10
of the IHA application.
The larger of the two estimates from the approaches described
above, density-based exposure estimates or mean group size, was
selected as the amount of authorized take as shown in Table 5. However,
based on observational data collected during prior HRG surveys in this
area, the density of common dolphins predicted by the Roberts et al.
(2018) model does not appear to adequately reflect the number of common
dolphins that may be encountered during the planned surveys. Data
collected by PSOs on survey vessels operating in 2020-2021 showed that
an average of approximately 16 common dolphins may be observed within
200 m of a vessel (the approximate Level B harassment isopleth
distance) per survey day (Vineyard-Wind 2021). Multiplying the
anticipated 869 survey days by 16 common dolphins per day results in an
estimated take of 13,904 common dolphins, the amount of authorized take
of common dolphins shown in Table 5.
The estimated monthly density of seals provided in Roberts et al.
(2018) includes all seal species present in the region as a single
guild. To split the resulting ``seal'' density-based exposure estimate
by species, Vineyard Northeast multiplied the estimate by the
proportion of the combined abundance attributable to each species.
Specifically, Vineyard Northeast summed the SAR N<INF>best</INF>
abundance estimates (Hayes et al. 2021) for the two species (gray seal
= 27,300, harbor seal = 61,336; total = 88,636) and divided the total
by the estimate for each species to get the proportion of the total for
each species (gray seal = 0.308; harbor seal = 0.692). The total
estimated exposure from the ``seal'' density provide by Roberts et al.
(2018) was then multiplied by these proportions to get the species-
specific density-based exposure estimates.
Bottlenose dolphins encountered in most of the survey area would
belong to the Western North Atlantic Offshore stock. However,
approximately 21 percent of the survey area is located south of New
York Harbor where members of the North Atlantic Northern Migratory
Coastal stock may be present. Therefore, NMFS assumes that 21 percent
(151 individuals) of the authorized bottlenose dolphin take would be
from the North Atlantic Northern Migratory Coastal stock while the
remaining 79 percent (569 individuals) would likely be from the Western
North Atlantic Offshore stock.
Similarly, the distributions of short- and long-finned pilot whales
are described in Hayes et al. (2020, 2021) as likely overlapping in the
southern portion of the survey area off New Jersey. However, a review
of sightings data available on the Ocean Biodiversity Information
System (OBIS) data portal (<a href="http://seamap.env.duke.edu">http://seamap.env.duke.edu</a>) that were
positively identified to either species showed only long-finned pilot
whale sightings occurring in the survey area, while the vast majority
of short-finned pilot whale sightings occurred well to the south of the
survey area. For that reason, all authorized pilot whale take is of
long-finned pilot whales.
Species considered to be rare or not expected to occur in the
survey area were not included in Vineyard Northeast's previous density-
based exposure estimates because the densities would be too low to
provide meaningful results. Nonetheless, species considered to be rare
are occasionally encountered. For example, white-beaked dolphins were
observed in both 2019 and 2020 during marine site characterization
surveys in the survey area (Vineyard Wind 2019, 2020), with the
sighting of white-beaked dolphins in 2019 consisting of 30 animals.
Other rare species encountered in the survey area during previous
surveys include the false killer whale in 2019 (five individuals) and
2021 (one individual) (Vineyard Wind 2019, 2021), and killer whale in
2022 (two individuals; data not yet submitted). Vineyard Northeast is
requesting take of each of these three species, based on the largest
number of individuals observed within 1 year (Table 5).
Finally, recent deployments of passive acoustic devices in the New
York Bight yielded detections of blue whale vocalizations approximately
20 nautical miles (nm) (37 km) southeast of the entrance to New York
Harbor during the months of January, February, and March (Muirhead et
al. 2018); blue whale vocalizations have also been recorded off the
coast of Rhode Island during acoustic surveys (Kraus et al. 2016). More
recently, during 3 years of monthly aerial surveys in the New York
Bight (2017-2020), Zoidis et al. (2021) reported 3 sightings of blue
whales, totaling 5 individuals. Although sightings of blue whales in
the survey area are rare, in light of these recent observations of blue
whales, Vineyard Northeast requested, and NMFS has authorized, take of
one blue whale based on the average group size (Palka et al., 2017)
(Table 5).
Table 5--Summary of Authorized Take
----------------------------------------------------------------------------------------------------------------
Authorized
Density- based Mean group Take by Level take as
Species exposure size \1\ B harassment Abundance percent of
estimate requested stock
----------------------------------------------------------------------------------------------------------------
Blue whale \2\.................. 0.2 1.0 1 402 0.2
Fin whale....................... 76.7 1.8 77 6,802 1.1
Humpback whale.................. 46.2 2.0 47 1,396 3.4
Minke whale..................... 41.2 1.2 42 21,968 0.2
North Atlantic right whale...... 39.4 2.4 40 368 10.9
Sei whale....................... 4.8 1.6 5 6,292 0.1
Sperm whale..................... 11.9 1.5 12 4,349 0.3
Killer whale \2\................ .............. .............. 2 Unk 0.0
False killer whale \2\.......... .............. .............. 5 1,791 0.3
Atlantic spotted dolphin........ 19.3 29.0 29 39,921 0.1
Atlantic white-sided dolphin.... 1,123.3 27.9 1,124 92,233 1.2
Bottlenose dolphin (Western 720 7.8 569 62,851 0.9
North Atlantic offshore stock).
Bottlenose dolphin (Western .............. .............. 151 6,639 2.3
North Atlantic northern
migratory coastal stock).......
Common dolphin.................. 1,159.3 34.9 13,904 172,974 8.0
Long-finned pilot whale......... 404.8 8.4 405 39,215 1.0
[[Page 52926]]
White-beaked dolphin \2\........ .............. .............. 30 536,016 0.0
Risso's dolphin................. 100.1 5.4 101 35,215 0.3
Harbor porpoise................. 2,032.4 2.7 2,033 95,543 2.1
Gray seal....................... 417.8 0.4 418 27,300 1.5
Harbor seal..................... 938.7 1.0 939 61,336 1.5
----------------------------------------------------------------------------------------------------------------
\1\ Mean group size based on Kraus et al., 2016 (fin, humpback, minke, North Atlantic right, sei, and pilot
whales; Atlantic white-sided, bottlenose, and common dolphins; harbor porpoise) or Palka et al., 2017 (blue
and sperm whales; Atlantic spotted and Risso's dolphin; harbor and gray seals).
\2\ Rare (or unlikely to occur) species.
Table 5 provides the total amount of take authorized in the IHA.
Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
impact upon the affected species or stocks and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, as well as subsistence uses where applicable, we
carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
Mitigation for Marine Mammals and Their Habitat
The following mitigation measures must be implemented during
Vineyard Northeast's planned marine site characterization surveys.
Pre-Start Clearance
Marine mammal clearance zones (CZs) must be established around the
HRG survey equipment:
<bullet> 500-m SZ for NARWs; and
<bullet> 100-m SZ for all other marine mammal species.
Vineyard Northeast must implement a 30-minute monitoring period of
the CZs prior to initiation of ramp-up of HRG equipment. During this
period, CZs will be monitored by PSOs, using the appropriate visual
technology.
Ramp-Up
Where technically feasible (e.g., equipment is not on a binary on/
off switch), a ramp-up procedure will be used for HRG survey equipment
capable of adjustment of energy levels at the start or restart of
survey activities. This procedure will be used at the beginning of HRG
survey activities 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. 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
sources, when technically feasible. Operators must ramp up sources to
half power for five 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 used if ramp up is not technically
feasible). If a marine mammal is observed within its CZ during the pre-
start clearance period, ramp-up may not begin until the animal(s) has
been observed exiting its respective CZ or until an additional time has
elapsed with no further sighting (i.e., 15 minutes for small dolphins
and seals, and 30 minutes for all other marine mammal species). In
addition, activation of survey equipment through ramp-up procedures is
not permitted when visual observation of the pre-start clearance/
shutdown zone is not expected to be effective using the appropriate
visual technology (i.e., during inclement conditions such as heavy rain
or fog).
Shutdown Procedures
Marine mammal shutdown zones (SZs) must established around the HRG
survey equipment:
<bullet> 500-m SZ for NARWs; and
<bullet> 100-m SZ for all other marine mammal species.
The vessel operator must comply immediately with any call for
shutdown by a PSO. Any disagreement between the PSO and vessel operator
should be discussed only after shutdown has occurred. Subsequent
restart of the survey equipment can be initiated if the animal has been
observed exiting its respective SZ or the relevant time has elapsed
without redetection (i.e., 15 minutes for harbor porpoise, 30 minutes
for all other species).
The shutdown requirement is waived for pinnipeds and for small
delphinids of the following genera: Delphinus, Lagenorhynchus, Stenella
(frontalis only), and Tursiops. If there is uncertainty regarding
identification of a marine mammal species (i.e., whether the observed
marine mammal(s) belongs to one of the delphinid genera for which
shutdown is waived), PSOs must use best professional judgement in
making the decision to call for a shutdown. Additionally, shutdown is
required if a delphinid or pinniped detected in the shutdown zone and
belongs to a genus other than those specified.
If the acoustic source is shut down for reasons other than
mitigation (e.g.,
[[Page 52927]]
mechanical difficulty) for less than 30 minutes, it may be activated
again without ramp-up only if PSOs have maintained constant observation
and the SZs are clear of marine mammals. If the acoustic source is
turned off for more than 30 minutes, it may only be restarted after
PSOs have cleared the SZs for 30 minutes. 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 (178 m), shutdown is required. Shutdown, pre-start
clearance, and ramp-up procedures are not required during HRG survey
operations using only non-impulsive sources (e.g., echosounders), other
than non-parametric sub-bottom profilers (e.g., CHIRP SBPs).
Vessel Strike Avoidance
Vineyard Northeast must ensure that vessel operators and crew
maintain a vigilant watch for marine mammals and slow down or stop
their vessels to avoid striking these species. All personnel
responsible for navigation and marine mammal observation duties will
receive site-specific training on marine mammals sighting/reporting and
vessel strike avoidance measures. Vessel strike avoidance measures
include the following, except under circumstances when complying with
these requirements would put the safety of the vessel or crew at risk:
<bullet> Vessel operators and crews must maintain a 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 mammal. A visual observer aboard the vessel must monitor a
vessel strike avoidance zone based on the appropriate separation
distance around the vessel (distances stated below). Visual observers
monitoring the vessel strike avoidance zone may be third-party
observers (i.e., PSOs) or crew members, but crew members responsible
for these duties must be provided sufficient training to (1)
distinguish protected species from other phenomena and (2) broadly to
identify a marine mammal as a NARW, other whale (defined in this
context as sperm whales or baleen whales other than NARWs), or other
marine mammal.
<bullet> Members of the monitoring team will consult NMFS North
Atlantic right whale reporting system and Whale Alert at the start of
every PSO shift, for situational awareness regarding the presence of
NARWs throughout the survey area, and for the establishment of Slow
Zones (including visual-detection-triggered dynamic management areas
(DMAs) and acoustically-triggered slow zones) within or near the survey
area.
<bullet> All survey vessels, regardless of size, must observe a 10-
kn (2.1 m/s) speed restriction in specific areas designated by NMFS for
the protection of NARW from vessel strikes, including SMAs and DMAs,
when in effect;
<bullet> Vessel speeds must be reduced to 10 kn (5.1 m/s) or less
when mother/calf pairs, pods, or large assemblages of cetaceans are
observed near a vessel;
<bullet> All vessels must maintain a minimum separation distance of
500-m from NARWs and other ESA-listed species. If an ESA-listed species
is sighted within the relevant separation distance, the vessel must
steer a course away at 10 kn (5.1 m/s) or less until the 500-m
separation distance has been established. If a whale is observed but
cannot be confirmed as a species that is not ESA-listed, the vessel
operator must assume that it is an ESA-listed species and take
appropriate action.
<bullet> All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 100-m from all
non-ESA listed whales,
<bullet> All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50-m from all
other marine mammals, with an understanding that at times this may not
be possible (e.g., for animals that approach the vessel).
<bullet> When marine mammals are sighted while a vessel is
underway, the vessel must take action as necessary to avoid violating
the relevant separation distance (e.g., attempt to remain parallel to
the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area). If marine mammals are
sighted within the relevant separation distance, the vessel must reduce
speed and shift the engine to neutral, not engaging the engines until
animals are clear of the area. This does not apply to any vessel towing
gear or any vessel that is navigationally constrained.
Seasonal Restrictions
Survey activities using HRG equipment operating at or below 180 kHz
are prohibited from January 1 through May 15 within the NARW SMA in
Cape Cod Bay.
Crew Training
Project-specific training will be conducted for all vessel crew
prior to the start of a survey and during any changes in crew such that
all survey personnel are fully aware and understand the mitigation,
monitoring, and reporting requirements. Prior to implementation with
vessel crews, the training program will be provided to NMFS for review
and approval. Confirmation of the training and understanding of the
requirements will be documented on a training course log sheet. Signing
the log sheet will certify that the crew member understands and will
comply with the necessary requirements throughout the survey
activities. In addition to the aforementioned measures, Kitty Hawk will
abide by all marine mammal relevant conditions in the Greater Atlantic
Regional Office's (GARFO) informal programmatic consultation, dated
June 29, 2021 (revised September 2021), pursuant to section 7 of the
ESA. These include the relevant best management practices of project
design criteria (PDCs) 4, 5, and 7.
Based on our evaluation of the measures contained in the IHA, NMFS
has determined that the mitigation measures provide the means of
effecting the least practicable impact on marine mammal species or
stocks and their habitat, paying particular attention to rookeries,
mating grounds, and areas of similar significance.
Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104 (a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present in the
proposed action area. Effective reporting is critical to both
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
[[Page 52928]]
history, dive patterns); (3) co-occurrence of marine mammal species
with the action; or (4) biological or behavioral context of exposure
(e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and
<bullet> Mitigation and monitoring effectiveness.
Monitoring Measures
Visual monitoring will be performed by qualified, NMFS-approved
PSOs, the resumes of whom will be provided to NMFS for review and
approval prior to the start of survey activities. Vineyard Northeast
must employ independent, dedicated, trained PSOs, meaning that the PSOs
must (1) be employed by a third-party observer provider, (2) have no
tasks other than to conduct observational effort, collect data, and
communicate with and instruct relevant vessel crew with regard to the
presence of marine mammals and mitigation requirements (including brief
alerts regarding maritime hazards), and (3) have successfully completed
an approved PSO training course appropriate for their designated task.
As described previously, on a case-by-case basis, non-independent
observers may be approved by NMFS for limited, specific duties (i.e.,
stand watch while an independent NMFS-approved PSO takes the required
2-hour break between 4-hour shifts) on the smaller (~50 ft or 15 m),
nearshore survey vessel that can only accommodate the captain, a 4-
member survey team, an independent PSO, and a project overseer. During
these 12-hr daylight-only surveys, the project overseer will serve as
the non-independent observer; they must receive training in protected
species detection and identification, vessel strike minimization
procedures, and the reporting requirements in this IHA, and must have
no other duties other than marine mammal monitoring while on watch.
Finally, should the non-independent observer observe a whale that
cannot be confirmed to species, they must assume that it is a right
whale and take the appropriate action (i.e., call for a delay or
shutdown). Section 5 of the IHA contains further details regarding PSO
approval.
The PSOs will be responsible for monitoring the waters surrounding
each survey vessel to the farthest extent permitted by sighting
conditions, including shutdown zones, during all HRG survey operations.
PSOs will visually monitor and identify marine mammals, including those
approaching or entering the established shutdown zones during survey
activities. It will be the responsibility of the Lead PSO on duty to
communicate the presence of marine mammals to the vessel operator as
well as to communicate the action(s) that are necessary to ensure
mitigation and monitoring requirements are implemented as appropriate.
During all HRG survey operations (e.g., any day on which use of a
specified HRG source is planned to occur), a minimum of one PSO must be
on duty during daylight operations on each survey vessel, conducting
visual observations at all times on all active survey vessels during
daylight hours (i.e., from 30 minutes prior to sunrise through 30
minutes following sunset). Two PSOs will be on watch during nighttime
operations. The PSO(s) would ensure 360[deg] visual coverage around the
vessel from the most appropriate observation posts and would conduct
visual observations using binoculars and/or night vision goggles and
the naked eye while free from distractions and in a consistent,
systematic, and diligent manner. PSOs may be on watch for a maximum of
4 consecutive hours followed by a break of at least 2 hours between
watches and may conduct a maximum of 12 hours of observation per 24-hr
period. In cases where multiple vessels are surveying concurrently, any
observations of marine mammals 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 shutdown 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 would be used. Position data would 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 would 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 would be relayed
to the PSO team.
Data on all PSO observations would be recorded based on standard
PSO collection requirements. This would include dates, times, and
locations of survey operations; dates and times of observations,
location and weather; details of marine mammal sightings (e.g.,
species, numbers, behavior); and details of any observed marine mammal
behavior that occurs (e.g., noted behavioral disturbances).
Reporting Measures
Within 90 days after completion of survey activities or expiration
of this IHA, whichever comes sooner, a final technical report will be
provided to NMFS that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring, summarizes
the number of marine mammals observed during survey activities (by
species, when known), summarizes the mitigation actions taken during
surveys (including what type of mitigation and the species and number
of animals that prompted the mitigation action, when known), and
provides an interpretation of the results and effectiveness of all
mitigation and monitoring. A final report must be submitted within 30
days following resolution of any comments on the draft report. All
draft and final marine mammal monitoring reports must be submitted to
<a href="/cdn-cgi/l/email-protection#08585a26415c5826456766617c677a61666f5a6d78677a7c7b4866676969266f677e"><span class="__cf_email__" data-cfemail="48181a66011c1866052726213c273a21262f1a2d38273a3c3b0826272929662f273e">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#cea0a3a8bde0a9afbce0a7a0ada7aaaba0baafa2e3baafa5ab8ea0a1afafe0a9a1b8"><span class="__cf_email__" data-cfemail="4f2122293c61282e3d6126212c262b2a213b2e23623b2e242a0f21202e2e61282039">[email protected]</span></a>,
and <a href="/cdn-cgi/l/email-protection#dc95888cf299afbfb49cb2b3bdbdf2bbb3aa"><span class="__cf_email__" data-cfemail="d9908d89f79caabab199b7b6b8b8f7beb6af">[email protected]</span></a>. The report must contain at minimum, the
following:
<bullet> PSO names and affiliations;
<bullet> Dates of departures and returns to port with port name;
<bullet> Dates and times (Greenwich Mean Time) of survey effort and
times corresponding with PSO effort;
<bullet> Vessel location (latitude/longitude) when survey effort
begins and ends; vessel location at beginning and end of visual PSO
duty shifts;
<bullet> Vessel heading and speed at beginning and end of visual
PSO duty shifts and upon any line change;
<bullet> Environmental conditions while on visual survey (at
beginning and end of PSO shift and whenever conditions change
significantly), including wind speed and direction, Beaufort sea state,
Beaufort wind force, swell height, weather conditions, cloud cover, sun
glare, and overall visibility to the horizon;
[[Page 52929]]
<bullet> Factors that may be contributing to impaired observations
during each PSO shift change or as needed as environmental conditions
change (e.g., vessel traffic, equipment malfunctions); and
<bullet> Survey activity information, such as type of survey
equipment in operation, acoustic source power output while in
operation, and any other notes of significance (i.e., pre-start
clearance survey, ramp-up, shutdown, end of operations, etc.).
If a marine mammal is sighted, the following information should be
recorded:
<bullet> Watch status (sighting made by PSO on/off effort,
opportunistic, crew, alternate vessel/platform);
<bullet> PSO who sighted the animal;
<bullet> Time of sighting;
<bullet> Vessel location at time of sighting;
<bullet> Water depth;
<bullet> Direction of vessel's travel (compass direction);
<bullet> Direction of animal's travel relative to the vessel;
<bullet> Pace of the animal;
<bullet> Estimated distance to the animal and its heading relative
to vessel at initial sighting;
<bullet> Identification of the animal (e.g., genus/species, lowest
possible taxonomic level, or unidentified); also note the composition
of the group if there is a mix of species;
<bullet> Estimated number of animals (high/low/best);
<bullet> Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
<bullet> Description (as many distinguishing features as possible
of each individual seen, including length, shape, color, pattern, scars
or markings, shape and size of dorsal fin, shape of head, and blow
characteristics);
<bullet> Detailed behavior observations (e.g., number of blows,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior);
<bullet> Animal's closest point of approach and/or closest distance
from the center point of the acoustic source;
<bullet> Platform activity at time of sighting (e.g., deploying,
recovering, testing, data acquisition, other); and
<bullet> Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up, speed or course alteration,
etc.) and time and location of the action.
If a NARW is observed at any time by PSOs or personnel on any
survey vessels, during surveys or during vessel transit, Vineyard
Northeast must immediately report sighting information to the NMFS
North Atlantic Right Whale Sighting Advisory System (866) 755-6622.
NARW sightings in any location may also be reported to the U.S. Coast
Guard via channel 16.
In the event that Vineyard Northeast personnel discover an injured
or dead marine mammal, Vineyard Northeast must report the incident as
soon as feasible to the NMFS Office of Protected Resources (OPR) and
the NMFS New England/Mid-Atlantic Stranding Network by phone (866-755-
6622) and by email (<a href="/cdn-cgi/l/email-protection#c7a9aaa1b4e9a0a6b5e9b4b3b5a6a9a3aea9a087a9a8a6a6e9a0a8b1"><span class="__cf_email__" data-cfemail="4927242f3a672e283b673a3d3b28272d20272e0927262828672e263f">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#4e1e1c60071a1e60032120273a213c2720291c2b3e213c3a3d0e20212f2f60292138"><span class="__cf_email__" data-cfemail="58080a76110c0876153736312c372a31363f0a3d28372a2c2b1836373939763f372e">[email protected]</span></a>). 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);
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, Vineyard
Northeast must report the incident to NMFS OPR and the NMFS Office of
Protected Resources and the NMFS New England/Mid-Atlantic Stranding
Network by phone (866-755-6622) and by email
(<a href="/cdn-cgi/l/email-protection#7a14171c09541d1b0854090e081b141e13141d3a14151b1b541d150c"><span class="__cf_email__" data-cfemail="1c72717a6f327b7d6e326f686e7d727875727b5c72737d7d327b736a">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#cd9d9fe384999de380a2a3a4b9a2bfa4a3aa9fa8bda2bfb9be8da3a2acace3aaa2bb"><span class="__cf_email__" data-cfemail="2e7e7c00677a7e00634140475a415c4740497c4b5e415c5a5d6e40414f4f00494158">[email protected]</span></a>) as
soon as feasible but within 24 hours. The report must include the
following information:
<bullet> Time, date, and location (latitude/longitude) of the
incident;
<bullet> Species identification (if known) or description of the
animal(s) involved;
<bullet> Vessel's speed during and leading up to the incident;
<bullet> Vessel's course/heading and what operations were being
conducted (if applicable);
<bullet> Status of all sound sources in use;
<bullet> Description of avoidance measures/requirements that were
in place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
<bullet> Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
<bullet> Estimated size and length of animal that was struck;
<bullet> Description of the behavior of the marine mammal
immediately preceding and following the strike;
<bullet> If available, description of the presence and behavior of
any other marine mammals immediately preceding the strike;
<bullet> Estimated fate of the animal (e.g., dead, injured but
alive, injured and moving, blood or tissue observed in the water,
status unknown, disappeared); and
<bullet> To the extent practicable, photographs or video footage of
the animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any responses (e.g., intensity, duration), the context
of any responses (e.g., critical reproductive time or location,
migration), as well as effects on habitat, and the likely effectiveness
of the mitigation. We also assess the number, intensity, and context of
estimated takes by evaluating this information relative to population
status. Consistent with the 1989 preamble for NMFS' implementing
regulations (54 FR 40338; September 29, 1989), the impacts from other
past and ongoing anthropogenic activities are incorporated into this
analysis via their impacts on the environmental baseline (e.g., as
reflected in the regulatory status of the species, population size and
growth rate where known, ongoing sources of human-caused mortality, or
ambient noise levels).
To avoid repetition, the majority of our analysis applies to the
species listed in Table 5, given that many of the anticipated effects
of the survey to be similar in nature. Where there are meaningful
differences between species or stocks, or groups of species, in
anticipated individual responses to activities, impact of the
authorized take on the population due to differences in population
status, or impacts on habitat, they are included in a separate
subsection. NMFS does not anticipate that mortality, serious injury, or
injury
[[Page 52930]]
would occur for any species as a result from HRG surveys, even in the
absence of mitigation, and no serious injury or mortality is
authorized.
As discussed in the Potential Effects of Specified Activities on
Marine Mammals and their Habitat section above, non-auditory physical
effects and vessel strike are not expected to occur. NMFS expects that
all potential takes would be in the form of short-term Level B
behavioral harassment in the form of temporary avoidance of the area or
decreased foraging (if such activity was occurring), reactions that are
considered to be of low severity and with no lasting biological
consequences (e.g., Southall et al., 2007). As described above, Level A
harassment is not expected to occur given the nature of the operations,
the estimated size of the Level A harassment zones, and the required
shutdown zones for certain activities.
In addition to being temporary, the maximum harassment zone around
a survey vessel is 178 m from use of the Applied Acoustics AA251
Boomer. When estimating Level B harassment take numbers, Vineyard
Northeast made the conservative assumption that this maximum zone size
applied to all 869 survey days when, in reality, the Applied Acoustics
AA251 Boomer will not be used throughout the entire 24 hours of every
survey day. The other acoustic sources with the potential to result in
take of marine mammals are expected to produce harassment zones with
even smaller radii (141 m, Edge Tech CHIRP 216; 4 m, GeoMarine Geo
Spark 2000). The ensonified area surrounding each acoustic source is
relatively small compared to the overall distribution of the animals in
the area and their use of the habitat.
In addition, feeding behavior is not likely to be significantly
impacted as prey species are mobile and are broadly distributed
throughout the survey area; therefore, marine mammals that may be
temporarily displaced during survey activities are expected to be able
to resume foraging once they have moved away from areas with disturbing
levels of underwater noise. Because of the temporary nature of the
disturbance and the availability of similar habitat and resources in
the surrounding area, the impacts to marine mammals and the food
sources that they utilize are not expected to cause significant or
long-term consequences for individual marine mammals or their
populations. There are no rookeries, mating or calving grounds known to
be biologically important to marine mammals within the survey area.
North Atlantic Right Whales
The status of the NARW population is of heightened concern and,
therefore, merits additional analysis. As described in the Federal
Register notice of the proposed IHA (87 FR 30872; May 20, 2022),
elevated NARW mortalities began in June 2017 and there is currently an
active UME. Overall, preliminary findings support human interactions,
specifically vessel strikes and entanglements, as the cause of death
for the majority of NARWs.
The survey area partially overlaps with the migratory corridor BIA
(Figure 2.5 in LaBrecque et al., 2015) and migratory route SMA for
NARWs, which extends from Massachusetts to Florida, and from the coast
to beyond the shelf break. That the spatial extent of the sound
produced by the survey would be very small relative to the spatial
extent of the available migratory habitat in the BIA supports the
expectation that NARW migration will not be impacted by the survey.
The northernmost and northeastern portions of the survey area
overlap with the Cape Cod Bay (January 1-May 15), Off Race Point (March
1-April 30), and Great South Channel (April 1-July 31) SMAs. There is
also a partial overlap between the eastern edge of survey area and the
western-most portion of the Great South Channel feeding BIA (April 1 to
June 30) and a feeding BIA within and north of Cape Cod Bay (February 1
to April 30) (Figure 2.5 in LaBrecque et al., 2015). The seasonal
restriction on survey activities in Cape Cod Bay (which is also part of
a feeding BIA (February 1-April 30) and ESA-designated critical
foraging habitat for NARWs) when the SMA is active minimizes potential
impacts on the species' foraging when densities of NARWs and their prey
are expected to be highest in that section of the survey area. The
seasonal restriction also minimizes the likelihood that survey
activities would occur during the period when the Off Race Point SMA is
effective, which overlaps in time with and is in close proximity to the
Cape Cod Bay SMA.
The slow survey speed (approximately 4 kn (2.1 m/s)) and required
vessel strike avoidance measures will decrease the risk of ship strike
such that no ship strike is expected to occur during Vineyard
Northeast's survey activities. Additionally, although take by Level B
harassment of NARWs has been authorized by NMFS, we anticipate a very
low level of harassment, should it occur, because Vineyard Northeast is
required to maintain a shutdown zone of 500 m if a NARW is observed.
The authorized take accounts for any missed animals wherein the survey
equipment is not shutdown immediately. Because shutdown would be called
for immediately upon detection (if the whale is within 500 m), it is
likely the exposure time would be very limited and received levels
would not be much above the harassment threshold. Further, the 500-m
shutdown zone for right whales is conservative, considering the
distance to the Level B harassment isopleth for the most impactful
acoustic source (i.e., Applied Acoustics AA251 Boomer--which may not be
used on all survey days) is estimated to be 178 m, and thereby
minimizes the potential for behavioral harassment of this species.
Last, the authorized take of 40 represents instances of takes, and
while it is possible that one individual could incur more than one of
those 40 takes (i.e., on multiple days), given the mobile nature of the
surveys and the whales, there is no reason to think that any individual
whale would accrue more than 2 or 3 within the year. The small
magnitude and severity of take by Level B harassment is not expected to
impact the reproduction or survival and any individuals.
As noted previously, Level A harassment is not expected due to the
characteristics of the signals produced by the acoustic sources planned
for use; this finding is further enforced by the mitigation measures.
NMFS does not anticipate NARW takes that would result from Vineyard
Northeast's activities would 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
There are several active UMEs occurring in the vicinity of Vineyard
Northeast'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
[[Page 52931]]
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, and the
total numbers of stranded individuals (123) from 2017-2022 is below the
Potential Biological Removal for the species (170). The status of
common minke whales relative to Optimal Sustainable Yield (OSP) in the
U.S. Atlantic EEZ is unknown. Common minke whales are not listed as
threatened or endangered under the Endangered Species Act, and the
Canadian East Coast stock is not considered strategic under the Marine
Mammal Protection Act. It is expected that the uncertainties described
above will have little effect on the designation of the status of the
entire stock.
The required mitigation measures are expected to reduce the number
and/or severity of the authorized takes for all species listed in Table
5, including those with active UMEs, to the level of least practicable
adverse impact. In particular, ramp-up procedures would provide animals
in the vicinity of the survey vessel the opportunity to move away from
the sound source before HRG survey equipment reaches full energy, thus
preventing them from being exposed to sound levels that have the
potential to cause injury (Level A harassment) or more severe Level B
harassment. No Level A harassment is anticipated, even in the absence
of mitigation measures, or authorized.
NMFS expects that takes would be in the form of short-term
behavioral harassment by way of temporary vacating of the area, or
decreased foraging (if such activity was occurring)--reactions that (at
the scale and intensity anticipated here) are considered to be of low
severity, with no lasting biological consequences. Since both the
sources and marine mammals are mobile, animals would only be exposed
briefly to a small ensonified area that might result in take.
Additionally, required mitigation measures would further reduce
exposure to sound that could result in more severe behavioral
harassment.
Biologically Important Areas for Other Species
Biologically Important Areas for Fin Whales
A small fin whale feeding BIA (March-October) located east of
Montauk Point, New York (Figure 2.3 in LaBrecque et al., 2015), is
fully encompassed by the survey area (see Figure 1 in the Federal
Register notice of the proposed IHA (87 FR 30872, May 20, 2022)). A
second larger yearlong feeding BIA extends from the Great South Channel
(east of the smaller fin whale feeding BIA) north to southern Maine,
and partially overlaps the northernmost portion of the survey area. The
surveys will cover 69,529 km (43,203 miles) of trackline throughout
24,836 square kilometers (i.e., total survey area; 9,597 square miles),
of which the BIA just east of Montauk Point occupies a small proportion
(2,933 km\2\). The amount of time Vineyard Northeast will survey in the
area overlapping this small BIA will also be a fraction of the 869
planned survey days and, when surveys do occur, the ensonified Level B
harassment zone will be limited to a maximum 178-m radius from the
boomer. Any disruption of feeding behavior or avoidance of the western
BIA by fin whales on survey days from March to October is expected to
be temporary, with habitat utilization by fin whales returning to
baseline once the disturbance ceases. In addition, the larger fin whale
feeding BIA will provide suitable alternate habitat and ample foraging
opportunities consistently throughout the year, rather than seasonally
like the smaller, western BIA. Because of the temporary nature of the
disturbance and the availability of similar habitat and resources in
the surrounding area, the impacts of these surveys to fin whales and
the food sources that they utilize are not expected to cause
significant or long-term consequences for individual fin whales or
their population.
Biologically Important Area for Sei Whales
An extensive sei whale feeding BIA (May-November) stretching from
the 25-m depth contour off central Maine and Massachusetts to the 200-m
contour in central Gulf of Maine, including the northern shelf break of
Georges Bank (see Figure 2.2 in LaBrecque et al., 2015). This BIA also
includes the southern shelf break area of Georges Bank from depths of
100 m to 2,000 m and the Great South Channel. Similar to NARWs, the
most northern and eastern parts of the survey area overlaps the western
side of this BIA (just to the east and north of Cape Cod). However,
this very limited overlap is sufficiently small that feeding
opportunities for sei whales are not expected to be reduced
appreciably, if at all.
Biologically Important Area for Minke Whales
LaBrecque et al. (2015) define a vast minke whale feeding BIA
(March-November) in waters less than 200 m, extending throughout the
southern and southwestern section of the Gulf of Maine, including
George's Bank, the Great South Channel, Cape Cod Bay and Massachusetts
Bay, Stellwagen Bank, Cape Anne, and Jeffreys Ledge (Figure 2.1 in
LaBrecque et al., 2015). Relative to the size of this BIA, the very
small overlap of its western side and the survey area (including waters
just east of Cape Cod, Cape Cod Bay and Massachusetts Bay), coupled
with the small ensonified zone when surveys do occur in this
overlapping area, is not expected to limit access to suitable habitat
or deter foraging behavior for minke whales in any perceptible way.
Biologically Important Area for Humpback Whales
A humpback whale feeding BIA (March-December; Figure 2.8 in
LaBrecque et al .2015) spans the Gulf of Maine, Stellwagen Bank, and
the Great South Channel. As is the case for fin, sei, and minke whales,
this large BIA overlaps only the most northern and northeastern portion
of Vineyard Northeast's survey area. Even if humpback whales completely
avoided this overlapping area while the acoustic sources used during
surveys were active, nearby suitable habitat would be easily accessible
as would their primary prey (herring and capelin). Alternatively, if
humpback whales were present while acoustic sources were active, any
disturbance is expected to be temporary and minor, such that foraging
behavior (if it were previously occurring) would resume once the use of
active acoustics ceases.
As previously discussed, impacts from the surveys are expected to
be localized to the specific area of activity and only during periods
of time where Vineyard Northeast's acoustic sources are active. While
areas of biological importance to foraging fin whales, sei whales,
minke whales, and humpback whales exist within the survey area, NMFS
does not expect this specified activity to affect these areas or any
species' ability to utilize prey resources within the BIAs, given the
nature of the survey activity, and the combination of the mitigation
and monitoring measures being required of Vineyard Northeast.
Several major haul-out sites exist for harbor seals within the
survey area along the New Jersey coast (e.g., Great Bay, Sandy Hook,
and Barnegat Inlet), New York Coast (e.g., Montauk Island), and Rhode
Island coast (e.g., Narragansett Bay), and for gray and harbor seals
along the Massachusetts coast (e.g., Cape Cod, Monomoy Island)
(DiGiovanni and Sabrosky 2010). However, as hauled-out seals would be
[[Page 52932]]
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 the species or stock through
effects on annual rates of recruitment or survival:
<bullet> No mortality or serious injury is anticipated or
authorized;
<bullet> No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, or authorized;
<bullet> Foraging success is not likely to be significantly
impacted as effects on species that serve as prey species for marine
mammals from the survey are expected to be minimal;
<bullet> The availability of alternate areas of similar habitat
value for marine mammals to temporarily vacate the survey area during
the planned survey to avoid exposure to sounds from the activity;
<bullet> Take is anticipated to be by Level B behavioral harassment
only, consisting of brief startling reactions and/or temporary
avoidance of the survey area;
<bullet> While the survey area overlaps with a portion of the NARW
migratory BIA, the survey activities will occur in such a comparatively
small area that any avoidance of the survey area due to activities will
not affect migration. The survey area also overlaps a foraging BIA that
includes Cape Cod Bay; however, a seasonal restriction on survey
activities (see below) will limit any survey impacts on NARW foraging
in the Bay. In addition, the requirement to shut down at 500 m to
minimize potential for Level B behavioral harassment will limit the
effects of the action on migratory or feeding behavior of the species.
Furthermore, NMFS has analyzed the potential for ship strike resulting
from Vineyard Northeast's activity and has determined that, based on
the extensive suite of required mitigation measures specific to vessel
strike avoidance included in the IHA, the potential for vessel strike
is so low as to be discountable;
<bullet> Due to the relatively small footprint of the survey
activities in relation to the size of foraging BIAs for fin, sei,
minke, and humpback whales, survey activities are not expected to
affect foraging behavior of these species;
<bullet> As no injury or mortality is expected or authorized, and
Level B harassment will be reduced to the level of least practicable
adverse impact through use of mitigation measures, the authorized
number of takes for North Atlantic right, humpback, and minke whales
would not exacerbate or compound the effects of the ongoing UMEs in any
way;
<bullet> A seasonal restriction on survey activities in Cape Cod
Bay (January 1 through May 15), when NARW occurrence is highest in this
ESA-designated critical foraging habitat and the Cape Cod Bay SMA is
active, will minimize the likelihood that NARW foraging behavior would
be affected by survey activities; and
<bullet> The mitigation measures, including visual monitoring and
shutdowns, are expected to minimize the intensity of potential impacts
to marine mammals.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat and taking into
consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the total marine mammal take 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 less 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. For this IHA, take of
all species or stocks is below one third of the estimated stock
abundance (i.e., less than 11 percent for all stocks, equal to or less
than 8 percent for 19 stocks, and less than 4 percent for 18 stocks
(Table 5)).
Based on the analysis contained herein of the proposed activity
(including the mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS finds that small numbers of marine mammals
would be taken relative to the population size of the affected species
or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS Office of Protected Resources (OPR) consults internally whenever
we propose to authorize take for endangered or threatened species.
NMFS is authorizing take, by Level B harassment only, of a NARWs,
fin whales, sei whales, and a blue whale which are all species listed
under the ESA. On June 29, 2021 (revised September 2021), GARFO
completed an informal programmatic consultation on the effects of
certain site assessment and site characterization activities to be
carried out to support the siting of offshore wind energy development
projects off the U.S. Atlantic coast. Part of the activities considered
in the consultation are geophysical surveys such as those proposed by
Vineyard Northeast and for which we are authorizing take. GARFO
concluded site assessment surveys are not likely to adversely affect
endangered species or adversely modify or destroy critical habitat.
NMFS has determined issuance of the IHA is covered under the
programmatic consultation; therefore, ESA consultation has been
satisfied.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our action (i.e., the issuance of an IHA) with respect
to potential impacts on the human environment. This action is
consistent with categories of activities identified in Categorical
Exclusion B4 (IHAs with no anticipated serious injury or mortality) of
the Companion Manual for NOAA Administrative Order 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
[[Page 52933]]
categorical exclusion. Accordingly, NMFS has determined that the
issuance of the IHA qualifies to be categorically excluded from further
NEPA review.
Authorization
As a result of these determinations, NMFS is issuing an IHA to
Vineyard Northeast for the potential harassment of small numbers of 19
marine mammal species (with 20 managed stocks) incidental to conducting
marine site characterization surveys offshore from Massachusetts to New
Jersey, in the area of the Commercial Lease of Submerged Lands for
Renewable Energy Development on the Outer Continental Shelf Lease Areas
OCS-A 0522 and OCS-A 0544 and along OECC routes to landfall locations,
provided the previously mentioned mitigation, monitoring, and reporting
requirements are followed. The final IHA and supporting documents can
be found 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>.
Dated: August 23, 2022.
Catherine Marzin,
Acting Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2022-18602 Filed 8-29-22; 8:45 am]
BILLING CODE 3510-22-P
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