Notice2023-09947
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off the Coast of Delaware
Primary source
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Published
May 11, 2023
Effective
May 10, 2023
Issuing agencies
Commerce DepartmentNational Oceanic and Atmospheric Administration
Abstract
NMFS has received a request from [Oslash]rsted Wind Power North America, LLC ([Oslash]rsted) and its designees, Garden State Offshore Energy, LLC (Garden State) and Skipjack Offshore Energy, LLC (Skipjack), for the re-issuance of a previously issued incidental harassment authorization (IHA) with the only change being effective dates. The initial IHA authorized take of marine mammals incidental to marine site characterization surveys in coastal waters off of Delaware and New Jersey. The project has been delayed and none of the work covered in the initial IHA has been conducted. The scope of the activities and anticipated effects remain the same, authorized take numbers are not changed, and the required mitigation, monitoring, and reporting remains the same as included in the initial IHA. NMFS is, therefore, issuing a second identical IHA to cover the incidental take analyzed and authorized in the initial IHA.
Full Text
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<title>Federal Register, Volume 88 Issue 91 (Thursday, May 11, 2023)</title>
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[Federal Register Volume 88, Number 91 (Thursday, May 11, 2023)]
[Notices]
[Pages 30278-30280]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-09947]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC892]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Off the Coast of Delaware
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of incidental harassment authorization.
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SUMMARY: NMFS has received a request from [Oslash]rsted Wind Power
North America, LLC ([Oslash]rsted) and its designees, Garden State
Offshore Energy, LLC (Garden State) and Skipjack Offshore Energy, LLC
(Skipjack), for the re-issuance of a previously issued incidental
harassment authorization (IHA) with the only change being effective
dates. The initial IHA authorized take of marine mammals incidental to
marine site characterization surveys in coastal waters off of Delaware
and New Jersey. The project has been delayed and none of the work
covered in the initial IHA has been conducted. The scope of the
activities and anticipated effects remain the same, authorized take
numbers are not changed, and the required mitigation, monitoring, and
reporting remains the same as included in the initial IHA. NMFS is,
therefore, issuing a second identical IHA to cover the incidental take
analyzed and authorized in the initial IHA.
DATES: This authorization is effective from May 10, 2023, through May
9, 2024. The initial IHA was effective from May 10, 2022, through May
9, 2023. [Oslash]rsted has requested issuance with new effective dates
of May 10, 2023, through May 9, 2024.
ADDRESSES: An electronic copy of the final 2022 IHA previously issued
to [Oslash]rsted, [Oslash]rsted's application, and the Federal Register
notices proposing and issuing the initial IHA may be obtained by
visiting <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-marine-site">https://www.fisheries.noaa.gov/action/incidental-take-authorization-orsted-wind-power-north-america-llc-marine-site</a>. In case
of problems accessing these documents, please call the contact listed
below (see FOR FURTHER INFORMATION CONTACT).
FOR FURTHER INFORMATION CONTACT: Alyssa Clevenstine, Office of
Protected Resources, NMFS, (301) 427-8401.
SUPPLEMENTARY INFORMATION:
Background
Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act
(MMPA; 16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as
delegated to NMFS) to allow, upon request, the incidental, but not
intentional, taking of small numbers of marine mammals by U.S. citizens
who engage in a specified activity (other than commercial fishing)
within a specified geographical region if certain findings are made and
either regulations are issued or, if the taking is limited to
harassment, a notice of a proposed authorization is provided to the
public for review.
An authorization for incidental takings shall be granted if NMFS
finds that the taking will have a negligible impact on the species or
stock(s), will not have an unmitigable adverse impact on the
availability of the species or stock(s) for subsistence uses (where
relevant), and if the permissible methods of taking and requirements
pertaining to the mitigation, monitoring, and reporting of such takings
are set forth.
NMFS has defined ``negligible impact'' in 50 CFR 216.103 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.
[[Page 30279]]
The MMPA states that the term ``take'' means to harass, hunt,
capture, kill or attempt to harass, hunt, capture, or kill any marine
mammal.
Except with respect to certain activities not pertinent here, 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).
Summary of Request
On September 16, 2021, NMFS published final notice of our issuance
of an IHA authorizing take of 16 species of marine mammals incidental
to marine site characterization surveys in coastal waters off of
Delaware in the areas of the Bureau of Ocean Energy Management (BOEM)
Commercial Lease of Submerged Lands for Renewable Energy Development on
the Outer Continental Shelf (OCS)-A 0482 and 0519 and along potential
export cable routes to landfall locations in Delaware and New Jersey
(87 FR 30182). The effective dates of that IHA were May 10, 2022,
through May 9, 2023. On February 23, 2023, [Oslash]rsted informed NMFS
that the project was delayed. None of the work identified in the
initial IHA (i.e., geophysical, geotechnical, and geohazard data
collection) has occurred. [Oslash]rsted submitted a request to re-issue
the IHA, which would be effective from May 10, 2023, through May 9,
2024, in order to conduct the marine site characterization survey work
that was analyzed and authorized through the previously issued IHA.
Summary of Specified Activity and Anticipated Impacts
The planned activities (including mitigation, monitoring, and
reporting), authorized incidental take, and anticipated impacts on the
affected stocks are the same as those analyzed and authorized through
the previously issued IHA.
As part of their overall marine site characterization survey
operations, [Oslash]rsted plans to conduct high-resolution geophysical
(HRG) and geotechnical surveys in Lease Areas OCS-A 0482 and 0519, and
the associated export cable route areas. The purpose of the marine site
characterization surveys is to collect data concerning seabed
(geophysical, geotechnical, and geohazard), ecological, and
archeological conditions within the footprint of offshore wind facility
development. Surveys are also conducted to support engineering design
and to map Unexploded Ordnance (UXO).
The location, timing, and nature of the activities, including the
types of equipment planned for use, are identical to those described
for the initial IHA. The mitigation and monitoring are also as
prescribed in the initial IHA.
Species that have the potential to be taken by the planned
activities can be found in the initial 2022 Federal Register notices
(87 FR 15922; 87 FR 30182). A description of the methods and inputs
used to estimate take anticipated to occur and, ultimately, the take
that was authorized is found in the previous documents referenced
above. NMFS has reviewed recent Stock Assessment Reports, information
on relevant Unusual Mortality Events, and recent scientific literature,
and determined that no new information affects our original analysis of
impacts under the initial IHA.
We refer to the documents related to the previously issued IHA,
which include the Federal Register notice of the issuance of the
initial 2022 IHA for [Oslash]rsted's construction work (87 FR 30182),
[Oslash]rsted's application, the Federal Register notice of the
proposed IHA (87 FR 15922), and all associated references and
documents.
On August 1, 2022, NMFS announced proposed changes to the existing
NARW vessel speed regulations to further reduce the likelihood of
mortalities and serious injuries to endangered NARWs from vessel
collisions, which are a leading cause of the species' decline and a
primary factor in an ongoing Unusual Mortality Event (87 FR 46921).
Should a final vessel speed rule be issued and become effective during
the effective period of this IHA (or any other MMPA incidental take
authorization), the authorization holder would be required to comply
with any and all applicable requirements contained within the final
rule. Specifically, where measures in any final vessel speed rule are
more protective or restrictive than those in this or any other MMPA
authorization, authorization holders would be required to comply with
the requirements of the rule. Alternatively, where measures in this or
any other MMPA authorization are more restrictive or protective than
those in any final vessel speed rule, the measures in the MMPA
authorization would remain in place. The responsibility to comply with
the applicable requirements of any vessel speed rule would become
effective immediately upon the effective date of any final vessel speed
rule and, when notice is published of the effective date, NMFS would
also notify COSW if the measures in the speed rule were to supersede
any of the measures in the MMPA authorization such that they were no
longer applicable.
Determinations
[Oslash]rsted will conduct activities as analyzed in the initial
2022 IHA. As described above, the number of authorized takes of the
same species and stocks of marine mammals are identical to the numbers
that were found to meet the negligible impact and small numbers
standards and authorized under the initial IHA and no new information
has emerged that would change those findings. The issued 2023 IHA
includes identical required mitigation, monitoring, and reporting
measures as the initial IHA, and there is no new information suggesting
that our analysis or findings should change.
Based on the information contained here and in the referenced
documents, NMFS has determined the following: (1) the required
mitigation measures will effect the least practicable impact on marine
mammal species or stocks and their habitat; (2) the authorized takes
will have a negligible impact on the affected marine mammal species or
stocks; (3) the authorized takes represent small numbers of marine
mammals relative to the affected stock abundances; and (4)
[Oslash]rsted's activities will not have an unmitigable adverse impact
on taking for subsistence purposes as no relevant subsistence uses of
marine mammals are implicated by this action.
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 with respect to environmental
consequences on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (incidental take authorizations 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 determined that the issuance of the
initial IHA qualified to be categorically excluded from further NEPA
review.
[[Page 30280]]
NMFS has determined that the application of this categorical exclusion
remains appropriate for this IHA.
Endangered Species Act (ESA)
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 previously determined that
issuance of the initial 2022 IHA falls within the scope of activities
analyzed in NMFS Greater Atlantic Regional Fisheries Office's
programmatic consultation regarding geophysical surveys along the U.S.
Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021).
Authorization
NMFS has issued an IHA to [Oslash]rsted for marine site
characterization survey activities associated with the specified
activity from May 10, 2023, through May 9, 2024. All previously
described mitigation, monitoring, and reporting requirements from the
initial 2022 IHA are incorporated.
Dated: May 5, 2023.
Kimberley Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-09947 Filed 5-10-23; 8:45 am]
BILLING CODE 3510-22-P
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</html>Indexed from Federal Register on May 11, 2023.
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