Notice2023-10592
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to SouthCoast Wind Energy, LLC's Marine Site Characterization Surveys Off Massachusetts and Rhode Island
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
May 18, 2023
Effective
May 12, 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 SouthCoast Wind Energy, LLC (SouthCoast Wind; formerly known as Mayflower Wind Energy, LLC) to incidentally harass marine mammals during marine site characterization surveys off Massachusetts and Rhode Island.
Full Text
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<title>Federal Register, Volume 88 Issue 96 (Thursday, May 18, 2023)</title>
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[Federal Register Volume 88, Number 96 (Thursday, May 18, 2023)]
[Notices]
[Pages 31678-31692]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-10592]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC954]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to SouthCoast Wind Energy, LLC's
Marine Site Characterization Surveys Off Massachusetts and Rhode Island
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
SouthCoast Wind Energy, LLC (SouthCoast Wind; formerly known as
Mayflower Wind Energy, LLC) to incidentally harass marine mammals
during marine site characterization surveys off Massachusetts and Rhode
Island.
DATES: This Authorization is effective from May 12, 2023 through May
11, 2024.
FOR FURTHER INFORMATION CONTACT: Kelsey Potlock, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the original
application and supporting documents (including NMFS Federal Register
notices of the original proposed and final authorizations, and the
previous IHA), as well as a list of the references cited in this
document, may be obtained online at: <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>. In case of problems accessing these documents, please call the
contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ``take'' of marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
et seq.) direct the Secretary of Commerce (as delegated to NMFS) to
allow, upon request, the incidental, but not intentional, taking of
small numbers of marine mammals by U.S. citizens who engage in a
specified activity (other than commercial fishing) within a specified
geographical region if certain findings are made and either regulations
are issued or, if the taking is limited to harassment, a notice of a
proposed incidental take authorization may be provided to the public
for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of such 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 such 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 October 23, 2020, NMFS received a request from SouthCoast Wind
seeking authorization to take marine mammals incidental to high-
resolution geophysical site characterization surveys (HRG) off
Massachusetts and Rhode Island in the area of Commercial Lease of
Submerged Lands for Renewable Energy Development on the Outer
Continental Shelf Lease Area OCS-A-0521. Within this request, the
applicant had requested authorization to harass (by Level B harassment
only) up to 14 species of marine mammals (comprising 13 cetacean
species and 1 collective pinniped guild). NMFS published notice of the
proposed IHA in the Federal Register on March 1, 2021 (86 FR 11930).
Following publication of the proposed IHA notice, SouthCoast Wind
adjusted the proposed survey routes and submitted a modified IHA
application to NMFS on April 19, 2021. Based on this modified
application, an updated notice of proposed IHA was published in the
Federal Register on May 20, 2021 (86 FR 27393). NMFS subsequently
issued an IHA that was effective for a period of 1 year, from July 1,
2021 through June 30, 2022 (86 FR 38033, July 19, 2021).
On November 16, 2022, SouthCoast Wind submitted an application for
a renewal IHA in order to complete the remaining subset of the planned
survey activity that could not be completed under the 2021 IHA. This
request was for the take of small numbers of 15
[[Page 31679]]
species of marine mammals (comprising 13 cetacean and 2 pinniped
species), by Level B harassment only. Given the availability of updated
marine mammal density information from Duke University's Marine
Geospatial Ecology Laboratory (<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>) on June 20, 2022, NMFS determined that an IHA renewal was not
appropriate in this circumstance. However, because the activity would
otherwise qualify for a renewal of the initial IHA, i.e., the scope of
the activities, the survey location, the acoustic source use, and the
level of impact expected to occur (i.e., Level B harassment only)
remain the same, NMFS relies substantially herein on the information
previously presented in notices associated with issuance of the initial
IHA (86 FR 11930, March 1, 2021; 86 FR 27393, May 20, 2021; 86 FR
38033, July 19, 2021).
Following additional discussions with NMFS, SouthCoast Wind
submitted an updated request for a standard IHA on January 13, 2023
rather than a renewal IHA. SouthCoast Wind's request covered the same
activities (using the same sound sources), occurring in the same
location, and the mitigation, monitoring, and reporting requirements
are similar to those described in the Federal Register notice
announcing the issuance of the 2021 IHA (86 FR 38033, July 19, 2021).
The only changes are that the total number of survey days have been
reduced, the number of vessels performing survey activities have been
reduced, reduction in the assumed survey distance per day, and a
reduction in total survey trackline as described in greater detail
below. This updated request was deemed adequate and complete on January
24, 2023. No changes were made from the proposed to the final IHA.
Neither SouthCoast Wind, nor NMFS expect serious injury or
mortality to result from this activity. Take by Level A harassment
(injury) is considered unlikely, even absent mitigation, based on the
characteristics of the signals produced by the acoustic sources planned
for use.
Description of the Activity and Anticipated Impacts
Overview
SouthCoast Wind will conduct geotechnical and high-resolution
geophysical (HRG) surveys in the Lease Area OCS-A-0521 and along
potential submarine export cable routes (ECRs) to landfall locations in
Falmouth, Massachusetts and Narragansett Bay, Rhode Island (refer back
to Figure 1 in 88 FR 14335, March 8, 2023). The survey area is the same
as that previously described in the application for the 2021 IHA (86 FR
27393, May 20, 2021; 86 FR 38033, July 19, 2021) and consists of
approximately 127,388 acres (515.5 square kilometers (km\2\)) extending
approximately 20 nautical miles (nmi, 38 kilometers (km)) offshore.
The purpose of these surveys are to acquire HRG and geotechnical
data on the bathymetry, seafloor morphology, subsurface geology,
environmental/biological sites, seafloor obstructions, soil conditions,
and locations of any man-made, historical or archaeological resources
within the Lease Area and along the ECR corridor. Three survey vessels
may operate concurrently as part of the surveys, running at a maximum
speed of 3 to 4 knots (3.5 to 4.6 miles per hour). Additionally, a
shallow-water vessel may survey the nearshore areas of the project
location, but this would only occur during daylight hours and for a
maximum of 12-hours daily. Up to 114 days of surveys are planned, with
vessels operating for 24-hours as part of the planned surveys (Table
1).
Table 1--Number of Survey Days That SouthCoast Wind Will Perform the
Described HRG Survey Activities
------------------------------------------------------------------------
Number of
days of
Survey Location active
acoustic
source use
------------------------------------------------------------------------
Lease Area................................................. 39
Export Cable Routes........................................ 75
------------------------------------------------------------------------
Total Number of Days..................................... 114
------------------------------------------------------------------------
Underwater sound resulting from SouthCoast Wind's site
characterization survey activities has the potential to result in
incidental take of marine mammals in the form of behavioral harassment
(i.e., Level B harassment), specifically during use of certain acoustic
sources operating at <180 kilohertz (kHz). SouthCoast requested the
issuance of an IHA authorizing the take, by Level B harassment only, of
15 species of marine mammals (comprising 15 stocks) incidental to
marine site characterization surveys, specifically in association with
the use of HRG survey equipment.
A detailed description of the planned surveys by SouthCoast Wind
are provided in the Federal Register notice of the proposed IHA (88 FR
14335, March 8, 2023). Since that time, no changes have been made to
the survey activities. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for the
description of the specified activities.
The mitigation, monitoring, and reporting measures are described in
detail later in this document (please see Mitigation and Monitoring and
Reporting).
Comments and Responses
A notice of NMFS' proposal to issue an IHA to SouthCoast Wind was
published in the Federal Register on March 8, 2023 (88 FR 14335). That
proposed notice described, in detail, SouthCoast Wind's proposed
activities, the marine mammal species that may be affected by these
activities, and the anticipated effects on marine mammals. In that
notice, we requested public input on the request for authorization
described therein, our analyses, the proposed authorization, and
requested that interested persons submit relevant information,
suggestions, and comments. This proposed notice was available for a 30-
day public comment period.
NMFS received a comment letter from an environmental non-
governmental organization (eNGO), Oceana, Inc. All comments, and NMFS'
responses, are provided below, and the letter is available online on
NMFS' website (<a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>). Please review the
comment letter for full details regarding the comments and associated
rationale.
Comment 1: Oceana raised objections to NMFS' proposed renewal
process for potential extension of the 1-year IHA with an abbreviated
15-day public comment period. Oceana recommended that an additional 30-
day public comment period is necessary for any IHA renewal request.
Response: NMFS' IHA renewal process meets all statutory
requirements. In prior responses to comments about IHA renewals (e.g.,
84 FR 52464, October 2, 2019 and 85 FR 53342, August 28, 2020), NMFS
explained the IHA renewal process is consistent with the statutory
requirements contained in section 101(a)(5)(D) of the MMPA, and further
promotes NMFS' goals of improving conservation of marine mammals and
increasing efficiency in the MMPA compliance process. Therefore, we
intend to continue to implement the existing renewal process.
All IHAs issued, whether an initial IHA or a renewal, are valid for
a period of not more than 1 year. The public has 30 days to comment on
proposed IHAs,
[[Page 31680]]
with a cumulative total of 45 days for IHA renewals. The notice of the
proposed IHA published in the Federal Register on March 8, 2023 (88 FR
14335) provided a 30-day public comment period and made clear that NMFS
was seeking comment on the proposed IHA and the potential issuance of a
renewal for this survey. As detailed in the Federal Register notice for
the proposed IHA and on the agency's website, eligibility for renewal
is determined on a case-by-case basis, renewals are subject to an
additional 15-day public comment period, and the renewal is limited to
up to another year of identical or nearly identical activities as
described in the Description of Proposed Activities section of the
proposed IHA notice or the activities described in the Description of
Proposed Activities section of the proposed IHA notice would not be
completed by the time the IHA expires and a renewal would allow for
completion of the activities beyond that described in the Dates and
Duration section of the proposed notice. NMFS' analysis of the
anticipated impacts on marine mammals caused by the applicant's
activities covers both the initial IHA period and the possibility of a
1-year renewal. Therefore, a member of the public considering
commenting on a proposed initial IHA also knows exactly what activities
(or subset of activities) would be included in a proposed renewal IHA,
the potential impacts of those activities, the maximum amount and type
of take that could be caused by those activities, the mitigation and
monitoring measures that would be required, and the basis for the
agency's negligible impact determinations, least practicable adverse
impact findings, small numbers findings, and (if applicable) the no
unmitigable adverse impact on subsistence use finding--all the
information needed to provide complete and meaningful comments on a
possible renewal at the time of considering the proposed initial IHA.
Members of the public have the information needed to meaningfully
comment on both the immediate proposed IHA and a possible 1-year
renewal, should the IHA holder choose to request one.
While there would be additional documents submitted with a renewal
request, for a qualifying renewal these would be limited to
documentation that NMFS would make available and use to verify that the
activities are identical or nearly identical to those in the initial
IHA such that the changes would have either no effect on impacts to
marine mammals or decrease those impacts, or are a subset of activities
already analyzed and authorized but not completed under the initial
IHA. NMFS would also need to confirm, among other things, that the
activities would occur in the same location; involve the same species
and stocks; provide for continuation of the same mitigation,
monitoring, and reporting requirements; and that no new information has
been received that would alter the prior analysis. The renewal request
would also contain a preliminary monitoring report, in order to verify
that effects from the activities do not indicate impacts of a scale or
nature not previously analyzed. The additional 15-day public comment
period, which includes NMFS' direct notice to anyone who commented on
the proposed initial IHA, provides the public an opportunity to review
these few documents, provide any additional pertinent information, and
comment on whether they think the criteria for a renewal have been met.
Combined together, the 30-day public comment period on the initial IHA
and the additional 15-day public comment period on the renewal of the
same or nearly identical activities, provides the public with a total
of 45 days to comment on the potential for renewal of the IHA.
In addition to the IHA renewal process being consistent with all
requirements under section 101(a)(5)(D), it is also consistent with
Congress' intent for issuance of IHAs to the extent reflected in
statements in the legislative history of the MMPA. Through the
description of the process and express invitation to comment on
specific potential renewals in the Request for Public Comments section
of each proposed IHA, the description of the process on NMFS' website,
further elaboration on the process through responses to comments such
as these, posting of substantive documents on the agency's website, and
provision of 30 or 45 days for public review and comment on all
proposed initial IHAs and renewals respectively, NMFS has ensured that
the public is ``invited and encouraged to participate fully in the
agency's decision-making process,'' as Congress intended.
Comment 2: Oceana stated that NMFS must utilize the best available
scientific evidence, and suggested that NMFS has not done so,
specifically referencing information regarding the North Atlantic right
whale (NARW) such as updated population estimates, habitat usage in the
survey area, and seasonality information. Oceana specifically asserted
that NMFS is not using the best available scientific evidence with
regards to the NARW population estimate.
Response: NMFS agrees the best available scientific evidence should
be used for assessing NARW abundance estimates. Following the recent
publication of NMFS' draft 2022 Stock Assessment Reports (SAR), NMFS
updated the information relied upon herein accordingly. In prior
responses to comments, NMFS has found that the SAR is the best
available scientific evidence with respect to NARW population estimates
(see e.g., 87 FR 25452). We find no reason to reconsider or depart from
this.
Moreover, the draft 2022 SARs report the same NARW abundance
estimate (336) cited by Oceana in its public comment. We further note
that this change in abundance estimate does not change the estimated
take of NARWs or authorized take numbers, nor does it affect our
ability to make the required findings under the MMPA for SouthCoast
Wind's survey activities.
In sum, NMFS considered the best available scientific evidence
regarding both recent habitat usage patterns for the study area and up-
to-date seasonality information in the notice of the proposed IHA,
including consideration of existing biologically important areas (BIAs)
and densities provided by Roberts and Halpin (2022). While the
commenter has suggested that NMFS consider best available scientific
evidence for recent habitat usage patterns and seasonality, the
commenter has not offered any additional scientific information that it
suggests should be considered best available scientific evidence.
Comment 3: Oceana noted that chronic stressors are an emerging
concern for NARW conservation and recovery, and stated that chronic
stress may result in energetic effects for NARWs. Oceana suggested that
NMFS has not fully considered both the use of the area and the effects
of both acute and chronic stressors on the health and fitness of NARWs,
as disturbance responses in NARWs could lead to chronic stress or
habitat displacement, leading to an overall decline in their health and
fitness.
Response: NMFS agrees with Oceana that both acute and chronic
stressors are of concern for NARW conservation and recovery. We
recognize that acute stress from acoustic exposure is one potential
impact of these surveys, and that chronic stress can have fitness,
reproductive, etc. impacts at the population-level scale. NMFS has
carefully reviewed the best available scientific information in
assessing impacts to marine mammals, and
[[Page 31681]]
recognizes that the surveys have the potential to impact marine mammals
through behavioral effects, stress responses, and auditory masking.
However, NMFS does not expect that the generally short-term,
intermittent, and transitory marine site characterization survey
activities planned by SouthCoast Wind will create conditions of acute
or chronic acoustic exposure leading to long-term physiological stress
responses in marine mammals. NMFS has prescribed a robust suite of
mitigation measures, including extended distance shutdowns for NARW,
that are expected to further reduce the duration and intensity of
acoustic exposure, while limiting the potential severity of any
possible behavioral disruption. The potential for chronic stress was
evaluated in making the determinations presented in NMFS' negligible
impact analyses.
SouthCoast Wind's survey area is near a known NARW foraging
location in the New England region, as well as overlapping a small
fraction of the migratory corridor used by NARW in a transitory manner
for annual migratory activities. Given that the potential impacts for
these types of surveys are expected to be low level, in part as a
result of the brief periods where harassment-level noise exposure may
be possible, we do not expect chronic effects to occur as a result of
SouthCoast Wind's surveys. Furthermore, the limited range to the
estimated harassment zone of the largest acoustic source (141 m) and
the survey path within and near the SouthCoast Wind lease means that
the area where NARWs are known to concentrate within Nantucket Shoals
would not be impacted. Because of this, we do not expect effects to
include reduced foraging opportunities for NARWs. Because of these
reasons, NMFS does not expect acute or cumulative stress to be a
detrimental factor to NARWs from SouthCoast Wind's described survey
activities.
Lastly, NMFS does not find that the effects of SouthCoast Wind's
survey may contribute to stunted growth rates as suggested by Oceana's
comments. The activities associated with SouthCoast Wind's survey are
outside the scope of activities described in the Stewart et al. (2021)
paper, which finds that entanglements in fishing gear are associated
with shorter whales. There is no evidence suggesting that the survey
activities considered herein could have energetic effects similar to
those caused by entanglement in fishing gear. Therefore, NMFS does not
expect stunted growth rates to result from SouthCoast Wind's described
survey activities.
Comment 4: Oceana asserted that NMFS must fully consider the
discrete effects of each activity and the cumulative effects of the
suite of approved, proposed and potential activities on marine mammals
and North Atlantic right whales in particular and ensure that the
cumulative effects are not excessive before issuing or renewing an IHA.
Response: Neither the MMPA nor NMFS' codified implementing
regulations call for consideration of other unrelated activities and
their impacts on populations. The preamble for NMFS' implementing
regulations (54 FR 40338, September 29, 1989) states in response to
comments that the impacts from other past and ongoing anthropogenic
activities are to be incorporated into the negligible impact analysis
via their impacts on the baseline. Consistent with that direction, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline, e.g., as reflected in the density/distribution and status of
the species, population size and growth rate, and other relevant
stressors. The 1989 final rule for the MMPA implementing regulations
also addressed public comments regarding cumulative effects from
future, unrelated activities. There NMFS stated that such effects are
not considered in making findings under section 101(a)(5) concerning
negligible impact. In this case, this IHA, as well as other IHAs
currently in effect or proposed within the specified geographic region,
are appropriately considered an unrelated activity relative to the
others. The IHAs are unrelated in the sense that they are discrete
actions under section 101(a)(5)(D), issued to discrete applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of the specified activity or
class of activities that can be expected to result in incidental taking
of marine mammals (50 CFR 216.104(a)(1)). Thus, the ``specified
activity'' for which incidental take coverage is being sought under
section 101(a)(5)(D) is generally defined and described by the
applicant. Here, SouthCoast Wind 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 (54 FR 40338; September 29, 1989), NMFS also indicated (1)
that we would consider cumulative effects that are reasonably
foreseeable when preparing a National Environmental Protection Act
(NEPA) analysis, and (2) that reasonably foreseeable cumulative effects
would also be considered under section 7 of the Endangered Species Act
(ESA) for listed species, as appropriate. Accordingly, NMFS has written
an 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
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 SouthCoast
Wind, 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 SouthCoast Wind'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
(BiOp) for BOEM Lease and Site Assessment Rhode Island, Massachusetts,
New York, and New Jersey Wind Energy Areas (<a href="https://repository.library.noaa.gov/view/noaa/29291">https://repository.library.noaa.gov/view/noaa/29291</a>). Analyzed activities
include those for which NMFS issued previous IHAs (82 FR 31562, July 7,
2017; 85 FR 21198, April 16, 2020; 86 FR 26465, May 10, 2021), which
are similar to those planned by SouthCoast Wind 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.
[[Page 31682]]
Comment 5: Oceana states that NMFS must make an assessment of which
activities, technologies, and strategies are truly necessary to achieve
site characterization to inform development of the offshore wind
projects and which are not critical, asserting that NMFS should
prescribe the appropriate survey techniques. In general, Oceana stated
that NMFS must require that all IHA applicants minimize the impacts of
underwater noise to the fullest extent feasible, including through the
use of best available technology and methods to minimize sound levels
from geophysical surveys such as through the use of technically and
commercially feasible and effective noise reduction and attenuation
measures.
Response: The MMPA requires that an IHA include measures that will
effect the least practicable adverse impact on the affected species and
stocks and, in practice, NMFS agrees that the IHA should include
conditions for the survey activities that will first avoid adverse
effects on North Atlantic right whales in and around the survey site,
where practicable, and then minimize the effects that cannot be
avoided. NMFS has determined that the IHA meets this requirement to
effect the least practicable adverse impact. As part of the analysis
for all marine site characterization survey IHAs, NMFS evaluated the
effects expected as a result of the specified activity, made the
necessary findings, and prescribed mitigation requirements sufficient
to achieve the least practicable adverse impact on the affected species
and stocks of marine mammals. It is not within NMFS' purview to make
judgments regarding what may be appropriate techniques or technologies
for an operator's survey objectives.
Comment 6: Oceana states that SouthCoast Wind's activities will
increase vessel traffic in and around the project area and that the IHA
must include a vessel traffic plan to minimize the effects of increased
vessel traffic.
Response: NMFS disagrees with Oceana's statement that the IHA must
require a vessel traffic plan. During HRG surveys, there are no service
vessels required. NMFS agrees that a vessel plan may be potentially
appropriate for project construction, but it is not needed for marine
site characterization surveys.
Comment 7: Oceana suggests that Protected Species Observers (PSOs)
complement their survey efforts using additional technologies, such as
infrared detection devices when in low-light conditions.
Response: NMFS agrees with Oceana regarding this suggestion and a
requirement to utilize a thermal (infrared) device during low-light
conditions was included in the proposed Federal Register notice. That
requirement is included as a requirement of the issued IHA.
Comment 8: Oceana recommended that NMFS restrict all vessels of all
sizes associated with the proposed survey activities to speeds less
than 10 knots (kn) at all times due to the risk of vessel strikes to
North Atlantic right whales and other large whales.
Response: While NMFS acknowledges that vessel strikes can result in
injury or mortality, we have analyzed the potential for vessel strike
resulting from SouthCoast Wind'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 NARW sighting locations; a requirement that all
vessels greater than or equal to 19.8 m in overall length operating
from November 1 through April 30 operate at speeds of 10 kn (18.5 km/
hour) or less; a requirement that all vessel operators reduce vessel
speed to 10 kn (18.5 km/hour) or less when any large whale, any mother/
calf pairs, pods, or large assemblages of non-delphinid cetaceans are
observed near the vessel; a requirement that all survey vessels
maintain a separation distance of 500 m or greater from North Atlantic
right whales (100 m from any ESA-listed whales) or other unidentified
large marine mammals visible at the surface while underway; a
requirement that, if underway, vessels must steer a course away from
any sighted ESA-listed whale at 10 kn or less until the 100 m minimum
separation distance (or 500 m distance for North Atlantic right whales)
has been established; a requirement that, if an ESA-listed whale is
sighted in a vessel's path, or within 100 m of an underway vessel (500
m for a North Atlantic right whale), the underway vessel must reduce
speed and shift the engine to neutral; and, a requirement that all
vessels underway must maintain a minimum separation distance of 100 m
from all other marine mammals (excluding North Atlantic right whales),
with an understanding that at times this may not be possible (e.g., for
animals that approach the vessel). We have determined that the vessel
strike avoidance measures in the IHA are sufficient to ensure the least
practicable adverse impact on species or stocks and their habitat.
Furthermore, no documented vessel strikes have occurred for any marine
site characterization surveys which were issued IHAs from NMFS during
the survey activities themselves or while transiting to and from survey
sites.
Comment 9: Oceana suggests that NMFS require vessels maintain a
separation distance of at least 500 m from North Atlantic right whales
at all times.
Response: NMFS agrees with Oceana regarding this suggestion and a
requirement to maintain a separation distance of at least 500 m from
North Atlantic right whales at all times was included in the proposed
Federal Register notice and was included as a requirement in the issued
IHA.
Comment 10: Oceana recommended that the IHA should require all
vessels supporting site characterization to be equipped with and use
Class A Automatic Identification System (AIS) devices at all times
while on the water. Oceana suggested this requirement should apply to
all vessels, regardless of size, associated with the survey.
Response: NMFS is generally supportive of the idea that vessels
involved with survey activities be equipped with and use Class A AIS
devices at all times while on the water. Indeed, there is a precedent
for NMFS requiring such a stipulation for geophysical surveys in the
Atlantic Ocean (83 FR 63268, December 7, 2018); however, these seismic
surveys carried the potential for much more significant impacts than
the marine site characterization surveys planned by SouthCoast Wind.
Given the comparatively small footprint of potential effects and
correspondingly low level of concern regarding HRG survey activities,
NMFS has determined that the operational costs associated with a
requirement to so equip vessels not otherwise required to carry AIS are
not warranted under the MMPA's least practicable adverse impact
standard.
Comment 11: Oceana asserts that the IHA must include requirements
to hold all vessels associated with site characterization surveys
accountable to the IHA requirements, including vessels owned by the
developer, contractors, employees, and others regardless of ownership,
operator, and contract. They state that exceptions and exemptions
[[Page 31683]]
will create enforcement uncertainty and incentives to evade regulations
through reclassification and redesignation. They recommend that NMFS
simplify this by requiring all vessels to abide by the same
requirements, regardless of size, ownership, function, contract, or
other specifics.
Response: NMFS agrees with Oceana and the proposed IHA and final
IHA has general conditions to hold SouthCoast Wind and its designees
(including vessel operators and other personnel) accountable while
performing operations under the authority of the IHA. The plain
language of the IHA indicates that the conditions contained therein
apply to SouthCoast Wind and its designees. The IHA requires that a
copy of the IHA must be in the possession of SouthCoast Wind, the
vessel operators, the lead PSO, and any other relevant designees of
SouthCoast Wind operating under the authority of this IHA. The IHA also
states that SouthCoast Wind must ensure that the vessel operator and
other relevant vessel personnel, including the PSO team, are briefed on
all responsibilities, communication procedures, marine mammal
monitoring protocols, operational procedures, and IHA requirements
prior to the start of survey activity, and when relevant new personnel
join the survey operations.
Comment 12: Oceana stated that the IHA must include a requirement
for all phases of the site characterization to subscribe to the highest
level of transparency, including frequent reporting to Federal
agencies. Oceana recommends requirements to report all visual and
acoustic detections of North Atlantic right whales and any dead,
injured, or entangled marine mammals to NMFS or the Coast Guard as soon
as possible and no later than the end of the PSO shift. Oceana states
that to foster stakeholder relationships and allow public engagement
and oversight of the permitting, the IHA should require all reports and
data to be accessible on a publicly available website.
Response: NMFS agrees with the need for reporting and, indeed, the
MMPA calls for IHAs to incorporate reporting requirements. As included
in the proposed IHA, the final IHA includes requirements for reporting
that supports Oceana's recommendations. SouthCoast Wind is required to
submit a monitoring report to NMFS within 90 days after completion of
survey activities that fully documents the methods and monitoring
protocols, summarizes the data recorded during monitoring. PSO
datasheets or raw sightings data must also be provided with the draft
and final monitoring report.
Further, the draft IHA and final IHA stipulate that if a North
Atlantic right whale is observed at any time by any survey vessels,
during surveys or during vessel transit, SouthCoast Wind must
immediately report sighting information to the NMFS North Atlantic
Right Whale Sighting Advisory System within 2 hours of occurrence, when
practicable, or no later than 24 hours after occurrence. SouthCoast
Wind may also report the sighting to the U.S. Coast Guard.
Additionally, SouthCoast Wind must report any discoveries of injured or
dead marine mammals to the Office of Protected Resources, NMFS, and to
the New England/Mid-Atlantic Regional Stranding Coordinator as soon as
feasible. This includes entangled animals. All reports and associated
data submitted to NMFS are included on the website for public
inspection.
Daily visual and acoustic detections of North Atlantic right whales
and other large whale species along the Eastern Seaboard, as well as
Slow Zone locations, are publicly available on WhaleMap (<a href="https://whalemap.org/WhaleMap/">https://whalemap.org/WhaleMap/</a>). Further, recent acoustic detections of North
Atlantic right whales and other large whale species are available to
the public on NOAA's Passive Acoustic Cetacean Map website <a href="https://apps-nefsc.fisheries.noaa.gov/pacm/#/narw">https://apps-nefsc.fisheries.noaa.gov/pacm/#/narw</a>. Given the open access to the
resources described above, NMFS does not concur that public access to
quarterly PSO reports is warranted and we have not included this
measure in the authorization.
Comment 13: Oceana recommended increasing the Exclusion Zone to
1,000 m for North Atlantic right whales with requirements for HRG
survey vessels to use PSOs and Passive Acoustic Monitoring (PAM) to
establish and monitor these zones.
Response: NMFS notes that the 500 m Exclusion Zone for North
Atlantic right whales exceeds the modeled distance to the largest 160
dB Level B harassment isopleth (141 m during sparker use) by a
conservative margin to be extra cautious. Commenters do not provide a
compelling rationale for why the Exclusion Zone should be even larger.
Given that these surveys are relatively low impact and that,
regardless, NMFS has prescribed a precautionary North Atlantic right
whale Exclusion Zone that is larger (500 m) than the conservatively
estimated largest harassment zone (141 m), NMFS has determined that the
Exclusion Zone is appropriate.
Regarding the use of acoustic monitoring to implement the exclusion
zones, NMFS does not anticipate that acoustic monitoring would be
effective for a variety of reasons discussed below and therefore has
not required it in this IHA. As described in the mitigation section,
NMFS has determined that the prescribed mitigation requirements are
sufficient to effect the least practicable adverse impact on all
affected species or stocks.
The commenters do not explain why they expect that PAM would be
effective in detecting vocalizing mysticetes, nor does NMFS agree that
this measure is warranted, as it is not expected to be effective for
use in detecting the species of concern. It is generally accepted that,
even in the absence of additional acoustic sources, using a towed
passive acoustic sensor to detect baleen whales (including North
Atlantic right whales) is not typically effective because the noise
from the vessel, the flow noise, and the cable noise are in the same
frequency band and will mask the vast majority of baleen whale calls.
Vessels produce low-frequency noise, primarily through propeller
cavitation, with main energy in the 5-300 hertz (Hz) frequency range.
Source levels range from about 140 to 195 decibel (dB) re 1 [mu]Pa
(micropascal) at 1 m (NRC, 2003; Hildebrand, 2009), depending on
factors such as ship type, load, and speed, and ship hull and propeller
design. Studies of vessel noise show that it appears to increase
background noise levels in the 71-224 Hz range by 10-13 dB (Hatch et
al., 2012; McKenna et al., 2012; Rolland et al., 2012). PAM systems
employ hydrophones towed in streamer cables approximately 500 m behind
a vessel. Noise from water flow around the cables and from strumming of
the cables themselves is also low frequency and typically masks signals
in the same range. Experienced PAM operators participating in a recent
workshop (Thode et al., 2017) emphasized that a PAM operation could
easily report no acoustic encounters, depending on species present,
simply because background noise levels rendered any acoustic detection
impossible. The same workshop report stated that a typical eight-
element array towed 500 m behind a vessel could be expected to detect
delphinids, sperm whales, and beaked whales at the required range, but
not baleen whales, due to expected background noise levels (including
seismic noise, vessel noise, and flow noise).
There are several additional reasons why we do not agree that use
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM
can be an important tool for augmenting detection capabilities in
certain circumstances, its utility in further reducing impact during
HRG survey activities is limited. First,
[[Page 31684]]
for this activity, the area expected to be ensonified above the Level B
harassment threshold is relatively small (a maximum of 141 m); this
reflects the fact that, to start with, the source level is
comparatively low and the intensity of any resulting impacts would be
lower level and, further, it means that inasmuch as PAM will only
detect a portion of any animals exposed within a zone, the overall
probability of PAM detecting an animal in the harassment zone is low.
Together these factors support the limited value of PAM for use in
reducing take with smaller zones. PAM is only capable of detecting
animals that are actively vocalizing and, many marine mammal species
vocalize infrequently or during certain activities, which means that
only a subset of the animals within the range of the PAM would be
detected (and potentially have reduced impacts). Additionally,
localization and range detection can be challenging under certain
scenarios. For example, odontocetes are fast moving and often travel in
large or dispersed groups which makes localization difficult.
Given that the effects to marine mammals from the types of surveys
authorized in this IHA are expected to be limited to low level
behavioral harassment even in the absence of mitigation, the limited
additional benefit anticipated by adding this detection method
(especially for North Atlantic right whales and other low frequency
cetaceans, species for which PAM has limited efficacy), and the cost
and impracticability of implementing a full-time PAM program, we have
determined the current requirements for visual monitoring are
sufficient to ensure the least practicable adverse impact on the
affected species or stocks and their habitat. NMFS has previously
provided discussions on why PAM isn't a required monitoring measure
during HRG survey IHAs in past Federal Register notices (see 86 FR
21289, April 22, 2021 and 87 FR 13975, March 11, 2022 for examples).
Comment 14: Oceana recommended that when HRG surveys are allowed to
resume after a shutdown event, the surveys should be required to use a
ramp-up procedure to encourage any nearby marine life to leave the
area.
Response: NMFS agrees with this recommendation and included in the
Federal Register notice of the proposed IHA (88 FR 14335, March 8,
2023) and this final IHA a stipulation that when technically feasible,
survey equipment must be ramped up at the start or restart of survey
activities. Ramp-up must begin with the power of the smallest acoustic
equipment at its lowest practical power output appropriate for the
survey. When technically feasible the power must then be gradually
turned up and other acoustic sources added in a way such that the
source level would increase gradually. NMFS notes that ramp-up would
not be required for short periods where acoustic sources were shut down
(i.e., less than 30 minutes) if PSOs have maintained constant visual
observation and no detections of marine mammals occurred within the
applicable Exclusion Zones.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history, of the potentially affected species.
Additional information regarding population trends and threats may be
found in NMFS's Stock Assessment Reports (SARs; <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and more general information about these species
(e.g., physical and behavioral descriptions) may be found on NMFS's
website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>).
Table 2 lists all species or stocks for which take is authorized
for this action, and summarizes information related to the population
or stock, including regulatory status under the MMPA and Endangered
Species Act (ESA) and potential biological removal (PBR), where known.
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's SARs). While no
mortality is anticipated or authorized here, PBR and annual serious
injury and mortality from anthropogenic sources are included here as
gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS's stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All managed stocks in this region are assessed in
NMFS' U.S. Atlantic and Gulf of Mexico Marine Mammal Stock Assessment.
All values presented in Table 2 are the most recent available at the
time of publication, including from the draft 2022 SARs, and are
available online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>.
Table 2--Marine Mammals Likely To Occur in the Project Area That May Be Affected by SouthCoast Wind's Activity
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR \3\ Annual M/
\1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Balaenidae:
North Atlantic Right Whale...... Eubalaena glacialis.... Western North Atlantic. E, D, Y 338 (0, 332, 2020).... 0.7 8.1
Family Balaenopteridae (rorquals):
Fin Whale....................... Balaenoptera physalus.. Western North Atlantic. E, D, Y 6,802 (0.24; 5,573; 11 1.8
2016).
Humpback Whale.................. Megaptera novaeangliae. Gulf of Maine.......... -, -, Y 1,396 (0; 1,380; 2016) 22 12.15
Minke Whale..................... Balaenoptera Canadian Eastern -, -, N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. Coastal. 2016).
Sei Whale....................... Balaenoptera borealis.. Nova Scotia............ E, D, Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Physeteridae:
[[Page 31685]]
Sperm Whale..................... Physeter macrocephalus. North Atlantic......... E, D, Y 4,349 (0.28; 3451; 3.9 0
2016).
Family Delphinidae:
Atlantic Spotted Dolphin........ Stenella frontalis..... Western North Atlantic. -, -, N 39,921 (0.27; 32,032; 320 0
2016).
Atlantic White-Sided Dolphin.... Lagenorhynchus acutus.. Western North Atlantic. -, -, N 93,233 (0.71; 54,443; 544 27
2016).
Bottlenose Dolphin.............. Tursiops truncatus..... Western North Atlantic-- -, -, N 62,851 b (0.23; 519 28
Offshore. 51,914; 2016).
Long-Finned Pilot Whale......... Globicephala melas..... Western North Atlantic. -, -, N 39,215 (0.3; 30,627; 306 29
2016).
Risso's Dolphin................. Grampus griseus........ Western North Atlantic. -, -, N 35,215 (0.19; 30,051; 301 34
2016).
Common Dolphin.................. Delphinus delphis...... Western North Atlantic. -, -, N 172,947 (0.21; 1452 390
145,216; 2016).
Family Phocoenidae (porpoises):
Harbor Porpoise................. Phocoena phocoena...... Gulf of Maine/Bay of -, -, N 95,543 (0.31; 74,034; 851 164
Fundy. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Family Phocidae (earless seals):
Gray Seal \4\................... Halichoerus grypus..... Western North Atlantic. -, -, N 27,300 (0.22; 22,785; 1389 4453
2016).
Harbor Seal..................... Phoca vitulina......... Western North Atlantic. -, -, N 61,336 (0.08; 57,637; 1729 339
2018).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). 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; N min 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' gray seal stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in
Canada) is approximately 450,000. The annual mortality and serious injury (M/SI) value given is for the total stock.
A detailed description of the species likely to be affected by
SouthCoast Wind's activities, including information regarding
population trends and threats, and local occurrence, were provided in
the Federal Register notice for the proposed IHA (88 FR 14335; March 8,
2023). Since that time, we are not aware of any changes in the status
of these species and stocks or other relevant new information;
therefore, detailed descriptions are not provided here. Please refer to
that Federal Register notice for those descriptions. Please also refer
to NMFS's website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for
generalized species accounts.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Current data indicate that not all marine
mammal species have equal hearing capabilities (e.g., Richardson et
al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect
this, Southall et al. (2007) recommended that marine mammals be divided
into functional hearing groups based on directly measured or estimated
hearing ranges on the basis of available behavioral response data,
audiograms derived using auditory evoked potential techniques,
anatomical modeling, and other data. Note that no direct measurements
of hearing ability have been successfully completed for mysticetes
(i.e., low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in Table 3.
Table 3--Marine Mammal Hearing Groups
[NMFS, 2018]
------------------------------------------------------------------------
Generalized hearing
Hearing group range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen whales).... 7 Hz to 35 kHz.
Mid-frequency (MF) cetaceans (dolphins, toothed 150 Hz to 160 kHz.
whales, beaked whales, bottlenose whales).
High-frequency (HF) cetaceans (true porpoises, 275 Hz to 160 kHz.
Kogia, river dolphins, cephalorhynchid,
Lagenorhynchus cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) (true seals). 50 Hz to 86 kHz.
Otariid pinnipeds (OW) (underwater) (sea lions 60 Hz to 39 kHz.
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).
[[Page 31686]]
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth, 2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
The effects of underwater noise from the deployed acoustic sources
have the potential to result in behavioral harassment of marine mammals
in the vicinity of the study area. The Federal Register notice for the
proposed IHA (88 FR 14335, March 8, 2023) referenced the previous
Federal Register notices (86 FR 11930, March 1, 2021; 86 FR 27393, May
20, 2021; 86 FR 38033, July 19, 2021) for a discussion of the effects
of anthropogenic noise, ship strike, stress, and potential impacts on
marine mammals and their habitat. Therefore that information is not
repeated here; please refer to those Federal Register notices for that
information.
Estimated Take
A detailed description of the acoustic sources planned for use and
the methods used to estimate take anticipated to occur incidental to
the project is found in the previous Federal Register notices (86 FR
11930, March 1, 2021; 86 FR 27393, May 20, 2021; 86 FR 38033, July 19,
2021). The acoustic sources that may result in take, as well as the
associated source levels, estimated isopleth distances to the 160 dB
Level B harassment threshold (maximum of 141 m), resulting estimated
ensonified areas, and the methods of take estimation, including the use
of group size adjustments and Protected Species Observer (PSO) data,
remain applicable to this final notice and are unchanged from those
described for the 2021 IHA. Therefore, this information is not repeated
here and we refer the reader to the previous Federal Register notices
for detailed descriptions (86 FR 27393, May 20, 2021; 86 FR 38033, July
19, 2021). The only exception to this is the incorporation of newly
updated density information (Roberts et al., 2016; Roberts and Halpin,
2022), available online at: <a href="https://seamap.env.duke.edu/">https://seamap.env.duke.edu/</a>. We refer the
reader to Tables 1 and 2 in the ITA Request from SouthCoast Wind for
specific density values used in the analysis, as found on our website
(<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>).
The authorized take can be found below in Table 4. Table 4 presents
the results of SouthCoast's density-based calculations, estimated
potential take numbers based on observational data presented in region-
specific PSO reports, and mean group sizes from both NMFS' Atlantic
Marine Assessment Program for Protected Species (AMAPPS) survey data
and references presented by SouthCoast in its application. The largest
value for each species, across these sources, was authorized. For
comparative purposes, we have provided the take that was previously
authorized in the 2021 IHA (86 FR 38033, July 19, 2021). NMFS notes
that take by Level A harassment was not requested, nor does NMFS
anticipate that it could occur. Therefore, NMFS has not authorized any
take by Level A harassment. No mortality or serious injury is
anticipated to occur or authorized.
[[Page 31687]]
Table 4--Total Authorized Takes, by Level B Harassment Only, Relative to Population Size for SouthCoast Wind's 2023 HRG Surveys
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Total Mean group size Take Final 2023 IHA
density - PSO data -------------------------- authorized -------------------------
Marine mammal species Scientific name Stock Estimated based take under Percentage
population calculated estimate SouthCoast AMAPPS previous Authorized of stock
take wind 2021 IHA takes abundance
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Fin Whale............................ Balaenoptera physalus... Western North Atlantic. 6,802 3.0 6.5 1.8 1.25 6 7 0.1
Humpback Whale....................... Megaptera novaeangliae.. Gulf of Maine.......... 1,396 2.3 55.3 2.0 1.6 33 55 3.94
Minke Whale.......................... Balaenoptera Canadian Eastern 21,968 12.9 12.1 1.2 1.12 14 13 0.06
acutorostrata. Coastal.
North Atlantic Right Whale........... Eubalaena glacialis..... Western North Atlantic. 338 5.5 0.2 2.4 1.58 9 6 1.78
Sei Whale............................ Balaenoptera borealis... Nova Scotia............ 6,292 1.3 1.0 1.6 1.21 6 2 0.03
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Odontocetes
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Atlantic Spotted Dolphin............. Stenella frontalis...... Western North Atlantic. 39,921 3.5 ........... 29 24.2 \a\ n/a 29 0.07
Atlantic White-sided Dolphin......... Lagenorhynchus acutus... Western North Atlantic. 93,233 24.4 ........... 27.9 12.2 57 28 0.03
Bottlenose Dolphin................... Tursiops truncatus...... Western North Atlantic-- 62,851 12.8 151.9 7.8 9.9 536 152 0.24
Offshore.
Common Dolphin....................... Delphinus delphis....... Western North Atlantic. 172,947 198.8 2,093.7 34.9 30.2 1,969 2,094 1.21
Harbor Porpoise...................... Phocoena phocoena....... Gulf of Maine/Bay of 95,543 83.2 0.2 2.7 2.5 46 83 0.09
Fundy.
Long-finned Pilot Whale.............. Globicephala melas...... Western North Atlantic. 39,215 1.7 4.4 8.4 8.2 27 8 0.02
Risso's Dolphin...................... Grampus griseus......... Western North Atlantic. 35,215 2.0 ........... 5.4 7.3 18 7 0.01
Sperm Whale.......................... Physeter macrocephalus.. N Atlantic............. 4,349 0.9 0.3 1.5 1.7 6 2 0.04
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Pinnipeds
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor Seal.......................... Phoca vitulina.......... Western North Atlantic. 61,336 74.2 2.3 1.4 \c\ n/a \b\ n/a 74 0.12
Gray Seal............................ Halichoerus grypus...... Western North Atlantic. \d\ 27,300 166.7 38.7 1.4 \c\n/a \b\ n/a 167 \d\ 0.04
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ No takes for this species were authorized in the 2021 IHA (86 FR 38033, July 19, 2021).
\b\ In the 2021 IHA (86 FR 38033, July 19, 2021), both seal species were combined into a single guild of 718 total authorized takes.
\c\ No AMAPPS data was available for seals.
\d\ NMFS' stock abundance estimate (and associated PBR value) applies to U.S. population only. Total stock abundance (including animals in Canada) is approximately 451,600. This value was used
in the percentage of stock abundance estimated to be taken by the project.
[[Page 31688]]
Mitigation, Monitoring and Reporting Measures
The required mitigation, monitoring, and reporting measures are
similar to those described in the Federal Register notice announcing
issuance of the 2021 IHA (86 FR 38033, July 19, 2021; with the
exception discussed below), and the discussion of the least practicable
adverse impact included in that document remains accurate.
Following issuance of the 2021 IHA to SouthCoast Wind, NMFS'
Greater Atlantic Regional Fisheries Office (GARFO) concluded a
programmatic informal consultation regarding wind energy development-
related surveys conducted in three Atlantic Renewable Energy Regions
(<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>). Therefore, in addition to the mitigation, monitoring,
and reporting measures prescribed through the 2021 IHA (86 FR 38033,
July 19, 2021), SouthCoast Wind will be required to adhere to relevant
Project Design Criteria (PDC) described in the GARFO consultation
document (specifically PDCs 4, 5, and 7). The following measures are
required for inclusion in this IHA.
Visual Monitoring and Shutdown Zones
NMFS-approved visual observers must be used. During survey
operations (e.g., any day on which use of the sparker source is planned
to occur, and whenever the sparker source is in the water, whether
activated or not), a minimum of one visual marine mammal observer
(i.e., 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 source ceases.
Visual PSOs will coordinate to ensure 360[deg] visual coverage
around each 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 will establish and monitor applicable shutdown
zones (see below). These zones will be based upon the radial distance
from the sparker source (rather than being based around the vessel
itself).
Two 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
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). Any observations of marine
mammals by crew members aboard any vessel associated with the survey
will be relayed to the PSO team.
Visual PSOs will be on watch for a maximum of 4 consecutive hours
followed by a break of at least 1 hour between watches and may conduct
a maximum of 12 hours of observation per 24-hour period.
Pre-Start Clearance and Ramp-Up
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 source when technically feasible. Operators will ramp up
sparkers to half power for 5 minutes and then proceed to full power. A
30-minute pre-start clearance observation period will occur prior to
the start of ramp-up. The intent of pre-start clearance observation (30
minutes) is to ensure no marine mammals are within the shutdown zones
prior to the beginning of ramp-up. The intent of 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 will
adhere to the following pre-start clearance and ramp-up requirements:
<bullet> The operator will 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 will be scheduled so as to minimize the time
spent with the source activated.
<bullet> A visual PSO conducting pre-start clearance observations
will 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 will 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 will 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 will use best professional judgment in
making the decision to call for a shutdown.
<bullet> Ramp-up will not be initiated if any marine mammal to
which the prestart 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 will 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 will 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 will 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 activation will 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
[[Page 31689]]
applicable shutdown zone. For any longer shutdown, pre-start clearance
observation and ramp-up are required.
Shutdown
All operators will adhere to the following shutdown requirements:
<bullet> Any PSO on duty has the authority to call for shutdown of
the sparker source if a marine mammal is detected within the applicable
shutdown zone.
<bullet> The operator will 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 source is active and a marine mammal
appears within or enters the applicable shutdown zone, the source will
be shut down. When shutdown is instructed by a PSO, the source will 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 will use best
professional judgment in making the decision to call for a shutdown.
<bullet> Upon implementation of shutdown, the source will 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 will occur.
Vessel Strike Avoidance
Crew and supply vessel personnel will use an appropriate reference
guide that includes identifying information on all marine mammals that
may be encountered. Vessel operators will comply with the below
measures except under extraordinary circumstances when the safety of
the vessel or crew is in doubt or the safety of life at sea is in
question. These requirements do not apply in any case where compliance
would create an imminent and serious threat to a person or vessel or to
the extent that a vessel is restricted in its ability to maneuver and,
because of the restriction, cannot comply.
<bullet> Vessel operators and crews will maintain a vigilant watch
for all marine mammals and slow down, stop their vessel, or alter
course, as appropriate and regardless of vessel size, to avoid striking
any marine mammal. A 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 detailed below). Visual
observers monitoring the vessel strike avoidance zone will 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 right whale, other whale (defined in this
context as sperm whales or baleen whales other than right whales), or
other marine mammals.
<bullet> All vessels, regardless of size, will 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) (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-shipstrikes-north-atlantic-right-whales">www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-shipstrikes-north-atlantic-right-whales</a> for specific detail
regarding these areas.
<bullet> Vessel speeds will also be reduced to 10 knots or less
when mother/calf pairs, pods, or large assemblages of cetaceans are
observed near a vessel.
<bullet> All vessels will maintain a minimum separation distance of
500 m from right whales. If a right whale is sighted within the
relevant separation distance, the vessel will steer a course away at 10
knots 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 right whale, the vessel operator will assume that it is a right whale
and take appropriate action.
<bullet> All vessels will maintain a minimum separation distance of
100 m from sperm whales and all other baleen whales.
<bullet> All vessels will, 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 will take action as necessary to avoid violating
the relevant separation distance (e.g., attempt to remain parallel to
the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area, 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
whale 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 SouthCoast
Wind's responsibility to maintain awareness of the establishment and
location of any such areas and to abide by these requirements
accordingly.
PSOs
SouthCoast Wind will use independent, dedicated, trained PSOs,
meaning that the PSOs will be employed by a third-party observer
provider, will have no tasks other than to conduct observational
effort, collect data, will 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
will have successfully completed an approved PSO training course for
geophysical surveys. Visual monitoring will be performed by qualified,
NMFS-approved PSOs. PSO resumes will be provided to NMFS for review and
approval prior to the start of survey activities.
PSO names will 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 will 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.
[[Page 31690]]
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 will 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 will be planned such that unconditionally-approved PSOs
are on duty with conditionally-approved PSOs.
PSOs will 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 will 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).
SouthCoast Wind will 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, will 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 will be provided by an individual
PSO, the third-party PSO provider, or the operator, but SouthCoast Wind
is responsible for ensuring PSOs have the proper equipment required to
perform the duties specified in the final 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 will 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 will also be
available to PSOs for use as appropriate based on conditions and
visibility to support the sighting and monitoring of marine mammals.
During nighttime operations, night-vision goggles with thermal clip-ons
and infrared technology will be available for use. Position data will
be recorded using hand-held or vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state
(BSS) 3 or less), to the maximum extent practicable, PSOs will also
conduct observations when the acoustic source is not operating for
comparison of sighting rates and behavior with and without use of the
active acoustic sources. Any observations of marine mammals by crew
members aboard the vessel associated with the survey will be relayed to
the PSO team. Data on all PSO observations will be recorded based on
standard PSO collection requirements. This will include dates, times,
and locations of survey operations; dates and times of observations,
location and weather; details of marine mammal sightings (e.g.,
species, numbers, behavior); and details of any observed marine mammal
behavior that occurs (e.g., noted behavioral disturbances).
Reporting
SouthCoast Wind will submit a draft summary report on all
activities and monitoring results within 90 days of the completion of
the survey or expiration of the IHA, whichever comes sooner. The report
will describe all activities conducted and sightings of marine mammals,
will provide full documentation of methods, results, and interpretation
pertaining to all monitoring, and will summarize the dates and
locations of survey operations and all marine mammals sightings (dates,
times, locations, activities, associated survey activities). The draft
report will also include geo-referenced, timestamped 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 will be provided in
Environmental Systems Research Institute, Inc. (ESRI) shapefile format
and include the Universal Time Coordinated (UTC) date and time,
latitude in decimal degrees, and longitude in decimal degrees. All
coordinates will be referenced to the WGS84 geographic coordinate
system. In addition to the report, all raw observational data will be
made available. The report will summarize the information. A final
report will be submitted within 30 days following resolution of any
comments on the draft report. All draft and final marine mammal
monitoring reports will be submitted to
[[Page 31691]]
<a href="/cdn-cgi/l/email-protection#0c5c5e2245585c224163626578637e65626b5e697c637e787f4c62636d6d226b637a"><span class="__cf_email__" data-cfemail="8ededca0c7dadea0c3e1e0e7fae1fce7e0e9dcebfee1fcfafdcee0e1efefa0e9e1f8">[email protected]</span></a> and <a href="/cdn-cgi/l/email-protection#ef8182899cc1888e9dc186818c868b8a819b8e83c29b8e848aaf81808e8ec1888099"><span class="__cf_email__" data-cfemail="5f3132392c71383e2d7136313c363b3a312b3e33722b3e343a1f31303e3e71383029">[email protected]</span></a>.
PSOs will use standardized electronic data forms to record data.
PSOs will 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 will record a
description of the circumstances. At a minimum, the following
information will be recorded:
1. Vessel name (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).
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 will 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);
m. Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
n. 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);
o. 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);
p. 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;
q. Equipment operating during sighting;
r. Animal's closest point of approach and/or closest distance from
the center point of the acoustic source; and
s. 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 whale is observed at any time by PSOs or
personnel on the project vessel, during surveys or during vessel
transit, SouthCoast Wind will report the sighting information to the
NMFS North Atlantic Right Whale Sighting Advisory System (866-755-6622)
within 2 hours of occurrence, when practicable, or no later than 24
hours after occurrence. North Atlantic right whale sightings in any
location will also be reported to the U.S. Coast Guard via channel 16
and through the WhaleAlert app (<a href="http://www.whalealert.org">www.whalealert.org</a>).
In the event that personnel involved in the survey activities
discover an injured or dead marine mammal, the incident will be
reported to NMFS as soon as feasible by phone (866-755-6622) and by
email (<a href="/cdn-cgi/l/email-protection#2d43404b5e034a4c5f035e595f4c434944434a6d43424c4c034a425b"><span class="__cf_email__" data-cfemail="402e2d26336e2721326e333432212e24292e27002e2f21216e272f36">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#baeae894f3eeea94f7d5d4d3ced5c8d3d4dde8dfcad5c8cec9fad4d5dbdb94ddd5cc"><span class="__cf_email__" data-cfemail="9dcdcfb3d4c9cdb3d0f2f3f4e9f2eff4f3facff8edf2efe9eeddf3f2fcfcb3faf2eb">[email protected]</span></a>). The report will 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, SouthCoast Wind will report the incident to
NMFS by phone (866-755-6622) and by email (<a href="/cdn-cgi/l/email-protection#4a24272c39642d2b3864393e382b242e23242d0a24252b2b642d253c"><span class="__cf_email__" data-cfemail="aac4c7ccd984cdcbd884d9ded8cbc4cec3c4cdeac4c5cbcb84cdc5dc">[email protected]</span></a>
and <a href="/cdn-cgi/l/email-protection#5303017d1a07037d1e3c3d3a273c213a3d340136233c212720133d3c32327d343c25"><span class="__cf_email__" data-cfemail="5f0f0d71160b0f71123031362b302d3631380d3a2f302d2b2c1f31303e3e71383029">[email protected]</span></a>) as soon as feasible. The report
will include the following information:
1. Time, date, and location (latitude/longitude) of the incident;
2. Species identification (if known) or description of the
animal(s) involved;
3. Vessel's speed during and leading up to the incident;
4. Vessel's course/heading and what operations were being conducted
(if applicable);
5. Status of all sound sources in use;
6. Description of avoidance measures/requirements that were in
place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
7. Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
8. Estimated size and length of animal that was struck;
9. Description of the behavior of the marine mammal immediately
preceding and/or following the strike;
10. If available, description of the presence and behavior of any
other
[[Page 31692]]
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).
Determinations
SouthCoast Wind's HRG survey activities are unchanged from those
analyzed in support of the 2021 IHA, with the exception of reductions
in survey effort and vessels. The effects of the activity, taking into
consideration the mitigation and related monitoring measures, remain
unchanged from those evaluated in support of the 2021 IHA, regardless
of the minor increases in estimated take numbers for some marine mammal
species and/or stocks. Specifically, only Level B harassment has been
authorized, which NMFS expects would be of a lower severity,
predominately in the form of avoidance of the sound sources that may
cause a temporary abandonment of the location during active source use
that may result in a temporary interruption of foraging activities for
some species. However, NMFS does not expect that this effect will long-
term or permanent as the acoustic source would be mobile and leave the
area within a specific amount of time for which the animals could
return to the area. Even considering the increased estimated take for
some species, the impacts of these lower severity exposures are not
expected to accrue to a degree that the fitness of any individuals
would be impacted, and therefore, no impacts on the annual rates of
recruitment or survival would result.
As discussed in the previous Federal Register notices (86 FR 27393,
May 20, 2021; 86 FR 38033, July 19, 2021), SouthCoast Wind's project
will occur approximately 50 miles (80.5 km) west of the feeding BIAs
for North Atlantic right whales (February-April) and sei whales (May-
November) and approximately 40 miles (64.4 km) west of feeding BIAs for
humpback whales (March-December) and fin whales (March-October). The
Narragansett Bay cable route corridor is located just to the north of
another fin whale BIA (March-October) south of Martha's Vineyard. These
BIAs are extensive and sufficiently large (705 km\2\ and 3,149 km\2\
for North Atlantic right whales; 47,701 km\2\ for humpback whales;
2,933 km\2\ for fin whales; and 56,609 km\2\ for sei whales), and the
acoustic footprint of the planned survey is sufficiently small (141 m
using the sparker), such that feeding opportunities for these whales
would not be reduced appreciably. Furthermore, given SouthCoast Wind's
reduced vessel presence, the reduced daily vessel tracks, and the
reduced number of days for the project, NMFS expects any impacts from
this project to be less than were expected in association with the
previous 2021-2022 project.
NMFS has also reviewed current information regarding active Unusual
Mortality Events (UMEs) and important habitat, and finds that the
discussion provided for the 2021 IHA remains applicable to this final
IHA. Therefore, in conclusion, 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; (4) SouthCoast
Wind'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, and (5) appropriate monitoring
and reporting requirements are included.
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 Office of Protected Resources (OPR) consults internally whenever
we propose to authorize take for endangered or threatened species.
NMFS OPR has authorized the incidental take of four species of
marine mammals which are listed under the ESA, including the North
Atlantic right, fin, sei, and sperm whale, and has determined that
these activities fall within the scope of activities analyzed in
GARFO's programmatic consultation regarding geophysical surveys along
the U.S. Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021). The consultation
concluded that NMFS' issuance of incidental take authorization related
to these activities are not likely to adversely affect ESA-listed
marine mammals.
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our action (i.e., the issuance of an IHA) with respect
to potential impacts on the human environment. This action is
consistent with categories of activities identified in Categorical
Exclusion B4 (IHAs with no anticipated serious injury or mortality) of
the Companion Manual for NOAA Administrative Order 216-6A, which do not
individually or cumulatively have the potential for significant impacts
on the quality of the human environment and for which we have not
identified any extraordinary circumstances that would preclude this
categorical exclusion. Accordingly, NMFS has determined that the
issuance of the final IHA qualifies to be categorically excluded from
further NEPA review.
Authorization
As a result of these determinations, NMFS has issued an IHA to
SouthCoast Wind for conducting site characterization surveys off
Massachusetts and Rhode Island from May 12, 2023 through May 11, 2024,
provided the previously mentioned mitigation, monitoring, and reporting
requirements are incorporated. The final IHA and SouthCoast Wind's IHA
application can be found on NMFS' website at <a href="https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act">https://www.fisheries.noaa.gov/permit/incidental-take-authorizations-under-marine-mammal-protection-act</a>.
Dated: May 12, 2023.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2023-10592 Filed 5-17-23; 8:45 am]
BILLING CODE 3510-22-P
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