Notice2023-04445
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys in the New York Bight
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
March 6, 2023
Effective
March 1, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to Bluepoint Wind, LLC (BPW) to incidentally harass marine mammals during marine site characterization surveys in coastal waters off of New York and New Jersey in the New York Bight, specifically within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (Lease) Area OCS-A 0537 and associated export cable route (ECR) area.
Full Text
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<title>Federal Register, Volume 88 Issue 43 (Monday, March 6, 2023)</title>
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[Federal Register Volume 88, Number 43 (Monday, March 6, 2023)]
[Notices]
[Pages 13783-13801]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-04445]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC784]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys in the New York Bight
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an incidental harassment authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an Incidental Harassment Authorization (IHA) to
Bluepoint Wind, LLC (BPW) to incidentally harass marine mammals during
marine site characterization surveys in coastal waters off of New York
and New Jersey in the New York Bight, specifically within the Bureau of
Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for
Renewable Energy Development on the Outer Continental Shelf (Lease)
Area OCS-A 0537 and associated export cable route (ECR) area.
DATES: This Authorization is effective from March 1, 2023 through
February 29, 2024.
[[Page 13784]]
FOR FURTHER INFORMATION CONTACT: Jenna Harlacher, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as a list of the references cited in
this document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-bluepoint-wind-llc-marine-site-characterization-surveys-new">https://www.fisheries.noaa.gov/action/incidental-take-authorization-bluepoint-wind-llc-marine-site-characterization-surveys-new</a>. In case of problems
accessing these documents, please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are proposed or, if the taking is limited to harassment, a notice of a
proposed IHA is provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth. The definitions
of all applicable MMPA statutory terms cited above are included in the
relevant sections below.
Summary of Request
On August 18, 2022, NMFS received a request from BPW for an IHA to
take marine mammals incidental to marine site characterization surveys
in coastal waters off of New York and New Jersey in the New York Bight,
specifically within the BOEM Lease Area OCS-A 0537 and associated ECR
area. Following NMFS' review of the application, the application was
deemed adequate and complete on October 25, 2022. BPW's request is for
take of small numbers of 15 species (16 stocks) of marine mammals by
Level B harassment only. Neither BPW nor NMFS expect serious injury or
mortality to result from this activity and, therefore, an IHA is
appropriate. There are no changes from the proposed IHA to the final
IHA.
Description of Activity
Overview
BPW plans to conduct marine site characterization surveys,
including high-resolution geophysical (HRG) surveys, in coastal waters
off of New Jersey and New York in the New York Bight, specifically
within the BOEM Lease Area OCS-A 0537 and associated ECR area.
The planned marine site characterization surveys are designed to
obtain data sufficient to meet BOEM guidelines for providing
geophysical, geotechnical, and geohazard information for site
assessment plan surveys and/or construction and operations plan
development. The objective of the surveys is to support the site
characterization, siting, and engineering design of offshore wind
project facilities including wind turbine generators, offshore
substations, and submarine cables within the Lease Area. At least two
survey vessels will operate as part of the planned surveys with a
maximum of two nearshore (<20 meters (m)) vessels and a maximum of two
offshore (>=20 m) vessels operating concurrently. Underwater sound
resulting from BPW's marine site characterization survey activities,
specifically HRG surveys, have the potential to result in incidental
take of marine mammals in the form of Level B harassment.
Dates and Duration
The survey is planned to begin as early as March 1, 2023 and
estimated to require 432 survey days across a maximum of two nearshore
and two offshore vessels operating concurrently within a single year. A
``survey day'' is defined as a 24-hour (hr) activity period in which
active acoustic sound sources are used. It is expected that each vessel
would cover approximately 170 kilometers (km) per day based on the
applicant's expectations regarding data acquisition efficiency, and
there is up to 23,191 km of track line of survey effort planned. The
IHA would be effective for one year from the date of issuance.
Specific Geographic Region
BPW's survey activities would occur in coastal waters off of New
York and New Jersey in the New York Bight, specifically within Lease
Area OCS-A 0537 and the ECR area (Figure 1). Water depths in the OCS
Lease Area are between 50 m and 60 m. Water depths in the ECR area are
between 5 m and 60 m.
BILLING CODE 3510-22-P
[[Page 13785]]
[GRAPHIC] [TIFF OMITTED] TN06MR23.009
BILLING CODE 3510-22-C
Figure 1. Survey Area
Detailed Description of Specified Activity
BPW plans to conduct HRG survey operations, including multibeam
depth sounding, seafloor imaging, and shallow and medium penetration
sub-bottom profiling. The HRG surveys will include the use of seafloor
mapping equipment with operating frequencies above 180 kilohertz (kHz)
(e.g., side-scan sonar (SSS), multibeam echosounders (MBES));
gradiometers that have no acoustic output; non-impulsive, parametric
sub-bottom profilers (SBPs) with narrow beamwidth; and medium-
penetration sub-bottom profiling (SBP) equipment (e.g., boomers and
sparkers) with operating frequencies below 180 kilohertz (kHz). No
deep-penetration SBP surveys (e.g., airgun or bubble gun surveys) will
be conducted.
There are two possible options for BPW's surveys in the Lease area
using a sparker system (Dual Geo-Spark 2000X). Under Option One, one
Dual Geo-Spark 2000X would be used at a minimum of 30 m line spacing
with tieline spacing of 500 m for a total survey distance of 9,923 km
in the Lease Area. Under Option Two, up to four Dual Geo-Spark 2000X
would be towed to conduct an Ultra High Resolution 3-dimensional
(UHR3D) survey. The sparkers would be fired sequentially such that only
one is fired at a time with 0.33 seconds between shots. The sparkers
would be physically spaced 25 m apart for a total spread of 75 m. The
tracklines would be similar to those for the single sparker; however,
they would be spaced a minimum of 43.75 m apart with tielines spaced at
500 m for a shorter total survey distance of 6,814 km. Since BPW may
use either method, this analysis is based on the more impactful of the
two options (Option 1), which has the larger total line-km.
In the ECR area, either a boomer or sparker will be used.
Regardless of which system is used, BPW plans to conduct the survey
with a minimum of 30 m line spacing and tielines spaced at 500 m
intervals in Federal waters through potential cable corridors and at a
minimum of 15 m line spacing and tielines spaced at 500 m in State
waters for a total of 13,268 km of combined tracklines and tielines.
Further detail regarding the planned HRG surveys is provided in the
Federal Register notice for the proposed IHA (88 FR 2325; January 13,
2023). Since that time, no changes have been made to the planned HRG
survey activities. Therefore, a detailed description is not provided
here. Please refer to that Federal Register notice for additional,
detailed description of the specific activity.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to BPW was published in
the Federal Register on January 13, 2023 (88 FR 2325). That notice
described, in detail, BPW's planned activities, the marine mammal
species that may be affected by the activities, and the
[[Page 13786]]
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 ten comment letters from private citizens. All of
these expressed general opposition to issuance of the IHA or to the
underlying associated activities. We reiterate here that NMFS' proposed
actions concern only the authorization of marine mammal take incidental
to the planned surveys--NMFS' authority under the MMPA does not extend
to the surveys themselves, or to wind energy development more
generally. Further, NMFS does not have discretion regarding issuance of
requested incidental take authorizations pursuant to the MMPA, assuming
(1) the total taking associated with a specified activity will have a
negligible impact on the affected species or stock(s); (2) the total
taking associated with a specified activity will not have an
unmitigable adverse impact on the availability of the species or
stock(s) for subsistence uses (not relevant here); (3) the total taking
associated with a specified activity is small numbers of marine mammals
of any species or stock; and (4) appropriate mitigation, monitoring,
and reporting of such takings are set forth, including mitigation
measures sufficient to meet the standard of least practicable adverse
impact on the affected species or stocks. Many of these comments
received request that NMFS not issue any of the IHAs and/or express
disdain for wind energy development generally, but without providing
information relevant to NMFS' decisions. We do not specifically address
comments expressing general opposition to activities related to wind
energy development.
Five of these letters provided general concerns regarding recent
whale stranding events on the Atlantic Coast, including speculation
that the strandings may be related to wind energy development-related
activities. However, the commenters did not provide any specific
information supporting these concerns. Therefore, we refer those
commenters to the analyses herein, and do not specifically address
these comments.
Additionally, NMFS received letters from two non-governmental
organizations, Responsible Offshore Development Alliance (RODA) and
Friends of Animals (FoA). All substantive comments, and NMFS'
responses, are provided below, and all letters are available online at:
<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-bluepoint-wind-llc-marine-site-characterization-surveys-new">https://www.fisheries.noaa.gov/action/incidental-take-authorization-bluepoint-wind-llc-marine-site-characterization-surveys-new</a>). Please
review the letters for full details regarding the comments and
underlying justification.
Comment 1: RODA states that, to their knowledge, there are no
resources easily accessible to the public to understand what
authorizations are required for each of these activities (pre-
construction surveys, construction, operations, monitoring surveys,
etc.). RODA recommends that NMFS improve the transparency of this
process and move away from what it refers to as a ``segmented phase-by-
phase and project-by-project approach to IHAs.''
Response: The MMPA, and its implementing regulations, allows, upon
request, the incidental take of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographic region. NMFS responds to these
requests by authorizing the incidental take of marine mammals if it is
found that the taking would be of small numbers, have no more than a
``negligible impact' on the marine mammal species or stock, and not
have an ``unmitigable adverse impact'' on the availability of the
species or stock for subsistence use. NMFS emphasizes that an IHA does
not authorize the activity itself but authorizes the take of marine
mammals incidental to the ``specified activity'' for which incidental
take coverage is being sought. In this case, NMFS is responding to the
applicant, BPW, and the specified activity described in their
application and making necessary findings on the basis of what was
provided in their application. The authorization of BPW's activity
(note, not the authorization of takes incidental to that activity) is
not within the jurisdiction of NMFS. NMFS refers RODA to the Permitting
Dashboard for Federal Infrastructure Projects for further information
on timelines and proposed authorizations planned for application for
each of these activities: <a href="https://www.permits.performance.gov/">https://www.permits.performance.gov/</a>.
NMFS is required to consider applications upon request. To date,
NMFS has not received any joint applications. While an individual
company owning multiple lease areas may apply for a single
authorization to conduct site characterization surveys across a
combination of those lease areas (85 FR 63508, October 8, 2020; 87 FR
13975, March 11, 2022), this is not applicable in this case. In the
future, if applicants wish to undertake this approach, NMFS is open to
the receipt of joint applications and additional discussions on joint
actions.
Comment 2: RODA expressed concern regarding the potential for
increased uncertainty in estimates of marine mammal abundance resulting
from wind turbine presence during aerial surveys and potential effects
of NMFS' ability to continue using current aerial survey methods to
fulfill its mission of precisely and accurately assessing protected
species.
Response: NMFS has determined that offshore wind development
projects may impact several surveys carried out by its Northeast
Fisheries Science Center (NEFSC), including aerial surveys for
protected species. NEFSC has developed a Federal survey mitigation
program to mitigate the impacts to these surveys, and is in the early
stages of implementing this program. However, this impact is outside
the scope of analysis related to the authorization of take incidental
to BPW's specified activity under the MMPA.
Comment 3: RODA expressed concerns with the high amount of
increased vessel traffic associated with the Offshore Wind (OSW)
projects throughout the region in areas transited or utilized by
certain protected resources, as well as concern for vessel noise and
increased risk for vessel strikes.
Response: BPW did not request authorization for take incidental to
vessel traffic during BPW'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. For this IHA, NMFS did not authorize
any take of marine mammals incidental to vessel strike resulting from
the survey. If BPW were to strike a marine mammal with a vessel, this
would be an unauthorized take and be in violation of the MMPA. This
gives BPW 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. BPW proposed a very
conservative suite of mitigation measures related to vessel strike
avoidance, including measures specifically designed to avoid impacts to
North Atlantic right whales. Section 4(l) in the IHA contains a suite
of non-discretionary requirements pertaining to ship strike avoidance,
including vessel operation protocols and monitoring. NMFS takes
seriously the risk of vessel strike and has
[[Page 13787]]
prescribed measures sufficient to avoid the potential for ship strike
to the extent practicable. NMFS has required these measures despite a
very low likelihood of vessel strike; vessels associated with the
survey activity will add a discountable amount of vessel traffic to the
specific geographic region and, furthermore, vessels towing survey gear
travel at very slow speeds (i.e., roughly 4-5 knots (kn) (7.41-9.26 km/
hour)).
To date, NMFS is not aware of any site characterization vessel from
surveys reporting a vessel strike within the United States. When
considered in the context of low overall probability of any vessel
strike by BPW vessels, given the limited additional survey-related
vessel traffic relative to existing traffic in the survey area, the
comprehensive visual monitoring, and other additional mitigation
measures described herein, NMFS believes these measures are
sufficiently protective to avoid ship strike. These measures are
described fully in the Mitigation section below, and include, but are
not limited to: training for all vessel observers and captains, daily
monitoring of North Atlantic right whale Sighting Advisory System,
WhaleAlert app, and USCG Channel 16 for situational awareness regarding
North Atlantic right whale presence in the survey area, communication
protocols if whales are observed by any BPW personnel, vessel
operational protocol should any marine mammal be observed, and visual
monitoring.
The potential for impacts related to an overall increase in the
amount of vessel traffic due to OSW development is separate from the
aforementioned analysis of potential for vessel strike during BPW's
specified survey activities.
Comment 4: RODA defers to the Marine Mammal Commission's previous
comments on the matter of effects on marine mammals from offshore wind
development, expressing that ``they are more knowledgeable on impacts
of pile driving and acoustics to marine mammals''.
Response: In response to RODA's deferral to the Marine Mammal
Commission, the Commission, the agency charged with advising Federal
agencies on the impacts of human activity on marine mammals, has
questioned in its previous public comment whether incidental take
authorizations are even necessary for surveys utilizing HRG equipment
(i.e., take is unlikely to occur), and has subsequently informed NMFS
that they would no longer be commenting on such actions, including
BPW's activity described herein. Additionally, comments related to pile
driving and OSW construction are outside the scope of this IHA and,
therefore, are not discussed.
Comment 5: RODA defers to the September 9, 2020 letter submitted by
seventeen Environmental NRGs and echoes their concerns.
Response: NMFS refers RODA to the Federal Register notice 85 FR
63508 (October 8, 2020) for previous responses to the Environmental
NGOs' previous letter of which RODA references and defers expertise to.
Comment 6: RODA expressed concern that negative impacts to local
fishermen and coastal communities as a result of a potentially adverse
impact to marine mammals (e.g., vessel strike resulting in death or
severe injury) were not mentioned nor evaluated in ``the IHA request
for this project''. Private Citizens and RODA also emphasized concern
about the alleged lack of adequate analysis of individual and
cumulative impacts to marine mammals, RODA noting existing fishery
restrictions as a result of other North Atlantic right whale
protections.
Response: Neither the MMPA nor our implementing regulations require
NMFS to analyze impacts to other industries (e.g., fisheries) or
coastal communities from issuance of an ITA. Nevertheless, as detailed
in the proposed IHA notice and in our response to comment 3, NMFS has
analyzed the potential for adverse impacts such as vessel strikes to
marine mammals, including North Atlantic right whales, as a result of
BPW's planned site characterization survey activities and determined
that no serious injury or mortality is anticipated. In fact, as
discussed in the Negligible Impact Analysis and Determination section,
later in this document, no greater than low-level behavioral harassment
is expected for any affected species. For North Atlantic right whale in
particular, it is considered unlikely, as a result of the required
precautionary shutdown zone (i.e., 500 m versus the estimated maximum
Level B harassment zone of 141 m), that the authorized take would occur
at all. Thus, NMFS would also not anticipate the impacts RODA raises as
a result of issuing this IHA for site characterization survey
activities to BPW.
In regards to cumulative impacts, neither the MMPA nor NMFS'
codified implementing regulations call for consideration of other
unrelated activities and their impacts on populations. The preamble for
NMFS' implementing regulations (54 FR 40338; September 29, 1989) states
in response to comments that the impacts from other past and ongoing
anthropogenic activities are to be incorporated into the negligible
impact analysis via their impacts on the baseline. Consistent with that
direction, NMFS has factored into its negligible impact analysis the
impacts of other past and ongoing anthropogenic activities via their
impacts on the baseline, e.g., as reflected in the density/distribution
and status of the species, population size and growth rate, and other
relevant stressors. The 1989 final rule for the MMPA implementing
regulations also addressed public comments regarding cumulative effects
from future, unrelated activities. There NMFS stated that such effects
are not considered in making findings under section 101(a)(5)
concerning negligible impact. In this case, this IHA, as well as other
IHAs currently in effect or proposed within the specified geographic
region, are appropriately considered an unrelated activity relative to
the others. The IHAs are unrelated in the sense that they are discrete
actions under section 101(a)(5)(D), issued to discrete applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of the specified activity or
class of activities that can be expected to result in incidental taking
of marine mammals. 50 CFR 216.104(a)(1). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, BPW was the applicant for the IHA, and we are
responding to the specified activity as described in that application
(and making the necessary findings on that basis).
Through the response to public comments in the 1989 implementing
regulations, NMFS also indicated (1) that we would consider cumulative
effects that are reasonably foreseeable when preparing a NEPA analysis,
and (2) that reasonably foreseeable cumulative effects would also be
considered under section 7 of the Endangered Species Act (ESA) for ESA-
listed species, as appropriate. Accordingly, NMFS has written
Environmental Assessments (EA) that addressed cumulative impacts
related to substantially similar activities, in similar locations,
e.g., the 2019 Avangrid EA for survey activities offshore North
Carolina and Virginia; the 2017 Ocean Wind, LLC EA for site
[[Page 13788]]
characterization surveys off New Jersey; and the 2018 Deepwater Wind EA
for survey activities offshore Delaware, Massachusetts, and Rhode
Island. Cumulative impacts regarding issuance of IHAs for site
characterization survey activities such as those planned by BPW have
been adequately addressed under NEPA in prior environmental analyses
that support NMFS' determination that this action is appropriately
categorically excluded from further NEPA analysis. NMFS independently
evaluated the use of a categorical exclusion (CE) for issuance of BPW's
IHA, which included consideration of extraordinary circumstances.
Separately, the cumulative effects of substantially similar
activities in the northwest Atlantic Ocean have been analyzed in the
past under section 7 of the ESA when NMFS has engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion
for BOEM Lease and Site Assessment Rhode Island, Massachusetts, New
York, and New Jersey Wind Energy Areas (<a href="https://repository.library.noaa.gov/view/noaa/29291">https://repository.library.noaa.gov/view/noaa/29291</a>). Analyzed activities
include those for which NMFS issued previous IHAs (82 FR 31562, July 7,
2017; 83 FR 28808, June 21, 2018; 83 FR 36539, July 30, 2018; 86 FR
26465, May 10, 2021), which are similar to those planned by BPW under
this current IHA request. This Biological Opinion determined that NMFS'
issuance of IHAs for site characterization survey activities associated
with leasing, individually and cumulatively, are not likely to
adversely affect listed marine mammals. NMFS notes that, while issuance
of this IHA is covered under a different consultation, this BiOp
remains valid.
Comment 7: RODA expressed interest in understanding the outcome if
the number of actual takes exceed the number authorized during
construction of an offshore wind project (i.e., would the project be
stopped mid-construction or operation), and how offshore wind
developers will be held accountable for impacts to protected species
such that impacts are not inadvertently assigned to fishermen, should
they occur. Lastly, RODA maintains that the OSW industry must be
accountable for incidental takes from construction and operations
separately from the take authorizations for managed commercial fish
stocks.
Response: It is important to recognize that an IHA does not
authorize the activity but authorizes take of marine mammals incidental
to the activity. As described in condition 3(b) and (c) of the IHA,
authorized take, by Level B harassment only, is limited to the species
and numbers listed in Table 1 of the final IHA, and any taking
exceeding the authorized amounts listed in Table 1 is prohibited and
may result in the modification, suspension, or revocation of the IHA.
As described in condition 4(k)(v), shutdown of acoustic sources is
required upon observation of either a species for which incidental take
is not authorized or a species for which incidental take has been
authorized but the authorized number of takes has been met, entering or
within the Level B harassment zone.
It is unclear why RODA would be concerned that the OSW developers
are responsible for their own impacts and ``the burdens of those are
not also assigned to fishermen''. Fishing impacts generally center on
entanglement in fishing gear, which is a very acute, visible, and
severe impact. In contrast, the pathway by which impacts occur
incidental to construction or site characterization survey activities,
such as those planned by BPW here, is primarily acoustic in nature.
Regardless, NMFS reiterates that this IHA does not authorize take
incidental to construction activities, but site characterization survey
activities, and any take beyond that authorized would be in violation
of the MMPA. It is BOEM's responsibility as the permitting agency to
make decisions regarding ceasing BPW's overall offshore wind
development activities, not NMFS. If the case suggested by RODA does
occur, NMFS would work with BOEM and BPW to determine the most
appropriate means by which to ensure compliance with the MMPA. The
impacts of commercial fisheries on marine mammals and incidental take
for said fishing activities are indeed managed separately from those of
non-commercial fishing activities such as offshore wind site
characterization surveys (MMPA section 118).
Comment 8: RODA urges NMFS to use the best available science
including the most comprehensive models for estimating marine mammal
take and developing robust mitigation measures. Additionally, RODA
encourages NMFS to evaluate the proposed IHA with the best available
science.
Response: NMFS utilizes the best available science when analyzing
which species may be impacted by an applicant's proposed activities.
NMFS has carefully reviewed the best available scientific information
in assessing impacts to marine mammals, and recognizes that the surveys
have the potential to impact marine mammals through behavioral effects,
stress responses, and auditory masking.
NMFS considered the best available science regarding both recent
habitat usage patterns for the study area and up-to-date seasonality
information in the notice of the proposed IHA, including consideration
of existing BIAs and densities provided by Roberts et al. (2021). To
limit the potential severity of any possible behavioral disruptions,
NMFS has prescribed a robust suite of mitigation measures, including
extended distance shutdowns for North Atlantic right whale, that are
expected to further reduce the duration and intensity of acoustic
exposure. 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.
Lastly, as we stated in the notice of proposed IHA (88 FR 2325;
January 13, 2023), any impacts to marine mammals are expected to be
temporary and minor and, given the relative size of the survey area.
Because of this, and in context of the minor, low-level nature of the
impacts expected to result from the planned survey, such impacts are
not expected to result in disruption to biologically important
behaviors.
Comment 10: RODA and FOA insist that NMFS must consider whether
authorization of additional OSW related activities should be allowed,
given the recent whale strandings in the area. FOA and private citizens
additionally urge NMFS to postpone any OSW activities until NMFS
determines effects of all OSW activities on marine mammals in the
region, and determines that the recent whale deaths are not related to
OSW actions.
Response: A moratorium or stop to additional OSW related activities
due to the recent whale deaths is not within NMFS jurisdiction. BOEM is
the agency with the authority to approve or disapprove a developer's
Site Assessment Plan. NMFS authorizes take of marine mammals incidental
to surveys but does not authorize the surveys. Therefore, while NMFS
has the authority to modify, suspend, or revoke an IHA if the IHA
holder fails to abide by the conditions prescribed therein (including,
but not limited to, failure to comply with monitoring or reporting
requirements), or if NMFS determines that (1) the authorized taking is
having or is likely to have more than a negligible impact on the
species or stocks of affected marine mammals, or (2) the prescribed
measures are likely not or are not effecting the least practicable
adverse impact on the affected species or stocks and their habitat, it
is not within NMFS jurisdiction to impose a moratorium on offshore wind
development or to require
[[Page 13789]]
surveys to cease on the basis of unsupported speculation.
Currently, there are active ``Unexplained Mortality Events''
(UME's) for both humpback whales and North Atlantic right whales in the
areas of the recent stranding's. These UME's were both declared in
2017. See further discussion of this in the Negligible Impact Analysis
and Determination section later in the notice.
Additionally, marine site characterization surveys have an
extremely low risk of whale related injury or death. As mentioned above
in Comment 3, while NMFS acknowledges that vessel strikes can result in
injury or mortality, we have analyzed the potential for vessel strike
resulting from BPW's activity and have determined that based on the
nature of the activity and the required mitigation measures specific to
vessel strike avoidance included in the IHA, potential for vessel
strike is so low as to be discountable.
The required mitigation measures, all of which were included in the
proposed IHA and are now required in the final IHA, include: A
requirement that all vessel operators comply with 10 kn (18.5 km/hour)
or less speed restrictions in any Seasonal Management Area (SMA),
Dynamic Management Area (DMA) or Slow Zone while underway, and check
daily for information regarding the establishment of mandatory or
voluntary vessel strike avoidance areas (SMAs, DMAs, Slow Zones) and
information regarding North Atlantic right whales sighting locations; a
requirement that all vessels greater than or equal to 19.8 m in overall
length operating from November 1 through April 30 operate at speeds of
10 kn (18.5 km/hour) or less; a requirement that all vessel operators
reduce vessel speed to 10 kn (18.5 km/hour) or less when any large
whale, any mother/calf pairs, pods, or large assemblages of non-
delphinid cetaceans are observed near the vessel; a requirement that
all survey vessels maintain a separation distance of 500 m or greater
from any ESA-listed whales or other unidentified large marine mammals
visible at the surface while underway; a requirement that, if underway,
vessels must steer a course away from any sighted ESA-listed whale at
10 kn (18.5 km/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 vessel strike avoidance
measures in the IHA are sufficient to ensure the least practicable
adverse impact on species or stocks and their habitat. Furthermore, no
documented vessel strikes have occurred for any marine site
characterization surveys which were issued IHAs from NMFS during the
survey activities themselves or while transiting to and from survey
sites.
NMFS reiterates that use of the planned sources is not expected to
have any potential to cause injury of any species even in the absence
of mitigation. Consideration of the anticipated effectiveness of the
mitigation measures (i.e., shutdown zones and shutdown measures)
discussed below and in the Mitigation section of this notice further
strengthens the conclusion that injury is not a reasonably anticipated
outcome of the survey activity. Nevertheless, there are several
shutdown requirements described in the Federal Register notice of the
proposed IHA (88 FR 2325; January 13, 2023), and which are included in
the final IHA, including the stipulation that geophysical survey
equipment must be immediately shut down if any marine mammal is
observed within or entering the relevant Shutdown Zone while
geophysical survey equipment is operational. There is no exemption for
the shutdown requirement for North Atlantic right whales and ESA-listed
species.
The best available science indicates that Level B harassment, or
disruption of behavioral patterns, may occur. No mortality or serious
injury is expected to occur as a result of the planned surveys, and
there is no scientific evidence indicating that any marine mammal could
experience these as a direct result of noise from geophysical survey
activity. Authorization of mortality and serious injury may not occur
via IHAs, only within Incidental Take Regulations (ITRs), and such
authorization was neither requested nor proposed. NMFS notes that in
its history of authorizing take of marine mammals, there has never been
a report of any serious injuries or fatalities of a marine mammal
related to the site characterization surveys.
NMFS emphasizes that there is no credible scientific evidence
available suggesting that mortality and/or serious injury is a
potential outcome of the planned survey activity. We also refer to the
GARFO 2021 Programmatic Consultation, which finds that these survey
activities are in general not likely to adversely affect ESA-listed
marine mammal species, i.e., GARFO's analysis conducted pursuant to the
ESA finds that marine mammals are not likely to be taken at all (as
that term is defined under the ESA), much less be taken by serious
injury or mortality. That document is found here: <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions, incorporated here by reference, instead of
reprinting the information. Additional information regarding population
trends and threats may be found in NMFS' Stock Assessment Reports
(SARs; <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these
species (e.g., physical and behavioral descriptions) may be found on
NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 1 lists all species or stocks for which take is expected and
authorized for this activity, and summarizes information related to the
population or stock, including regulatory status under the MMPA and
Endangered Species Act (ESA) and potential biological removal (PBR),
where known. PBR is defined by the MMPA as the maximum number of
animals, not including natural mortalities, that may be removed from a
marine mammal stock while allowing that stock to reach or maintain its
optimum sustainable population (as described in NMFS' SARs). While no
serious injury or mortality is anticipated or authorized here, PBR and
annual serious injury and mortality from anthropogenic sources are
included here as gross indicators of the status of the species or
stocks and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular
[[Page 13790]]
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' US Atlantic and Gulf of Mexico SARs. All values
presented in Table 1 are the most recent available at the time of
publication (including from the draft 2022 SARs) and are available
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>.
Table 1--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 Artiodactyla--Infraorder Cetacea-- Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic right whale...... Eubalaena glacialis.... Western Atlantic Stock. E/D, Y 338 (0; 332; 2020).... 0.7 8.1
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenopteridae
--------------------------------------------------------------------------------------------------------------------------------------------------------
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
Stock. 2016).
Sei whale....................... Balaenoptera borealis.. Nova Scotia Stock...... E/D, Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
Minke whale..................... Balaenoptera Canadian East Coastal -/-, N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. Stock. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
Sperm whale..................... Physeter macrocephalus. North Atlantic Stock... E/D, Y 4,349 (0.28; 3,451; 3.9 0
2016).
Family Delphinidae:
Long-finned pilot whale......... Globicephala melas..... Western North Atlantic -/-, N 39,215 (0.3; 30,627; 306 29
Stock. 2016).
Atlantic white-sided dolphin.... Lagenorhynchus acutus.. Western North Atlantic -/-, N 93,233 (0.71; 54,443; 544 227
Stock. 2016).
Bottlenose dolphin.............. Tursiops truncatus..... Western North Atlantic -/-, N 62,851 (0.23; 51,914; 519 28
Offshore Stock. 2016).
Northern Migratory -/D, Y 6,639 (0.41; 4,759; 48 12.2-21.5
Coastal. 2016).
Common dolphin.................. Delphinus delphis...... Western North Atlantic -/-, N 172,974 (0.21, 1,452 390
Stock. 145,216, 2016).
Atlantic spotted dolphin........ Stenella frontalis..... Western North Atlantic -/-, N 39,921 (0.27; 32,032; 320 0
Stock. 2016).
Risso's dolphin................. Grampus griseus........ Western North Atlantic -/-, N 35,215 (0.19; 30,051; 301 34
Stock. 2016).
Harbor porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -/-, N 95,543 (0.31; 74,034; 851 164
Fundy Stock. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Superfamily Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal..................... Phoca vitulina......... Western North Atlantic -/-, N 61,336 (0.08; 57,637; 1,729 339
Stock. 2018).
Gray seal \4\................... Halichoerus grypus..... Western North Atlantic -/-, N 27,300 (0.22; 22,785; 1,389 4,453
Stock. 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\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is
approximately 451,431. The annual mortality and serious injury (M/SI) value given is for the total stock.
A detailed description of the species likely to be affected by
BPW's activities, including information regarding population trends,
threats, and local occurrence, was provided in the Federal Register
notice for the proposed IHA (88 FR 2325; January 13, 2023); since that
time, we are not aware of any changes in the status of these species
and stocks; therefore, detailed descriptions are not provided here.
Please refer to that Federal Register notice for these descriptions.
Please also refer to NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for generalized species accounts.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al.
(2007, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Note that no direct measurements of
hearing ability have been successfully completed for mysticetes (i.e.,
low-frequency cetaceans). Subsequently, NMFS (2018)
[[Page 13791]]
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 2.
Table 2--Marine Mammal Hearing Groups (NMFS, 2018)
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al. 2007) and PW pinniped (approximation).
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
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 (88 FR 2325; January 13, 2023) 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 (88 FR 2325; January 13, 2023) for that
information.
Estimated Take of Marine Mammals
This section provides an estimate of the number of incidental takes
authorized through the IHA, which will inform both NMFS' consideration
of ``small numbers,'' and the negligible impact determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes are by Level B harassment only, in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to sound produced by the sparker or boomer.
Based on the characteristics of the signals produced by the acoustic
sources planned for use, Level A harassment is neither anticipated nor
authorized. As described previously, no serious injury or mortality is
anticipated or authorized for this activity. Below we describe how the
take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day; (3) the density or occurrence of marine mammals within these
ensonified areas; and, (4) the number of days of activities. We note
that while these factors can contribute to a basic calculation to
provide an initial prediction of potential takes, additional
information that can qualitatively inform take estimates is also
sometimes available (e.g., previous monitoring results or average group
size). Below, we describe the factors considered here in more detail
and present the take estimates.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur PTS of some degree (equated to Level A
harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the receiving animals (hearing, motivation,
experience, demography, life stage, depth) and can be difficult to
predict (e.g., Southall et al., 2007, 2021, Ellison et al., 2012).
Based on what the available science indicates and the practical need to
use a threshold based on a metric that is both predictable and
measurable for most activities, NMFS typically uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS generally predicts that marine mammals are
likely to be behaviorally harassed in a manner considered to be Level B
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS SPL) of 120 dB (referenced
to 1 micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g.,
scientific sonar) sources. Generally speaking, Level B harassment take
estimates based on these behavioral harassment thresholds are expected
to include any likely takes by TTS as, in most cases, the likelihood of
TTS occurs at
[[Page 13792]]
distances from the source less than those at which behavioral
harassment is likely. TTS of a sufficient degree can manifest as
behavioral harassment, as reduced hearing sensitivity and the potential
reduced opportunities to detect important signals (conspecific
communication, predators, prey) may result in changes in behavior
patterns that would not otherwise occur.
BPW's activities include the use of impulsive (i.e., boomer and
sparker) sources, and therefore, the RMS SPL thresholds of 160 dB re 1
[mu]Pa is applicable.
Level A harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive).
The references, analysis, and methodology used in the development
of the thresholds are described in NMFS' 2018 Technical Guidance, which
may be accessed at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
BPW's activity includes the use of impulsive (i.e., boomer and
sparker) sources. However, as discussed above, NMFS has concluded that
Level A harassment is not a reasonably likely outcome for marine
mammals exposed to noise through use of the sources proposed for use
here, and the potential for Level A harassment is not evaluated further
in this document. Please see BPW's application for details of a
quantitative exposure analysis exercise, i.e., calculated Level A
harassment isopleths and estimated Level A harassment exposures. BPW
did not request authorization of take by Level A harassment, and no
take by Level A harassment is proposed for authorization by NMFS.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss
coefficient.
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 (when relevant) 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.
The sparker planned for use by BPW are omnidirectional and, therefore,
beamwidth does not factor into those calculations.
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG survey equipment and, therefore, recommends that source levels
provided by Crocker and Fratantonio (2016) be incorporated in the
method described above to estimate isopleth distances to harassment
thresholds. In cases where the source level for a specific type of HRG
equipment is not provided in Crocker and Fratantonio (2016), NMFS
recommends either the source levels provided by the manufacturer be
used, or, in instances where source levels provided by the manufacturer
are unavailable or unreliable, a proxy from Crocker and Fratantonio
(2016) be used instead. Table 1 in the Federal Register notice for the
proposed IHA (88 FR 2325; January 13, 2023), shows the HRG equipment
type used during the planned surveys and the source levels associated
with those HRG equipment types.
BPW plans to use the Dual Geo-Spark 2000X (400 tip/800J). For all
source configurations, the maximum power expected to be discharged from
the sparker source is 800 J. However, Crocker and Fratantonio (2016)
did not measure the Dual Geo-Spark or a source with an energy of 800 J.
A similar alternative system, the Applied Acoustics Dura-spark with a
400 tip, was measured by Crocker and Fratantonio (2016) with an input
voltage of 500-2,000J, and these measurements were used as a proxy for
the Dual Geo-Spark. Table 1 in the Federal Register notice for the
proposed IHA (88 FR 2325; January 13, 2023), shows the source
parameters associated with this proxy. Using the measured source level
of 203 dB RMS of the proxy, results of modeling indicated that the
sparker would produce a distance of 141 m to the Level B harassment
isopleth. BPW additionally plans to use the Applied Acoustics S-Boom.
Crocker and Fratantonio (2016) did measure the Applied Acoustics S-Boom
and values were used for a dual plate 300 J source setting. Using the
measured source level of 196 dB RMS of the proxy, results of modeling
indicated that the boomer would produce a distance of 41 m to the Level
B harassment isopleth.
Results of modeling using the methodology described above indicated
that, of the HRG survey equipment planned for use by BPW that has the
potential to result in Level B harassment of marine mammals, the Dual
Geo-Spark 2000X would produce the largest distance to the Level B
harassment isopleth (141 m).
Marine Mammal Occurrence
In this section we provide information about the occurrence of
marine mammals, including density or other relevant information, that
will inform the take calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al., 2016; Roberts and
Halpin, 2022) represent the best available information regarding marine
mammal densities in the survey area. These density data incorporate
aerial and shipboard line-transect survey data from NMFS and other
organizations and incorporate data from numerous physiographic and
dynamic oceanographic and biological covariates, and controls for the
influence of sea state, group size, availability bias, and perception
bias on the probability of making a sighting. These density models were
originally developed for all cetacean taxa in the U.S. Atlantic
(Roberts et al., 2016). In subsequent years, certain models have been
updated based on additional data as well as certain methodological
improvements. More information is available online at <a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>. Marine mammal density estimates in
the survey area (animals/km\2\) were obtained using the most recent
model results for all taxa.
For the exposure analysis, density data from Roberts and Halpin
(2022) were mapped using a geographic information system (GIS). For the
survey area, the monthly densities of each species as reported by
Roberts and Halpin (2022) were averaged by season; thus, a density was
calculated for each species for spring, summer, fall, and winter.
Density seasonal averages were calculated for both the Lease Area and
the ECR Area for each species to assess the greatest average seasonal
densities for each species. To be conservative since the exact timing
for the survey during the year is uncertain, the greatest average
seasonal density calculated for each species was carried forward in the
exposure analysis, with exceptions noted later. Estimated greatest
average seasonal densities (animals/km\2\) of marine mammal species
that may be
[[Page 13793]]
taken by the planned survey can be found in Tables 7 and 8 of BPW's IHA
application. Below, we discuss how densities were assumed to apply to
specific species for which the Roberts and Halpin (2022) models provide
results at the genus or guild level.
There are two stocks of bottlenose dolphins that may be impacted by
the surveys (Western North Atlantic Northern Migratory Coastal Stock
(Coastal Stock) and the Western North Atlantic Offshore Stock (Offshore
Stock)); however, Roberts and Halpin (2022) do not differentiate by
stock. The Coastal Stock is assumed to generally occur in waters less
than 20 m and the Offshore Stock in waters deeper than 20 m (65-ft)
isobath. The lease area is in waters deeper than 20 m and only the
Offshore Stock would occur and could be potentially taken by survey
effort in that area. For the ECR survey area, both stocks could occur
in the area, so BPW calculated separate mean seasonal densities for the
portion that is less than 20 m in depth and for the portion that is
greater than 20 m in depth to use in estimating take of the Coastal and
Offshore Stocks of bottlenose dolphins, respectively. Additionally,
different trackline totals were used to calculate take of either the
Coastal or Offshore Stocks of bottlenose dolphins (6,945 km trackline
of Offshore Stock and 6,323 km trackline of the Coastal Stock).
Furthermore, the Roberts and Halpin (2022) density model does not
differentiate between the different pinniped species. For seals, given
their size and behavior when in the water, seasonality, and feeding
preferences, there is limited information available on species-specific
distribution. Density estimates of Roberts and Halpin (2022) include
all seal species that may occur in the Western North Atlantic combined
(i.e., harbor, gray, hooded, and harp). For this IHA, only the harbor
seals and gray seals are reasonably expected to occur in the survey
area; so densities of seals were split evenly between these two
species.
Lastly, the Roberts and Halpin (2022) density model does not
differentiate between the pilot whale species. We assume that all pilot
whales near the project area would be long-finned pilot whales due to
their range overlapping with the survey area and short-finned pilot
whales are not anticipated to occur as far north as the survey area.
For this IHA, densities of pilot whales are assumed to be only long-
finned pilot whale.
Take Estimation
Here we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and is authorized.
In order to estimate the number of marine mammals predicted to be
exposed to sound levels that would result in harassment, radial
distances to predicted isopleths corresponding to Level B harassment
thresholds are calculated, as described above. The maximum distance
(i.e., 141-m distance associated with the Dual Geo-Spark 2000X and 41
distance associated with the Applied Acoustics S-Boom) to the Level B
harassment criterion and the total length of the survey trackline are
then used to calculate the total ensonified area, or zone of influence
(ZOI) around the survey vessel.
As mentioned above, there are two possible options for BPW's
surveys in the Lease area using the Dual Geo-Spark 2000X.
1. One Dual Geo-Spark 2000X would be used at a minimum of 30 m line
spacing with tieline spacing of 500 m for a total survey distance of
9,923 km in the Lease Area.
2. Up to four Dual Geo-Spark 2000X would be towed to conduct an
Ultra High Resolution 3-dimensional (UHR3D) survey. The sparkers would
be fired sequentially such that only one is fired at a time with 0.33
seconds between shots. The sparkers would be physically spaced 25 m
apart for a total spread of 75 m. The tracklines would be similar to
those for the single sparker; however, they would be spaced a minimum
of 43.75 m apart with tielines spaced at 500 m for a shorter total
survey distance of 6,814 km.
Since either option may be used, BPW is requesting take based on
the worst-case-scenario between the two options which is Option 1 the
single Dual Geo-Spark 2000X--based on maximum total line-km.
In the ECR area, either the boomer or sparker will be used.
Regardless of which system is used, BPW plans to conduct the survey
with a minimum of 30 m line spacing and tielines spaced at 500 m
intervals in Federal waters through potential cable corridors and at a
minimum of 15 m line spacing and tielines spaced at 500 m in State
waters (to meet State requirements) for a total of 13,268 km of
combined tracklines and tielines. Because either method may be used,
BPW is requesting take based on the worst-case-scenario between the two
methods--the single Dual Geo-Spark 2000X--based on the largest
estimated distance to the harassment criterion.
BPW estimates that the surveys will complete a total of 9,923 km
survey trackline in the lease area and 13,268 km trackline in the ECR
area. Based on the maximum estimated distance to the Level B harassment
threshold of 141-m and the total survey length, the total ensonified
area is therefore 2,799 km\2\ for the lease area and 3,742 km\2\ in the
ECR area based on the following formula:
ZOI = (Total survey length x 2r) + [pi]r\2\
Where: total survey length= the total distance of the survey track
lines within the lease area and r = the maximum radial distance from
a given sound source to the Level B harassment threshold.
This is a conservative estimate as it assumes the HRG source that
results in the greatest isopleth distance to the Level B harassment
threshold would be operated at all times during the entire survey,
which may not ultimately occur and assumes the worst case scenario is
the scenario chosen for the surveys.
The number of marine mammals expected to be incidentally taken
during the total survey is then calculated by estimating the number of
each species predicted to occur within the ensonified area (animals/
km\2\), incorporating the greatest seasonal estimated marine mammal
densities as described above. The product is then rounded, to generate
an estimate of the total number of instances of harassment expected for
each species over the duration of the survey. A summary of this method
is illustrated in the following formula with the resulting take of
marine mammals shown below in Table 5:
Estimated Take = D x ZOI
Where: D = greatest average seasonal species density (per km\2\) and
ZOI = maximum daily ensonified area to relevant thresholds.
Table 5--Estimated Take Numbers and Total Take Authorized
----------------------------------------------------------------------------------------------------------------
Estimated
Species take--lease Estimated Total take Percent of
area take--ECR area authorized abundance
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale...................... 7 7 14 4.1
[[Page 13794]]
Humpback whale.................................. 21 15 36 2.6
Fin whale....................................... 61 25 86 1.3
Sei whale....................................... 12 8 20 0.32
Minke whale..................................... 96 108 204 0.93
Sperm whale..................................... 4 2 6 0.14
Long-finned pilot whale......................... 54 14 68 0.17
Bottlenose dolphin (W.N. Atlantic Offshore)..... 387 \1\ 315 702 1.1
Bottlenose dolphin (Northern Migratory Coastal). 0 \2\ 1659 1659 25
Common dolphin.................................. 3467 1267 4734 2.7
Atlantic white-sided dolphin.................... 299 134 432 0.46
Atlantic spotted dolphin........................ 167 54 221 0.55
Risso's dolphin................................. 37 15 52 0.15
Harbor porpoise................................. 657 655 1312 1.4
Harbor seal..................................... 194 985 1179 1.9
Gray seal \a\................................... 194 985 1179 0.26
----------------------------------------------------------------------------------------------------------------
\a\ This abundance estimate is the total stock abundance (including animals in Canada). The NMFS stock abundance
estimate for U.S. population is only 27,300.
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, NMFS considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost, and impact on
operations.
The following mitigation measures must be implemented during BPW's
planned marine site characterization surveys. Pursuant to section 7 of
the ESA, BPW would also be required to adhere to relevant Project
Design Criteria (PDC) of the NMFS' Greater Atlantic Regional Fisheries
Office (GARFO) programmatic consultation (specifically PDCs 4, 5, and
7) regarding geophysical surveys along the U.S. Atlantic coast (<a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>).
Visual Monitoring and Shutdown Zones
BPW 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 geophysical
surveys. Visual monitoring must be performed by qualified, NMFS-
approved PSOs. PSO resumes must be provided to NMFS for review and
approval prior to the start of survey activities.
During survey operations (e.g., any day on which use of the sparker
or boomer sources is planned to occur, and whenever the sparker or
boomer source is in the water, whether activated or not), a minimum of
one visual marine mammal observer (PSO) must be on duty on each source
vessel and conducting visual observations at all times during daylight
hours (i.e., from 30 minutes prior to sunrise through 30 minutes
following sunset). A minimum of two PSOs must be on duty on each source
vessel during nighttime hours. Visual monitoring must begin no less
than 30 minutes prior to ramp-up (described below) and must continue
until one hour after use of the sparker or boomer source ceases.
Visual PSOs shall coordinate to ensure 360[deg] visual coverage
around the vessel from the most appropriate observation posts and shall
conduct visual observations using binoculars and the naked eye while
free from distractions and in a consistent, systematic, and diligent
manner. PSOs shall establish and monitor applicable shutdown zones (see
below). These zones shall be based upon the radial distance from the
sparker or boomer source (rather than being based around the vessel
itself).
Three shutdown zones are defined, depending on the species and
context. Here, an extended shutdown zone encompassing the area at and
below the sea surface out to a radius of 500 meters from the sparker or
boomer source (0-500 meters) is defined for North Atlantic right
whales. For all other marine mammals, the shutdown zone encompasses a
standard distance of 100 meters (0-100 meters). If the boomer is used,
the shutdown zone for all non-listed marine mammals is reduced to 50
meters. Any observations of marine mammals by crew members aboard any
[[Page 13795]]
vessel associated with the survey shall be relayed to the PSO team.
Visual PSOs may be on watch for a maximum of four consecutive hours
followed by a break of at least one hour between watches and may
conduct a maximum of 12 hours of observation per 24-hour period.
Pre-Start Clearance and Ramp-up Procedures
A ramp-up procedure, involving a gradual increase in source level
output, is required at all times as part of the activation of the
sparker and boomer sources when technically feasible. Operators should
ramp up sparker and boomer to half power for 5 minutes and then proceed
to full power. A 30-minute pre-start clearance observation period must
occur prior to the start of ramp-up. The intent of the pre-start
clearance observation period (30 minutes) is to ensure no marine
mammals are within the shutdown zones prior to the beginning of ramp-
up. The intent of the ramp-up is to warn marine mammals of pending
operations and to allow sufficient time for those animals to leave the
immediate vicinity. All operators must adhere to the following pre-
start clearance and ramp-up requirements:
<bullet> The operator must notify a designated PSO of the planned
start of ramp-up as agreed upon with the lead PSO; the notification
time should not be less than 60 minutes prior to the planned ramp-up in
order to allow the PSOs time to monitor the shutdown zones for 30
minutes prior to the initiation of ramp-up (pre-start clearance).
During this 30 minute pre-start clearance period the entire shutdown
zone must be visible, except as indicated below.
<bullet> Ramp-ups shall be scheduled so as to minimize the time
spent with the source activated.
<bullet> A visual PSO conducting pre-start clearance observations
must be notified again immediately prior to initiating ramp-up
procedures and the operator must receive confirmation from the PSO to
proceed.
<bullet> Any PSO on duty has the authority to delay the start of
survey operations if a marine mammal is detected within the applicable
pre-start clearance zone.
<bullet> The operator must establish and maintain clear lines of
communication directly between PSOs on duty and crew controlling the
acoustic source to ensure that mitigation commands are conveyed swiftly
while allowing PSOs to maintain watch.
<bullet> The pre-start clearance requirement is waived for small
delphinids and pinnipeds. Detection of a small delphinid (individual
belonging to the following genera of the Family Delphinidae: Steno,
Delphinus, Lagenorhynchus, Stenella, and Tursiops) or pinniped within
the shutdown zone does not preclude beginning of ramp-up, unless the
PSO confirms the individual to be of a genus other than those listed,
in which case normal pre-clearance requirements apply.
<bullet> 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 the pre-clearance
requirement is waived), PSOs may use best professional judgment in
making the decision to call for a shutdown.
<bullet> Ramp-up may not be initiated if any marine mammal to which
the pre-start clearance requirement applies is within the shutdown
zone. If a marine mammal is observed within the shutdown zone during
the 30 minute pre-start clearance period, ramp-up may not begin until
the animal(s) has been observed exiting the zones or until an
additional time period has elapsed with no further sightings (30
minutes for all baleen whale species and sperm whales and 15 minutes
for all other species).
<bullet> PSOs must monitor the shutdown zones 30 minutes before and
during ramp-up, and ramp-up must cease and the source must be shut down
upon observation of a marine mammal within the applicable shutdown
zone.
<bullet> Ramp-up may occur at times of poor visibility, including
nighttime, if appropriate visual monitoring has occurred with no
detections of marine mammals in the 30 minutes prior to beginning ramp-
up. Sparker or boomer activation may only occur at night where
operational planning cannot reasonably avoid such circumstances.
<bullet> If the acoustic source is shut down for brief periods
(i.e., less than 30 minutes) for reasons other than implementation of
prescribed mitigation (e.g., mechanical difficulty), it may be
activated again without ramp-up if PSOs have maintained constant visual
observation and no detections of marine mammals have occurred within
the applicable shutdown zone. For any longer shutdown, pre-start
clearance observation and ramp-up are required.
Shutdown Procedures
All operators must adhere to the following shutdown requirements:
<bullet> Any PSO on duty has the authority to call for shutdown of
the sparker or boomer source if a marine mammal is detected within the
applicable shutdown zone.
<bullet> The operator must establish and maintain clear lines of
communication directly between PSOs on duty and crew controlling the
source to ensure that shutdown commands are conveyed swiftly while
allowing PSOs to maintain watch.
<bullet> When the sparker or boomer source is active and a marine
mammal appears within or enters the applicable shutdown zone, the
source must be shut down. When shutdown is instructed by a PSO, the
sparker or boomer source must be immediately deactivated and any
dispute resolved only following deactivation.
<bullet> The shutdown requirement is waived for small delphinids
and pinnipeds. If a small delphinid (individual belonging to the
following genera of the Family Delphinidae: Steno, Delphinus,
Lagenorhynchus, Stenella, and Tursiops) or pinniped is visually
detected within the shutdown zone, no shutdown is required unless the
PSO confirms the individual to be of a genus other than those listed,
in which case a shutdown is required.
<bullet> 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 or
one of the species with a larger shutdown zone), PSOs may use best
professional judgment in making the decision to call for a shutdown.
<bullet> Upon implementation of shutdown, the source may be
reactivated after the marine mammal has been observed exiting the
applicable shutdown zone or following a clearance period (30 minutes
for all baleen whale species and sperm whales and 15 minutes for all
other species) with no further detection of the marine mammal.
If a species for which authorization has not been granted, or a
species for which authorization has been granted but the authorized
number of takes have been met, approaches or is observed within the
Level B harassment zone, shutdown would occur.
Vessel Strike Avoidance
Crew and supply vessel personnel should use an appropriate
reference guide that includes identifying information on all marine
mammals that may be encountered. Vessel operators must comply with the
below measures except under extraordinary circumstances when the safety
of the vessel or crew is in doubt or the safety of life at sea is in
question. These requirements do not apply in any case where compliance
would create an imminent and serious threat to a person or vessel or to
the extent that a vessel
[[Page 13796]]
is restricted in its ability to maneuver and, because of the
restriction, cannot comply.
<bullet> Vessel operators and crews must maintain a vigilant watch
for all marine mammals and slow down, stop their vessel(s), or alter
course, as appropriate and regardless of vessel size, to avoid striking
any marine mammals. A single marine mammal at the surface may indicate
the presence of submerged animals in the vicinity of the vessel;
therefore, precautionary measures should always be exercised. A visual
observer aboard the vessel must monitor a vessel strike avoidance zone
around the vessel (species-specific distances are detailed 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 marine mammal from other phenomena and (2) broadly to
identify a marine mammal as a North Atlantic right whales, other whale
(defined in this context as sperm whales or baleen whales other than
North Atlantic right whales), or other marine mammals.
<bullet> All survey vessels, regardless of size, must observe a 10-
knot speed restriction in specific areas designated by NMFS for the
protection of North Atlantic right whales from vessel strikes. These
include all Seasonal Management Areas (SMA) established under 50 CFR
224.105 (when in effect), any dynamic management areas (DMA) (when in
effect), and Slow Zones. See <a href="http://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales">www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales</a> for specific detail regarding these areas.
<bullet> All vessels must reduce speed to 10 knots or less when
mother/calf pairs, pods, or large assemblages of cetaceans are observed
near a vessel.
<bullet> All vessels must maintain a minimum separation distance of
500 m from North Atlantic right whales. If a North Atlantic right whale
is sighted within the relevant separation distance, the vessel must
steer a course away at 10 kn (18.5 km/hour) or less until the 500-m
separation distance has been established. If a whale is observed but
cannot be confirmed as a species other than a North Atlantic right
whales, the vessel operator must assume that it is a North Atlantic
right whales and take appropriate action.
<bullet> All vessels must maintain a minimum separation distance of
100 m from sperm whales and all other baleen 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, reduce speed and shift
the engine to neutral). This does not apply to any vessel towing gear
or any vessel that is navigationally constrained.
Members of the PSO team will consult NMFS North Atlantic right
whales reporting system and Whale Alert, daily and as able, for the
presence of North Atlantic right whales throughout survey operations,
and for the establishment of DMAs and/or Slow Zones. It is BPW's
responsibility to maintain awareness of the establishment and location
of any such areas and to abide by these requirements accordingly.
Seasonal Operating Requirements
As described above, a section of the survey area partially overlaps
with a portion of a North Atlantic right whales SMA off the port of New
York/New Jersey. This SMA is active from November 1 through April 30 of
each year. The survey vessel, regardless of length, would be required
to adhere to vessel speed restrictions (<10 kn (18.5 km/hour)) when
operating within the SMA during times when the SMA is active.
Table 6--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
Restrictions Within The Survey Areas
----------------------------------------------------------------------------------------------------------------
Survey area Species DMA restrictions Slow zones SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area...................... North Atlantic If established by NMFS, all of BPW's N/A.
ECR North....................... right whale vessel will abide by the described November 1 through
ECR South....................... (Eubalaena restrictions July 31 (Raritan
glacialis). Bay).
N/A.
----------------------------------------------------------------------------------------------------------------
More information on Ship Strike Reduction for the North Atlantic right whales can be found at NMFS' website:
<a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales">https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales</a>.
Based on our evaluation of the applicant's measures, as well as
other measures considered by NMFS, NMFS has determined that the
mitigation measures provide the means of effecting the least
practicable impact on the affected species or stocks and their habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance.
Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the activity; or (4) biological or
behavioral
[[Page 13797]]
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
BPW must use independent, dedicated, trained PSOs, meaning that the
PSOs must be employed by a third-party observer provider, must have no
tasks other than to conduct observational effort, collect data, and
communicate with and instruct relevant vessel crew with regard to the
presence of marine mammal and mitigation requirements (including brief
alerts regarding maritime hazards), and must have successfully
completed an approved PSO training course for geophysical surveys.
Visual monitoring must be performed by qualified, NMFS-approved PSOs.
PSO resumes must be provided to NMFS for review and approval prior to
the start of survey activities.
PSO names must be provided to NMFS by the operator for review and
confirmation of their approval for specific roles prior to commencement
of the survey. For prospective PSOs not previously approved, or for
PSOs whose approval is not current, NMFS must review and approve PSO
qualifications. Resumes should include information related to relevant
education, experience, and training, including dates, duration,
location, and description of prior PSO experience. Resumes must be
accompanied by relevant documentation of successful completion of
necessary training.
NMFS may approve PSOs as conditional or unconditional. A
conditionally-approved PSO may be one who is trained but has not yet
attained the requisite experience. An unconditionally-approved PSO is
one who has attained the necessary experience. For unconditional
approval, the PSO must have a minimum of 90 days at sea performing the
role during a geophysical survey, with the conclusion of the most
recent relevant experience not more than 18 months previous.
At least one of the visual PSOs aboard the vessel must be
unconditionally-approved. One unconditionally-approved visual PSO shall
be designated as the lead for the entire PSO team. This lead should
typically be the PSO with the most experience, who would coordinate
duty schedules and roles for the PSO team and serve as primary point of
contact for the vessel operator. To the maximum extent practicable, the
duty schedule shall be planned such that unconditionally-approved PSOs
are on duty with conditionally-approved PSOs.
At least one PSO aboard each acoustic source vessel must have a
minimum of 90 days at-sea experience working in the role, with no more
than eighteen months elapsed since the conclusion of the at-sea
experience. One PSO with such experience must be designated as the lead
for the entire PSO team and serve as the primary point of contact for
the vessel operator. (Note that the responsibility of coordinating duty
schedules and roles may instead be assigned to a shore-based, third-
party monitoring coordinator.) To the maximum extent practicable, the
lead PSO must devise the duty schedule such that experienced PSOs are
on duty with those PSOs with appropriate training but who have not yet
gained relevant experience.
PSOs must successfully complete relevant training, including
completion of all required coursework and passing (80 percent or
greater) a written and/or oral examination developed for the training
program.
PSOs must have successfully attained a bachelor's degree from an
accredited college or university with a major in one of the natural
sciences, a minimum of 30 semester hours or equivalent in the
biological sciences, and at least one undergraduate course in math or
statistics. The educational requirements may be waived if the PSO has
acquired the relevant skills through alternate experience. Requests for
such a waiver shall be submitted to NMFS and must include written
justification. Alternate experience that may be considered includes,
but is not limited to (1) secondary education and/or experience
comparable to PSO duties; (2) previous work experience conducting
academic, commercial, or government-sponsored marine mammal surveys;
and (3) previous work experience as a PSO (PSO must be in good standing
and demonstrate good performance of PSO duties).
BPW must work with the selected third-party PSO provider to ensure
PSOs have all equipment (including backup equipment) needed to
adequately perform necessary tasks, including accurate determination of
distance and bearing to observed marine mammals, and to ensure that
PSOs are capable of calibrating equipment as necessary for accurate
distance estimates and species identification. Such equipment, at a
minimum, shall include:
<bullet> At least one thermal (infrared) imagine device suited for
the marine environment;
<bullet> Reticle binoculars (e.g., 7 x 50) of appropriate quality
(at least one per PSO, plus backups);
<bullet> Global Positioning Units (GPS) (at least one plus
backups);
<bullet> Digital cameras with a telephoto lens that is at least
300-mm or equivalent on a full-frame single lens reflex (SLR) (at least
one plus backups). The camera or lens should also have an image
stabilization system;
<bullet> Equipment necessary for accurate measurement of distances
to marine mammal;
<bullet> Compasses (at least one plus backups);
<bullet> Means of communication among vessel crew and PSOs; and
<bullet> Any other tools deemed necessary to adequately and
effectively perform PSO tasks.
The equipment specified above may be provided by an individual PSO,
the third-party PSO provider, or the operator, but BPW is responsible
for ensuring PSOs have the proper equipment required to perform the
duties specified in the IHA.
The PSOs will be responsible for monitoring the waters surrounding
the 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 PSO(s) on duty to
communicate the presence of marine mammals as well as to communicate
the action(s) that are necessary to ensure mitigation and monitoring
requirements are implemented as appropriate.
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
[[Page 13798]]
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 the 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 (see Reporting Measures). 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). Members of the PSO team shall consult the NMFS North
Atlantic right whales reporting system and Whale Alert, daily and as
able, for the presence of North Atlantic right whales throughout survey
operations.
Reporting Measures
BPW shall submit a draft comprehensive report to NMFS on all
activities and monitoring results within 90 days of the completion of
the survey or expiration of the IHA, whichever comes sooner. The report
must describe all activities conducted and sightings of marine mammals,
must provide full documentation of methods, results, and interpretation
pertaining to all monitoring, and must summarize the dates and
locations of survey operations and all marine mammals sightings (dates,
times, locations, activities, associated survey activities). The draft
report shall also include geo-referenced, time-stamped vessel
tracklines for all time periods during which acoustic sources were
operating. Tracklines should include points recording any change in
acoustic source status (e.g., when the sources began operating, when
they were turned off, or when they changed operational status such as
from full array to single gun or vice versa). GIS files shall be
provided in Environmental Systems Research Institute, Inc (ESRI)
shapefile format and include the Coordinated Universal Time (UTC) date
and time, latitude in decimal degrees, and longitude in decimal
degrees. All coordinates shall be referenced to the WGS84 geographic
coordinate system. In addition to the report, all raw observational
data shall be made available. The report must summarize the
information. 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
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<a href="/cdn-cgi/l/email-protection#88c1dcd8a6c0e9fae4e9ebe0edfac8e6e7e9e9a6efe7fe"><span class="__cf_email__" data-cfemail="a6eff2f688eec7d4cac7c5cec3d4e6c8c9c7c788c1c9d0">[email protected]</span></a>.
PSOs must use standardized electronic data forms to record data.
PSOs shall record detailed information about any implementation of
mitigation requirements, including the distance of marine mammal to the
acoustic source and description of specific actions that ensued, the
behavior of the animal(s), any observed changes in behavior before and
after implementation of mitigation, and if shutdown was implemented,
the length of time before any subsequent ramp-up of the acoustic
source. If required mitigation was not implemented, PSOs should record
a description of the circumstances. At a minimum, the following
information must be recorded:
1. Vessel names (source vessel), vessel size and type, maximum
speed capability of vessel;
2. Dates of departures and returns to port with port name;
3. PSO names and affiliations;
4. Date and participants of PSO briefings;
5. Visual monitoring equipment used;
6. PSO location on vessel and height of observation location above
water surface;
7. Dates and times (Greenwich Mean Time) of survey on/off effort
and times corresponding with PSO on/off effort;
8. Vessel location (decimal degrees) when survey effort begins and
ends and vessel location at beginning and end of visual PSO duty
shifts;
9. Vessel location at 30-second intervals if obtainable from data
collection software, otherwise at practical regular interval;
10. Vessel heading and speed at beginning and end of visual PSO
duty shifts and upon any change;
11. Water depth (if obtainable from data collection software);
12. Environmental conditions while on visual survey (at beginning
and end of PSO shift and whenever conditions change significantly),
including BSS and any other relevant weather conditions including cloud
cover, fog, sun glare, and overall visibility to the horizon;
13. Factors that may contribute to impaired observations during
each PSO shift change or as needed as environmental conditions change
(e.g., vessel traffic, equipment malfunctions); and
14. Survey activity information (and changes thereof), such as
acoustic source power output while in operation, number and volume of
airguns operating in an array, tow depth of an acoustic source, and any
other notes of significance (i.e., pre-start clearance, ramp-up,
shutdown, testing, shooting, ramp-up completion, end of operations,
streamers, etc.).
15. Upon visual observation of any marine mammal, the following
information must be recorded:
a. Watch status (sighting made by PSO on/off effort, opportunistic,
crew, alternate vessel/platform);
b. Vessel/survey activity at time of sighting (e.g., deploying,
recovering, testing, shooting, data acquisition, other);
c. PSO who sighted the animal;
d. Time of sighting;
e. Initial detection method;
f. Sightings cue;
g. Vessel location at time of sighting (decimal degrees);
h. Direction of vessel's travel (compass direction);
i. Speed of the vessel(s) from which the observation was made;
j. 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;
k. Species reliability (an indicator of confidence in
identification);
l. Estimated distance to the animal and method of estimating
distance;
m. Estimated number of animals (high/low/best);
n. Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
o. 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);
p. Detailed behavior observations (e.g., number of blows/breaths,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior before and after point of closest approach);
q. Mitigation actions; description of any actions implemented in
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or
course alteration, etc.) and time and location of the action;
r. Equipment operating during sighting;
s. Animal's closest point of approach and/or closest distance from
the center point of the acoustic source; and
[[Page 13799]]
t. Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up) and time and location of the
action.
If a North Atlantic right whales is observed at any time by PSOs or
personnel on the project vessel, during surveys or during vessel
transit, BPW must report the sighting information to the NMFS North
Atlantic right whales Sighting Advisory System (866-755-6622) within 2
hours of occurrence, when practicable, or no later than 24 hours after
occurrence. North Atlantic right whales sightings in any location may
also be reported to the U.S. Coast Guard via channel 16 and through the
WhaleAlert app (<a href="http://www.whalealert.org">http://www.whalealert.org</a>).
In the event that personnel involved in the survey activities
discover an injured or dead marine mammal, the incident must be
reported to NMFS as soon as feasible by phone (866-755-6622) and by
email (<a href="/cdn-cgi/l/email-protection#d3bdbeb5a0fdb4b2a1fda0a7a1b2bdb7babdb493bdbcb2b2fdb4bca5"><span class="__cf_email__" data-cfemail="1b75767d68357c7a6935686f697a757f72757c5b75747a7a357c746d">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#48181a66011c1866052726213c273a21262f1a2d38273a3c3b0826272929662f273e"><span class="__cf_email__" data-cfemail="aafaf884e3fefa84e7c5c4c3dec5d8c3c4cdf8cfdac5d8ded9eac4c5cbcb84cdc5dc">[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 event of a ship strike of a marine mammal by any vessel
involved in the activities, BPW must report the incident to NMFS by
phone (866-755-6622) and by email (<a href="/cdn-cgi/l/email-protection#204e4d46530e4741520e535452414e44494e47604e4f41410e474f56"><span class="__cf_email__" data-cfemail="8fe1e2e9fca1e8eefda1fcfbfdeee1ebe6e1e8cfe1e0eeeea1e8e0f9">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#a2f2f08cebf6f28cefcdcccbd6cdd0cbccc5f0c7d2cdd0d6d1e2cccdc3c38cc5cdd4"><span class="__cf_email__" data-cfemail="da8a88f4938e8af497b5b4b3aeb5a8b3b4bd88bfaab5a8aea99ab4b5bbbbf4bdb5ac">[email protected]</span></a>) as soon as feasible. The report
would include the following information:
1. Time, date, and location (latitude/longitude) of the incident;
2. Species identification (if known) or description of the
animal(s) involved;
3. Vessel's speed during and leading up to the incident;
4. Vessel's course/heading and what operations were being conducted
(if applicable);
5. Status of all sound sources in use;
6. Description of avoidance measures/requirements that were in
place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
7. Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
8. Estimated size and length of animal that was struck;
9. Description of the behavior of the marine mammal immediately
preceding and/or following the strike;
10. If available, description of the presence and behavior of any
other marine mammals immediately preceding the strike;
11. Estimated fate of the animal (e.g., dead, injured but alive,
injured and moving, blood or tissue observed in the water, status
unknown, disappeared); and
12. To the extent practicable, photographs or video footage of the
animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338;
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, or ambient noise levels).
To avoid repetition, the majority of our analysis applies to all
the species listed in Table 1, given that some of the anticipated
effects of this project on different marine mammal stocks are expected
to be relatively similar in nature. Where there are meaningful
differences between species or stocks, or groups of species, in
anticipated individual responses to activities, impact of expected take
on the population due to differences in population status, or impacts
on habitat, they are included as separate subsections below.
Specifically, we provide additional discussion related to North
Atlantic right whales and to other species currently experiencing UMEs.
NMFS does not anticipate that serious injury or mortality would
occur as a result from HRG surveys, even in the absence of mitigation,
and no serious injury or mortality is authorized. As discussed in the
Potential Effects of Specified Activities on Marine Mammals and their
Habitat section, non-auditory physical effects, auditory physical
effects, and vessel strike are not expected to occur. NMFS expects that
all potential takes would be in the form of Level B 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; Ellison et al., 2012).
In addition to being temporary, the maximum expected harassment
zone around a survey vessel is 141-m. Therefore, the ensonified area
surrounding each vessel is relatively small compared to the overall
distribution of the animals in the area and their use of the habitat.
Feeding behavior is not likely to be significantly impacted as prey
species are mobile and are broadly distributed throughout the survey
area; therefore, marine mammals that may be temporarily displaced
during survey activities are expected to be able to resume foraging
once they have moved away from areas with disturbing levels of
underwater noise. Because of the temporary nature of the disturbance
and the availability of similar habitat and resources in the
surrounding area, the impacts to marine mammals and the food sources
that they utilize are not expected to cause significant or long-term
consequences for individual marine mammals or their populations.
There are no rookeries, mating or calving grounds known to be
biologically important to marine mammals within the planned survey area
and there are no feeding areas known to be biologically important to
marine mammals within the survey area. There is no designated critical
habitat for any ESA-listed marine mammals in the survey area.
[[Page 13800]]
North Atlantic Right Whales
The status of the North Atlantic right whale population is of
heightened concern and, therefore, merits additional analysis. As noted
previously, elevated North Atlantic right whales mortalities began in
June 2017 and there is an active UME. Overall, preliminary findings
attribute human interactions, specifically vessel strikes and
entanglements, as the cause of death for the majority of North Atlantic
right whales. As noted previously, the survey area overlaps a migratory
corridor BIA for North Atlantic right whales that extends from
Massachusetts to Florida and from the coast to beyond the shelf break.
Due to the fact that the planned survey activities are temporary (will
occur for up to one year) and the spatial extent of sound produced by
the survey would be small relative to the spatial extent of the
available migratory habitat in the BIA, North Atlantic right whale
migration is not expected to be impacted by the survey. This important
migratory area is approximately 269,488 km\2\ in size (compared with
the worst case scenario of approximately 6,541 km\2\ of total estimated
Level B harassment ensonified area associated with both the Lease Area
and the ECR area surveys) and is comprised of the waters of the
continental shelf offshore the East Coast of the United States,
extending from Florida through Massachusetts.
Given the relatively small size of the ensonified area, it is
unlikely that prey availability would be adversely affected by HRG
survey operations. Required vessel strike avoidance measures will also
decrease risk of ship strike during migration; no ship strike is
expected to occur during BPW's planned activities. Additionally, only
very limited take by Level B harassment of North Atlantic right whales
has been requested and is being authorized by NMFS as HRG survey
operations are required to maintain and implement a 500 m shutdown
zone. The 500-m shutdown zone for North Atlantic right whales is
conservative, considering the Level B harassment isopleth for the most
impactful acoustic source (i.e., sparker) is estimated to be 141-m, and
thereby minimizes the potential for behavioral harassment of this
species. As noted previously, Level A harassment is not expected due to
the small estimated zones in conjunction with the aforementioned
shutdown requirements. NMFS does not anticipate North Atlantic right
whales takes that would result from BPW's planned activities would
impact annual rates of recruitment or survival. Thus, any takes that
occur would not result in population level impacts.
Other Marine Mammal Species With Active UMEs
As noted previously, there are several active UMEs occurring in the
vicinity of BPW's survey area. Elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine through Florida since
January 2016. Of the cases examined, approximately half had evidence of
human interaction (ship strike or entanglement). The UME does not yet
provide cause for concern regarding population-level impacts. Despite
the UME, the relevant population of humpback whales (the West Indies
breeding population, or DPS) remains stable at approximately 12,000
individuals.
Beginning in January 2017, elevated minke whale strandings have
occurred along the Atlantic coast from Maine through South Carolina,
with highest numbers in Massachusetts, Maine, and New York. This event
does not provide cause for concern regarding population level impacts,
as the likely population abundance is greater than 20,000 whales.
Elevated numbers of harbor seal and gray seal mortalities were
first observed between 2018-2020 and, as part of a separate UME, again
in 2022. These have occurred across Maine, New Hampshire, and
Massachusetts. Based on tests conducted so far, the main pathogen found
in the seals is phocine distemper virus (2018-2020) and avian influenza
(2022), although additional testing to identify other factors that may
be involved in the UMEs is underway. The UMEs do not provide cause for
concern regarding population-level impacts to any of these stocks. For
harbor seals, the population abundance is over 60,000 and annual M/SI
(339) is well below PBR (1,729) (Hayes et al., 2021). The population
abundance for gray seals in the United States is over 27,000, with an
estimated abundance, including seals in Canada, of approximately
450,000. In addition, the abundance of gray seals is likely increasing
in the U.S. Atlantic as well as in Canada (Hayes et al., 2021).
The required mitigation measures are expected to reduce the number
and/or severity of takes for all species listed in Table 1, including
those with active UMEs, to the level of least practicable adverse
impact. In particular, they would provide animals the opportunity to
move away from the sound source before HRG survey equipment reaches
full energy, thus preventing them from being exposed to sound levels
that have the potential to cause injury. No Level A harassment is
anticipated, even in the absence of mitigation measures, or authorized.
NMFS expects that takes would be in the form of short-term Level B
harassment by way of brief startling reactions and/or temporary
vacating of the area, or decreased foraging (if such activity was
occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals would only be exposed briefly to a small ensonified area that
might result in take. Additionally, required mitigation measures would
further reduce exposure to sound that could result in more severe
behavioral harassment.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect any of the species or stocks
through effects on annual rates of recruitment or survival:
<bullet> No serious injury or mortality is anticipated or
authorized;
<bullet> No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, 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 ensonified areas
during the planned survey to avoid exposure to sounds from the
activity;
<bullet> Take is anticipated to be by Level B harassment only
consisting of brief startling reactions and/or temporary avoidance of
the ensonified area;
<bullet> Survey activities would occur in such a comparatively
small portion of the BIA for North Atlantic right whale migration that
any avoidance of the area due to survey activities would not affect
migration. In addition, mitigation measures require shutdown at 500 m
(almost four times the size of the Level B harassment isopleth of 141
m) to minimize the effects of any Level B harassment take of the
species; and
<bullet> The mitigation measures, including visual monitoring and
shutdowns are expected to minimize potential impacts to marine mammals.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the monitoring and mitigation
measures,
[[Page 13801]]
NMFS finds that the total marine mammal take from the activity will
have a negligible impact on all affected marine mammal species or
stocks.
Small Numbers
As noted previously, only take of small numbers of marine mammals
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
NMFS authorizes incidental take by Level B harassment only of 15
marine mammal species with 16 managed stocks. The total amount of takes
authorized relative to the best available population abundance is less
than 5 percent for 15 stocks and 25 percent for the remaining stock
(Western North Atlantic Migratory Coastal Stock of Bottlenose dolphins)
(Table 5). The take numbers authorized are considered conservative
estimates for purposes of the small numbers determination as they
assume all takes represent different individual animals, which is
unlikely to be the case.
Based on the analysis contained herein of the planned 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 consults internally whenever we propose to authorize take for
endangered or threatened species.
NMFS Office of Protected Resources (OPR) has authorized take of
four species of marine mammals which are listed under the ESA,
including the North Atlantic right, fin, sei, and sperm whale, and has
determined that these activities fall within the scope of activities
analyzed in NMFS Greater Atlantic Regional Fisheries Office's (GARFO)
programmatic consultation regarding geophysical surveys along the U.S.
Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021).
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 proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has determined
that the issuance of the IHA qualifies to be categorically excluded
from further NEPA review.
Authorization
As a result of these determinations, NMFS has issued an IHA to BPW
for conducting marine site characterization surveys in coastal waters
off of New York and New Jersey in the New York Bight for a period of 1
year, provided the previously mentioned mitigation, monitoring, and
reporting requirements are incorporated. The IHA can be found at:
<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-bluepoint-wind-llc-marine-site-characterization-surveys-new">https://www.fisheries.noaa.gov/action/incidental-take-authorization-bluepoint-wind-llc-marine-site-characterization-surveys-new</a>.
Dated: February 28, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-04445 Filed 3-3-23; 8:45 am]
BILLING CODE 3510-22-P
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