Notice2023-12532
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Offshore of New Jersey and New York
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
June 14, 2023
Effective
June 9, 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 Atlantic Shores Offshore Wind, LLC (Atlantic Shores) to incidentally harass marine mammals during marine site characterization surveys off New Jersey and New York.
Full Text
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<title>Federal Register, Volume 88 Issue 114 (Wednesday, June 14, 2023)</title>
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[Federal Register Volume 88, Number 114 (Wednesday, June 14, 2023)]
[Notices]
[Pages 38821-38845]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-12532]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XC979]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys Offshore of New Jersey and New York
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an Incidental Harassment Authorization
(IHA).
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an incidental harassment authorization (IHA) to
Atlantic Shores Offshore Wind, LLC (Atlantic Shores) to incidentally
harass marine mammals during marine site characterization surveys off
New Jersey and New York.
DATES: This Authorization is effective from June 9, 2023, through June
8, 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.
History of Request
On August 16, 2021, NMFS received a request from Atlantic Shores
for an IHA to take marine mammals incidental to high-resolution
geophysical (HRG) marine site characterization surveys offshore of New
Jersey and New York in the area of the Bureau of Ocean Energy
Management's (BOEM) Commercial Lease of Submerged Lands for Renewable
Energy Development on the Outer Continental Shelf Lease Area (OCS-A)
0499 and associated Export Cable Route (ECR) area. Atlantic Shores
requested authorization to take small numbers of up to 15 species of
marine mammals, by Level B harassment only. On January 27, 2022, NMFS
published a notice of the proposed IHA in the Federal Register (87 FR
4200). After a 30-day public comment period and consideration of all
public comments received, we subsequently issued the IHA, which was
effective from April 20, 2022 through April 19, 2023 (87 FR 24103,
April 22, 2022). A minor correction notice was published on May 5, 2022
(87 FR 26726).
Atlantic Shores conducted the required marine mammal mitigation and
monitoring and did not exceed the authorized levels of take under
previous IHAs issued for surveys offshore of New York and New Jersey
(85 FR 21198, April 16, 2020; 86 FR 21289, April 22, 2021). These
previous monitoring results are available to the public on our website:
<a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization">https://www.fisheries.noaa.gov/action/incidental-take-authorization-atlantic-shores-offshore-wind-llc-marine-site-characterization</a>.
On December 27, 2022, NMFS received a request from Atlantic Shores
for an IHA to take marine mammals incidental to HRG marine site
characterization surveys off of New Jersey and New York in the areas of
BOEM Lease Areas OCS-A 0499 and OCS-A 0549 and associated ECR area.
Following NMFS' review of the application, Atlantic Shores submitted a
[[Page 38822]]
revised request. The application was deemed adequate and complete on
January 10, 2023 (the 2023 request). Atlantic Shores' request was for
the take of 15 species (16 stocks) of marine mammals, by Level B
harassment only. Neither Atlantic Shores nor NMFS expect serious injury
or mortality to result from this activity, and therefore, an IHA is
appropriate. 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.
This request is identical to the activities covered in the IHA
previously issued in 2022. However, NMFS had determined a renewal of
the 2022 IHA is not appropriate in this circumstance due to the
availability of updated marine mammal density information (June 20,
2022) for all species in the project area (<a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>). Because of this, NMFS relied substantially herein, as
appropriate, on the information previously presented in notices
associated with issuance of the 2022 IHA (87 FR 4200, January 27, 2022;
87 FR 24103, April 22, 2022; 87 FR 26726, May 5, 2022). We note that
BOEM had previously segmented Lease Area OCS-A 0499 into Lease Areas
OCS-A 0499 and 0549; thus, the physical lease area is the same as
described in the 2022 IHA. More information can be found on BOEM's
website: <a href="https://www.boem.gov/renewable-energy/state-activities/new-jersey/atlantic-shores-north-ocs-0549">https://www.boem.gov/renewable-energy/state-activities/new-jersey/atlantic-shores-north-ocs-0549</a>.
No changes were made from the proposed to the final IHA.
Description of the Activity and Anticipated Impacts
Overview
Atlantic Shores will conduct geotechnical and HRG marine site
characterization surveys in BOEM Lease Areas OCS-A 0499 and OCS-A 0549
and along potential submarine ECRs (ECRs North and South) that lead to
landfall locations in either New York or New Jersey (refer back to
Figure 1 in 88 FR 19075, March 30, 2023). The survey area is the same
as previously described in the application for the 2022 IHA (see 87 FR
24103, April 22, 2022) and will consist of approximately 1,450,006
acres (5,868 square kilometers (km\2\)) and extends approximately 24
nautical miles (nmi; 44 km) offshore.
The purpose of these surveys are to support the site
characterization, siting, and engineering design of offshore wind
project facilities, including wind turbine generators, offshore
substations, and submarine cables within the Lease Areas and along the
ECRs. As many as three survey vessels will operate concurrently as part
of the surveys. During the survey effort, vessels will operate at a
maximum speed of 3.5 knots (4 miles per hour). Up to 360 survey days
will occur, where a ``survey day'' is defined as a 24-hour activity
period in which active acoustic sound sources are used (Table 1).
Table 1--Number of Survey Days That Atlantic Shores Will Perform the Described HRG Survey Activities
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
Survey area Number of active survey days expected
\1\
----------------------------------------------------------------------------------------------------------------
Lease Areas......................... OCS-A-0499............. 50 120 days total.
OCS-A-0549............. 70
----------------------------------------------------------------------------------------------------------------
Export Cable Route North (ECR North)....................180..
Export Cable Route South (ECR South).....................60..
----------------------------------------------------------------------------------------------------------------
\1\ Surveys in each area may temporally overlap; therefore, actual number of days of activity in a given year
may be less than 360.
Underwater sound resulting from Atlantic Shores' site
characterization survey activities have 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 acoustic sources
operating at <180 kilohertz (kHz). Geotechnical activities have been
discussed previously with regards to past IHAs issued to Atlantic
Shores (see 85 FR 7926, February 12, 2020; 87 FR 24103, April 22, 2022)
and, as no new information has been presented that would change our
determinations on these activities, this information will not be
reiterated here. Atlantic Shores has requested and NMFS has issued an
IHA authorizing the take by Level B harassment only of 15 species of
marine mammals (comprising 16 stocks) incidental to marine site
characterization surveys, specifically in association with the use of
HRG survey equipment. The mitigation, monitoring, and reporting
measures are described in detail later in this document (please see
Mitigation and Monitoring and Reporting).
A detailed description of Atlantic Shores' planned surveys is
provided in the Federal Register notice of the proposed IHA (88 FR
19075, March 30, 2023) and the 2022 Federal Register notice (87 FR
24103, April 22, 2022). Since that time, no changes have been made to
the survey activities. Therefore, a detailed description is not
provided here. Please refer to those Federal Register notices for the
description of the specified activities.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to Atlantic Shores was
published in the Federal Register on March 30, 2023 (88 FR 19075). That
proposed notice described, in detail, Atlantic Shores' proposed
activities, the marine mammal species that may be affected by these
activities, and the anticipated effects on marine mammals while heavily
referencing the previous and similar project described in the 2022
proposed (87 FR 4200, January 27, 2022) and 2022 final notices (87 FR
24103, April 22, 2022). In the March 30, 2023 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.
In total, NMFS received 118 public comment letters, including 84
individual comments from private citizens that were non-responsive to
NMFS' solicitation for public comment specifically on the proposed
authorization for incidental harassment of marine mammals here and/or
discuss topics that are otherwise out of scope for this specific
action. These public comments fall into the following categories:
general opposition to the planned HRG surveys unrelated to the specific
marine mammal incidental take authorization that is the subject of this
action, general opposition to wind energy development or related
[[Page 38823]]
activities, or general opposition to the take of marine mammals under
the MMPA; comments relevant to BOEM's authorities and/or actions; and
other unrelated and/or irrelevant comments to NMFS' decision regarding
the proposed issuance of the subject IHA. Given that many of these
comments were non-responsive to NMFS' solicitation and/or discuss
topics that are out-of-scope for this specific action, these comments
are not described herein or discussed further. NMFS also received five
comment letters from non-governmental organizations (NGOs): Clean Ocean
Action (COA), the Responsible Offshore Development Alliance (RODA), the
Committee For A Constructive Tomorrow (CFACT), and two letters from
local citizen groups (Save Long Beach Island (SaveLBI) and Defend
Brigantine Beach Inc.), of which the latter of these presented a subset
of the same comments submitted by SaveLBI, and therefore, we respond
through our responses to both local citizen groups. Lastly, we received
29 comment letters from private citizens that were considered
substantive/responsive and are addressed below. However, we also note
that these comments from private citizens echoed concerns brought up in
the letters received from the aforementioned organizations. Responses
to all substantive comments are provided below, and all substantive
comments are available 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 see the comment letters for full
details regarding the comments and associated rationale.
Comment: SaveLBI provided comments suggesting that this IHA is a
renewal of the previous year's IHA.
Response: As NMFS stated in the proposed IHA, the proposed action
for which we requested comments was not for a renewal IHA. As described
in the proposed Federal Register notice, we determined that a renewal
IHA was not appropriate due to the release of the new 2022 Duke
University density information (Roberts et al., 2023). Instead, we have
issued a standard 1year IHA that relied heavily on the previously
issued 2022 IHA to Atlantic Shores, as many project details from the
previous 2022 survey remained the same as described for the 2023 survey
(also as described in the proposed Federal Register notice). As we
noted in the proposed IHA and in this 2023 IHA, Atlantic Shores has the
option for a renewal, if specific conditions and criteria are met.
Comment: A number of commenters have stated that NMFS is proposing
to authorize the killing of marine mammals or that a ``take'' equates
to mortality of an animal by project activities. Commenters also
asserted that the killing of marine mammals has been authorized through
previous IHAs.
Response: These comments are founded on the presumption, absent
evidence, that serious injury or mortality is a reasonably anticipated
outcome of Atlantic Shores' specified activity. NMFS emphasizes that
there is no credible scientific evidence available suggesting that
mortality and/or serious injury is a potential outcome of the planned
survey activity, and commenters provide no information to the contrary.
We also refer commenters to the NMFS Greater Atlantic Regional
Fisheries Office (GARFO) 2021 Programmatic Consultation, which finds
that these survey activities are not likely to adversely affect
Endangered Species Act (ESA)-listed marine mammal species, i.e.,
GARFO's analysis conducted pursuant to the ESA finds that marine
mammals are not likely to be taken at all (as that term is defined
under the ESA), much less be taken by serious injury or mortality. That
document is found here: <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>.
As stated in the Federal Register notice (88 FR 19075, March 30,
2023), no mortality or serious injury is expected to occur as a result
of the planned surveys, and there is no scientific evidence indicating
that any marine mammal could experience these as a direct result of
noise from geophysical survey activity. We also note that NMFS has
never authorized the mortality of marine mammals via IHAs previously,
and NMFS may not permit that form of take under the MMPA using the IHA
mechanism. Authorization of mortality and serious injury may only occur
through Incidental Take Regulations (ITRs). Furthermore, the applicant
did not request, and NMFS has not proposed and has not authorized
mortality in any previous HRG IHAs to Atlantic Shores. As the
commenters have not pointed out which IHAs they are referring to, NMFS
cannot comment more specifically.
Comment: COA advises NMFS to reject Incidental Take Authorizations
(ITAs) to Atlantic Shores until the Draft North Atlantic Right Whale
and Offshore Wind Strategy (Draft Strategy) is finalized, and measures
to avoid, minimize, or eliminate harm are determined so that such
measures might be applied to the project. To support its request, COA
further notes that the Draft Strategy affirms that the North Atlantic
right whales (NARW) population is in dire status, as evidenced by the
fact that the potential biological removal (PBR) level is less than
one, which, according to COA, means population impacts from Level A or
B harassment must be avoided, as the NARW population cannot withstand
any mortality/serious injury (M/SI) due to the species low genetic
diversity and resilience to future perturbations.
Response: As identified by COA, in October 2022, NMFS and BOEM
released a draft joint strategy to protect and promote the recovery of
NARWs while responsibly developing offshore wind energy. The draft
strategy identifies three main goals: (1) mitigation and decision-
support tools, (2) research and monitoring, and (3) collaboration,
communication and outreach. It focuses on improving the body of science
and integrating past, present and future efforts related to NARWs and
offshore wind development. In its comment, the COA discusses the PBR
level and the stock's status suggesting that Level B (behavioral)
harassment can have population level impacts. We note that no mortality
or Level A harassment is anticipated or authorized from the Atlantic
Shores proposed site assessment surveys. While NMFS agrees that the
NARW population abundance is alarmingly low (with entanglement in
fishing gear and vessel strikes being the leading causes of NARW
mortality), NMFS disagrees that the type of harassment authorized in
this IHA would adversely impact population levels. The magnitude of
harassment is very low and the severity of any behavioral responses is
limited to temporary displacement and avoidance of the area when some
acoustic sources that have the potential to result in harassment are
active (see Determinations section). Moreover, the MMPA mandates that
NMFS shall issue requested authorizations provided certain findings are
made and that those findings be made based on the best available
science. NMFS has made the required findings, based on the best
available science, and has included mitigation measures, many of which
are included in the Draft Strategy as appropriate for HRG surveys,
designed to effect the least practicable adverse impact on NARWs.
Finalizing the Strategy or similar efforts is not a requirement to
issue ITAs. COA's comment regarding other construction activities is
outside the scope of this
[[Page 38824]]
authorization. NMFS analyzes requests for authorization to harass
marine mammals for wind farm construction as received. The specified
activity in Atlantic Shores' application is limited to HRG site
assessment surveys, not construction.
Comment: COA states that NMFS should pause all ``industrial full-
scale construction (and related activities)'' for offshore wind energy
until the Federal agencies determine the best way to eliminate or avoid
all impacts on NARW.
Response: We note that COA has not provided any suggestions on how
to eliminate and avoid all impacts on the NARW. Therefore, NMFS is not
able to evaluate or consider other suggestions, beyond the mitigation
measures that were already proposed in the Federal Register notice (88
FR 19075, March 30, 2023). If COA wishes to provide additional
suggestions in the future, NMFS would be able to evaluate these in
context with the specific proposed action(s). In the absence of
additional information or proposals regarding further reduction of
impacts to NARWs, NMFS must implement the MMPA as required by the
statute (i.e., upon making the necessary findings (e.g., small numbers;
negligible impact) and prescribing measures affecting the least
practicable adverse impact), as we have done here, NMFS shall authorize
incidental take of marine mammals.
Given the primary risk to NARWs is ship strike, the mitigation
measures that NMFS requires do address this specifically and include: a
requirement that all vessel operators comply with 10 knots (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 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 500 m minimum separation distance has been established; a
requirement that, if an ESA-listed whale is sighted in a vessel's path,
or within 500 m of an underway vessel, the underway vessel must reduce
speed and shift the engine to neutral; a requirement that all vessels
underway must maintain a minimum separation distance of 100 m from all
non-ESA-listed baleen whales; and a requirement that all vessels
underway must, to the maximum extent practicable, attempt to maintain a
minimum separation distance of 50 m from all other marine mammals, with
an understanding that at times this may not be possible (e.g., for
animals that approach the vessel). We have determined that the ship
strike avoidance measures in the IHA are sufficient to ensure the least
practicable adverse impact on species or stocks and their habitat.
Comment: COA states that the applicant's survey activities will
increase the number of vessels in the ocean in the project area, which
would lead to an increased threat of harm by vessel strikes to marine
mammals, specifically NARW. Similarly, members of the public and CFACT
have claimed that animals being displaced out of lower traffic areas
into a higher trafficked area may increase the likelihood of fatal ship
strikes.
Response: NMFS does not anticipate that NARW would be permanently
displaced or displaced for extended periods of time from the area where
Atlantic Shores' marine site characterization surveys would occur, and
commenters do not provide evidence that this effect should be a
reasonably anticipated outcome of the specified activity. We expect
temporary avoidance to occur, at worst, but that is distinctly
different from displacement. Similarly, NMFS is not aware of any
scientific information suggesting that the survey activity would drive
marine mammals into shipping lanes and disagrees that this would be a
reasonably anticipated effect of the specified activities. The
authorized take by Level B harassment is precautionary but considered
unlikely as NMFS' take estimation analysis does not account for the use
of extremely precautionary mitigation measures (e.g., the requirement
for Atlantic Shores to implement a shutdown zone (500 m) that is more
than three times as large as the estimated harassment zone (141 m)).
These requirements are expected to largely eliminate the actual
occurrence of Level B harassment events and to the extent that
harassment does occur, would minimize the duration and severity of any
such events. Therefore, even if a NARW was in the area of the specified
activities, a displacement impact is not anticipated.
Although the primary stressor to marine mammals from the specified
activities is acoustic exposure from the sound source, NMFS takes
seriously the risk of vessel strike and has prescribed measures
sufficient to avoid the potential for ship strike to the extent
practicable. NMFS has required these measures despite a very low
likelihood of vessel strike; vessels associated with the survey
activity will add a discountable amount of vessel traffic to the
specific geographic region and furthermore, vessels towing survey gear
travel at very slow speeds (i.e., roughly 4-5 kn; 7.4-9.3 km/h).
Comment 7: COA and SaveLBI suggest that NMFS address the cumulative
impacts on marine mammals, specifically the NARW and other endangered
marine mammal species, from all vessels associated with Atlantic
Shores' project as well as other projects occurring in the nearby
region. SaveLBI additionally asserts that, because the MMPA refers to
``citizens'' in the plural, and because section 101(a)(5)(A) of the
MMPA refers to findings relating to the total taking over a 5-year (or
less) period, the MMPA requires cumulative impact assessments.
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
[[Page 38825]]
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, Atlantic Shores 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 Policy Act (NEPA)
analysis and (2) that reasonably foreseeable cumulative effects would
also be considered under section 7 of the ESA for listed species, as
appropriate. Accordingly, NMFS has written Environmental Assessments
(EA) that addressed cumulative impacts related to substantially similar
activities in similar locations (e.g., the 2017 Ocean Wind, LLC EA for
site characterization surveys off New Jersey 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 Atlantic
Shores, have been adequately addressed under NEPA in prior
environmental analyses that support NMFS' determination that this
action is appropriately categorically excluded from further NEPA
analysis. NMFS independently evaluated the use of a categorical
exclusion (CE) for issuance of Atlantic Shores' IHA, which included
consideration of extraordinary circumstances.
Separately, the cumulative effects of substantially similar
activities in the northwest Atlantic Ocean have been analyzed in the
past under section 7 of the ESA when NMFS has engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion
for BOEM Lease and Site Assessment Rhode Island, Massachusetts, New
York, and New Jersey Wind Energy Areas (<a href="https://repository.library.noaa.gov/view/noaa/29291">https://repository.library.noaa.gov/view/noaa/29291</a>). Analyzed activities
include those for which NMFS issued previous IHAs (82 FR 31562, July 7,
2017; 85 FR 21198, April 16, 2020; 86 FR 26465, May 10, 2021), which
are similar to those planned by Atlantic Shores under this current IHA
request. This Biological Opinion determined that NMFS' issuance of IHAs
for site characterization survey activities associated with leasing,
individually and cumulatively, are not likely to adversely affect
listed marine mammals. NMFS notes that, while issuance of this IHA is
covered under a different consultation, this Biological Opinion remains
valid.
With regard to SaveLBI's additional assertions that the MMPA's
incidental take authorization provisions require a cumulative impacts
assessment, we reiterate our disagreement. Regardless of the MMPA's
references to ``citizens'' in the plural, there is no guidance offered
by the MMPA, NMFS' implementing regulations, or any other supporting
information, such as the associated legislative history, that an
assessment of cumulative impacts is required under the MMPA. SaveLBI's
reference to the 5-year period, found in section 101(a)(5)(A) of the
MMPA, is not relevant to the issuance of the subject IHA under section
101(a)(5)(D) of the MMPA, and we do not address it further.
Comment 8: COA, SaveLBI, and a member of the public state that they
do not believe the take proposed for authorization related to this
project consists of ``small numbers'' of marine mammals as required by
the MMPA. SaveLBI further states that NMFS' small numbers determination
is not supported scientifically or consistent with the holding in
Natural Resources Defense Council vs. Evans. SaveLBI further advises
that NMFS redefine ``small numbers'' to align with a more science-based
population percentage based on SaveLBI's suggestions where a specific
distinction would be made for ``endangered'' and ``critically
endangered'' species.
Response: NMFS disagrees with the commenters' arguments on the
topic of small numbers. Although there is limited legislative history
available to guide NMFS and an apparent lack of biological underpinning
to the concept, we have worked to develop a reasoned approach to small
numbers. NMFS explains the concept of ``small numbers'' in recognition
that there could also be quantities of individuals taken that would
correspond with ``medium'' and ``large'' numbers. As such, NMFS
considers that one-third of the most appropriate population abundance
number--as compared with the assumed number of individuals taken--is an
appropriate limit with regard to ``small numbers.'' This relative
approach is consistent with the statement from the legislative history
that ``[small numbers] is not capable of being expressed in absolute
numerical limits'' (H.R. Rep. No. 97-228, at 19 (September 16, 1981)),
and relevant case law (Center for Biological Diversity v. Salazar, 695
F.3d 893, 907 (9th Cir. 2012) (holding that the U.S. Fish and Wildlife
Service reasonably interpreted ``small numbers'' by analyzing take in
relative or proportional terms)). In regards to SaveLBI's suggestion
that the one-third number is inconsistent with prior case law, we note
that SaveLBI cited the Natural Resources Defense Council Inc. (NRDC) v.
Evans decision of October 31, 2002 (232 F. Supp. 2d 1003), which was
related to the plaintiffs' motion for a preliminary injunction.
Ultimately, after parties' cross-motions for summary judgment, the
Evans court held that NMFS' regulatory definition of small numbers
(which NMFS did not apply here) improperly conflated the small numbers
and negligible impact issues (NRDC v. Evans, 279 F. Supp. 2d 1129 (N.D.
Cal. 2003)). Contrary to SaveLBI's suggestion, the Evans court
expressly stated that it was not setting any numerical limit for small
numbers. NRDC v. Evans, 279 F. Supp. 2d at 1153. As for SaveLBI's
suggestion to reconsider small numbers specifically for NARW, the
argument to establish a small numbers threshold on the basis of stock-
specific context is unnecessarily duplicative of the required
negligible impact finding, in which relevant biological and contextual
factors are considered in conjunction with the amount of take.
Comment 9: SaveLBI states that NMFS authorizing take by harassment
for 33 percent of a marine mammal population is approximately 43 times
the potential biological removal (PBR) level of (0.7) defined for NARW.
Response: SaveLBI inappropriately conflates Level B harassment
(i.e., behavioral disturbance)--the only type of taking authorized
through this IHA--with mortality and serious injury through its
reference to the stock's PBR level. A stock's PBR level is ``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
[[Page 38826]]
population.'' PBR is not an appropriate metric to evaluate Level B
harassment, which does not result in mortality or serious injury of
marine mammals (i.e., removals from the population), and NMFS has
described and used an analytical framework that is appropriate. We
consider levels of ongoing anthropogenic mortality from other sources,
such as commercial fisheries, in relation to calculated PBR levels as
part of the environmental baseline in our negligible impact analysis.
Comment: COA expresses their concern over potential ``masking'' of
NARW calls, which could reduce breeding and foraging opportunities or
impair navigation and transiting.
Response: Fundamentally, the masking effects to any one individual
whale from one survey are expected to be minimal. Masking is referred
to as a chronic effect because one of the key harmful components of
masking is its duration--the fact that an animal would have reduced
ability to hear or interpret critical cues becomes much more likely to
cause a problem the longer it is occurring. Also, inherent in the
concept of masking is the fact that the potential for the effect is
only present during the times that the animal and the source are in
close enough proximity for the effect to occur (and further, this time
period would need to coincide with a time that the animal was utilizing
sounds at the masked frequency) and as our analysis both quantitatively
and qualitatively indicates, we do not expect these exposures with the
potential for masking to be of a long duration within a given day
because of the relative movement of whales and vessels. Further,
because of the relatively low density of mysticetes and relatively
large area over which the vessels travel, we do not expect any
individual whales to be exposed to potentially masking levels from
these surveys for more than a few days in a year.
As noted above, any masking effects of this survey are expected to
be limited and brief, if present. Given the likelihood of significantly
reduced received levels beyond even short distances from the survey
vessel combined with the short duration of potential masking and the
lower likelihood of extensive additional contributors to background
noise offshore and within these short exposure periods, we believe that
the incremental addition of the survey vessel is unlikely to result in
more than minor and short-term masking effects likely occurring to some
small number of the same individuals captured in the estimate of
behavioral harassment.
Comment: COA is concerned regarding the number of species that
could be impacted by the activities as well as a lack of baseline data
being available for species in the area (e.g., harbor seals),
specifically their habitat use of the waters in and around Atlantic
Shores' lease areas. In addition, COA has stated that NMFS did not
adequately address the potential for cumulative impacts to bottlenose
dolphins from Level B harassment over several years of project
activities.
Response: NMFS repeats our response from the previous Federal
Register notice (87 FR 24103, April 22, 2022), as it remains applicable
to the comment provided by COA.
We appreciate the concern expressed by COA. NMFS utilizes the best
available science when analyzing which species may be impacted by an
applicant's proposed activities. Based on information found in the
scientific literature as well as based on density models developed by
Duke University, all marine mammal species included in the proposed
Federal Register notice have some likelihood of occurring in Atlantic
Shores' survey areas. Furthermore, the MMPA requires us to evaluate the
effects of the specified activities in consideration of the best
scientific evidence available and, if the necessary findings are made,
to issue the requested take authorization. The MMPA does not allow us
to delay decision making in hopes that additional information may
become available in the future. Furthermore, NMFS notes that it has
previously addressed discussions on cumulative impact analyses in
previous comments and references COA back to these specific responses
in this notice.
Regarding the lack of baseline information cited by COA, with
specific concern pointed out for harbor seals, NMFS points towards two
sources of information for marine mammal baseline information: the
Ocean/Wind Power Ecological Baseline Studies, January 2008--December
2009 completed by the New Jersey Department of Environmental Protection
in July 2010 (<a href="https://dspace.njstatelib.org/xmlui/handle/10929/68435">https://dspace.njstatelib.org/xmlui/handle/10929/68435</a>)
and the Atlantic Marine Assessment Program for Protected Species
(AMAPPS; <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected">https://www.fisheries.noaa.gov/new-england-mid-atlantic/population-assessments/atlantic-marine-assessment-program-protected</a>)
with annual reports available from 2010 to 2021 (<a href="https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species">https://www.fisheries.noaa.gov/resource/publication-database/atlantic-marine-assessment-program-protected-species</a>) that cover the areas across the
Atlantic Ocean. NMFS has duly considered this and all available
information. Based on the information presented, NMFS has determined
that no new information has become available nor do the commenters
present additional information that would change our determinations
since the publication of the proposed notice.
Comment: COA, RODA, Defend Brigantine Beach Inc., and members of
the public assert that the strandings that have occurred in the New
Jersey/New York region since December 2022 could be connected to
offshore wind pre-construction activities.
Response: NMFS reiterates that there is no evidence that noise
resulting from offshore wind development-related site characterization
surveys could potentially cause marine mammal stranding, and there is
no evidence linking recent large whale mortalities and currently
ongoing surveys. The commenters offer no such evidence. NMFS will
continue to gather data to help us determine the cause of death for
these stranded whales. We note the Marine Mammal Commission's recent
statement: ``There continues to be no evidence to link these large
whale strandings to offshore wind energy development, including no
evidence to link them to sound emitted during wind development-related
site characterization surveys, known as HRG surveys. Although HRG
surveys have been occurring off New England and the mid-Atlantic coast,
HRG devices have never been implicated or causatively-associated with
baleen whale strandings.'' (Marine Mammal Commission Newsletter, Spring
2023).
There is an ongoing Unusual Mortality Event (UME) for humpback
whales along the Atlantic coast from Maine to Florida, which includes
animals stranded since 2016. Partial or full necropsy examinations were
conducted on approximately half of the whales. Necropsies were not
conducted on other carcasses because they were too decomposed, not
brought to land, or stranded on protected lands (e.g., national and
state parks) with limited or no access. Of the whales examined (roughly
90), about 40 percent had evidence of human interaction, either ship
strike or entanglement. Vessel strikes and entanglement in fishing gear
are the greatest human threats to large whales. The remaining 50
necropsied whales either had an undetermined cause of death (due to a
limited examination or decomposition of the carcass), or had other
causes of death including parasite-caused organ damage and starvation.
[[Page 38827]]
As discussed herein, HRG sources may behaviorally disturb marine
mammals (e.g., avoidance the immediate area). These HRG surveys are
very different from seismic airguns used in oil and gas surveys or
tactical military sonar. They produce much smaller impact zones
because, in general, they have lower source levels and produce output
at higher frequencies. The area within which HRG sources might
behaviorally disturb a marine mammal is orders of magnitude smaller
than the impact areas for seismic airguns or military sonar. Any marine
mammal exposure would be at significantly lower levels and shorter
duration, which is associated with less severe impacts to marine
mammals.
Comment: COA suggests that NMFS provide evidence that whale
occurrence increased in this area during the winter.
Response: NMFS directs COA to Duke University's Marine Geospatial
Ecology Laboratory's 2022 density data (Roberts et al., 2023), which
NMFS considers to be the best available science regarding NARW
occurrence (version 12; <a href="https://seamap.env.duke.edu/models/mapper/EC?species=Eubalaena%20glacialis">https://seamap.env.duke.edu/models/mapper/EC?species=Eubalaena%20glacialis</a>). Based on the dataset, humpback whale
occurrence off New Jersey is fairly consistent year-round, with
reductions noted starting around July through August, and densities
increasing again starting in September. Humpback whales, as the
population has grown, are seen more often in the Mid-Atlantic. Along
the New Jersey shore, these whales may be following their prey (small
fish) which were reportedly close to shore this winter. These prey also
attract fish that are of interest to recreational and commercial
fishermen, which increases the number of boats in these areas.
Comment: COA insists that NMFS provide ``clarity and due process''
for the ``determination of accountability,'' specifically related to
understanding how much accumulated Level A harassment and Level B
harassment from offshore wind energy development and other activities
is too much.
Response: NMFS is unclear regarding the meaning of COA's references
to ``clarity and due process,'' or under what statutory requirement COA
believes that an ambiguous ``determination of accountability'' is
required. We do note, as discussed elsewhere herein, that NMFS has made
all necessary findings under the MMPA in support of issuance of the
subject IHA, and is similarly compliant with other relevant statutory
requirements, e.g., NEPA, ESA. We also refer to the previous response
addressing concerns regarding the need for additional analysis of
cumulative impacts.
Comment: COA states that BOEM has no legal authority for permitting
offshore geotechnical and geophysical survey activities, based on text
from the proposed BOEM Renewable Energy Modernization proposed rule (88
FR 5968, January 30, 2023; 88 FR 19578, April 3, 2023). They further
state that this has allowed for no oversight with regards to surveys
off New Jersey and New York and that they do not understand how BOEM
can make assertions without regulations/guidance for HRG survey work.
COA further states that, given NMFS' regulatory authority under the
MMPA and ESA, they should oversee the governance of surveys.
Response: NMFS' statutory authority for this particular action is
limited to authorizing incidental take of marine mammals. COA
associates these authorities under the MMPA and ESA with a suggestion
that NMFS should ``oversee the governance of surveys,'' but without
further explanation of why this would be appropriate or authorized by
statute. NMFS respectfully refers the commenter to BOEM, the agency
with responsibility for managing development of U.S. Outer Continental
Shelf energy and mineral resources in an environmentally and
economically responsible way.
Comment: RODA states that NMFS should cease what it describes as a
segmented phase-by-phase and project-by-project approach to IHAs, and
suggests that NMFS provide additional clarification and transparency on
the ITA process for offshore wind actions and how an ITR is determined
as appropriate versus an IHA. They also state that this process and
information should be made publicly available, and recommend that NMFS
improve the transparency of this process. Conversely, COA suggests that
the IHA, as proposed, is for two separate offshore wind energy projects
(Atlantic Shores 1 and Atlantic Shores 2) and their relevant export
cable areas and that requests covering more than one project should be
submitted and reviewed separately, rather than collectively.
Response: The MMPA and its implementing regulations allow, upon
request, the incidental take of small numbers of marine mammals by U.S.
citizens who engage in a specified activity (other than commercial
fishing) within a specified geographic region. NMFS responds to these
requests by authorizing the incidental take of marine mammals if it
finds that the taking would be of small numbers, have no more than a
``negligible impact'' on the marine mammal species or stock, and not
have an ``unmitigable adverse impact'' on the availability of the
species or stock for subsistence use. NMFS emphasizes that an IHA does
not authorize the specified activity itself but rather, authorizes the
take of marine mammals incidental to the ``specified activity'' for
which incidental take coverage is being sought. In this case, NMFS is
responding to the applicant, Atlantic Shores and the specified activity
described in their application and making necessary findings on the
basis of what was provided in their application. The authorization of
Atlantic Shores' specified activity (note, not the authorization of
takes incidental to that activity) is not within NMFS' jurisdiction.
For transparency on NMFS' ITA process, we direct RODA to our
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>) and the detailed
application instructions (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/apply-incidental-take-authorization">https://www.fisheries.noaa.gov/national/marine-mammal-protection/apply-incidental-take-authorization</a>) for
additional information on the ITA process, which is consistently
applicable across all types of activities (e.g., offshore wind,
construction, oil and gas, military, research, HRG). These resources
describe, in detail, step-by-step instructions on what is needed in an
ITA request, what is evaluated, and how determinations are made for any
specific project. This information is and has remained publicly
available.
Regarding clarification on IHAs versus ITRs, as described on our
website, IHAs are 1-year authorizations and ITRs are 5-year regulations
that allow for the issuance of Letters of Authorization (LOA). An ITR
must be used if authorization of take by mortality is appropriate.
However, both options are available for applicants requesting
authorization of harassment only. While applicants may request a 5-year
regulation for HRG survey activities, NMFS has not received any
requests like that to date. Instead, applicants have most often
requested 1-year authorizations to cover a single year of activities at
a single time.
Finally, NMFS is required to consider applications upon request,
and the MMPA does not provide NMFS with authority to dictate an
applicant's definition of its specified activity (e.g., separation/
combination of survey effort for Atlantic Shores 1 and 2). An
individual company owning multiple lease areas may apply for a single
authorization to conduct site characterization surveys across a
combination of those lease areas, such
[[Page 38828]]
as activities conducted by Orsted (see 85 FR 63508, October 8, 2020; 87
FR 13975, March 11, 2022; 87 FR 61575, October 12, 2022) or may request
a single authorization for a single project or lease area. Regarding
the RODA suggestion, to date, NMFS has not received any joint HRG
applications between multiple applicants. While an individual company
owning multiple lease areas may apply for a single authorization to
conduct site characterization surveys across a combination of those
lease areas (see 85 FR 63508, October 8, 2020; 87 FR 13975, March 11,
2022), this is not applicable in this case. In the future, if
applicants wish to undertake this approach, NMFS is open to the receipt
of joint applications and additional discussions on joint actions.
Comment: RODA expressed concern regarding the potential for
increased uncertainty in estimates of marine mammal abundance resulting
from wind turbine presence during aerial surveys and potential effects
of NMFS' ability to continue using current aerial survey methods to
fulfill its mission of precisely and accurately assessing protected
species.
Response: NMFS has determined that offshore wind development
projects may impact several Northeast Fisheries Science Center (NEFSC)
surveys, including aerial surveys for protected species, and NEFSC has
developed and implemented a Federal survey mitigation program to
mitigate the impacts to these surveys. However, this impact is outside
the scope of analysis related to the authorization of take incidental
to Atlantic Shores' specified activity under the MMPA.
Comment: RODA expressed concerns with the high amount of increased
vessel traffic associated with offshore wind projects throughout the
region in areas transited or utilized by certain protected resources as
well as concern for vessel noise.
Response: Atlantic Shores did not request authorization for take
incidental to vessel traffic during marine site characterization
surveys. Nevertheless, NMFS analyzed the potential for vessel strikes
to occur during the survey and determined that the potential for vessel
strikes is so low as to be discountable. NMFS does not authorize any
take of marine mammals incidental to vessel strike resulting from the
survey. If Atlantic Shores were to strike a marine mammal with a
vessel, this would be an unauthorized take and a violation of the MMPA.
This gives Atlantic Shores a strong incentive to operate its vessels
with all due caution and to effectively implement the suite of vessel
strike avoidance measures called for in the IHA. Section 4(g) in the
issued IHA contains a suite of non-discretionary requirements
pertaining to ship strike avoidance, including vessel operation
protocols and monitoring. To date, NMFS is not aware of any site
characterization vessels from HRG surveys reporting a vessel strike
within the United States. When considered in the context of low overall
probability of any vessel strike by Atlantic Shores' vessels, given the
limited additional survey-related vessel traffic relative to existing
traffic in the survey area, the comprehensive visual monitoring, and
other additional mitigation measures described herein, NMFS believes
these measures are sufficiently protective to avoid ship strike. These
measures are described fully in the Mitigation section below and
include, but are not limited to: training for all vessel observers and
captains, daily monitoring of North Atlantic right whale Sighting
Advisory System, WhaleAlert app, and United States Coast Guard (USCG)
Channel 16 for situational awareness regarding NARW presence in the
survey area, communication protocols if whales are observed by any
Atlantic Shores personnel, vessel operational protocol should any
marine mammal be observed, and visual monitoring.
The potential for impacts related to an overall increase in the
amount of vessel traffic due to offshore wind development is separate
from the aforementioned analysis of potential for vessel strike during
Atlantic Shores' specified survey activities and is not discussed
further as this is out-of-scope of this specific action.
Comment: RODA refers to the Marine Mammal Commission's previous
comments on the matter of effects on marine mammals from offshore wind
development, expressing that ``they are more knowledgeable on impacts
of pile driving and acoustics to marine mammals.''
Response: In response to RODA's deferral to the Marine Mammal
Commission, we note that the Commission has questioned in its previous
public comment submissions whether incidental take authorizations are
even necessary for surveys utilizing HRG equipment (i.e., take is
unlikely to occur) and has subsequently informed NMFS that they would
no longer be commenting on such actions, which includes Atlantic
Shores' activity described herein. Additionally, comments related to
pile driving and offshore wind construction are outside the scope of
this IHA and, therefore, are not discussed.
Comment: RODA refers to the September 9, 2020 letter submitted by
17 Environmental NGOs and echoes their concerns.
Response: NMFS refers RODA to the Federal Register notice published
at 85 FR 63508 (October 8, 2020) for our responses to the Environmental
NGOs' letter.
Comment: RODA expressed concern that negative impacts to local
fishermen and coastal communities as a result of a potentially adverse
impact to marine mammals (e.g., vessel strike resulting in death or
severe injury) were not mentioned nor evaluated in ``the IHA request
for this project.'' RODA also emphasized concern about the lack of
adequate analysis of individual and cumulative impacts to marine
mammals, noting existing fishery restrictions as a result of other NARW
protections.
Response: Neither the MMPA nor our implementing regulations require
NMFS to analyze impacts to other industries (e.g., fisheries) or
coastal communities from issuance of an ITA. As detailed in the
proposed IHA notice, NMFS has analyzed the potential for adverse
impacts such as vessel strikes to marine mammals, including NARWs, as a
result of Atlantic Shores' planned site characterization survey
activities and determined that no serious injury or mortality is
anticipated. In fact, as discussed in the Determinations section later
in this document, no greater than low-level behavioral harassment is
expected for any affected species. For the NARW, in particular, it is
considered unlikely, as a result of the required precautionary shutdown
zone (i.e., 500 m versus the estimated maximum Level B harassment zone
of 141 m), that the authorized take (by Level B harassment only) would
occur at all.
In regards to the cumulative impacts, we reiterate our response
from Comment 7 here as it remains applicable to this comment as well.
Comment: RODA suggests NMFS modify the exclusion zone for all
marine mammals to 500 m during nighttime hours.
Response: RODA suggests that the shutdown zone should be increased
at night for all marine mammals to match that required for NARW because
of its contention that Protected Species Observers (PSOs) may not be
able to differentiate between different species of cetaceans in low-
light conditions. However, the IHA empowers the PSO to, in cases where
identification may be uncertain, base decisions regarding
implementation of mitigation on best professional judgment. This means
that,
[[Page 38829]]
if the PSO believes that an observed marine mammal may be a NARW but is
not sure, they have the authority to call for shutdown of the acoustic
source. NMFS does not agree that expansion of the shutdown zone for all
species during nighttime conditions is warranted.
Comment: RODA suggests that in the event of a ship strike by an
Atlantic Shores vessel, the applicant is also required to notify the
United States Coast Guard via VHF Channel 16.
Response: As stated in the IHA, in the event of a ship strike of a
marine mammal by any vessel involved in the survey activities, Atlantic
Shores is required to report the incident to NMFS as soon as feasible.
Given this, RODA does not adequately explain why this requirement would
be useful nor why it should be required independent of the one
described already in the IHA. As such, NMFS does not agree that it
should be included in the IHA.
Comment: RODA states that the IHA should not have the option to be
renewed or should face additional scrutiny if (a) there are takes not
authorized by the initial notice (Level A harassment or other takes of
species not included in this IHA); and (b) if HRG surveys are proven to
cause harm to marine mammals.
Response: With regards to RODA's first suggestion, NMFS has
included language in the final IHA, which was presented in the draft
IHA during the public comment period, that includes a relevant
provision in the General Conditions (3(c)): ``The taking by injury,
serious injury or death of any of the species listed in Table 1 (of the
IHA) or any taking of any other species of marine mammal is prohibited
and may result in the modification, suspension, or revocation of this
IHA.''
In speaking to the second point described by RODA, NMFS would
evaluate IHAs on a case-by-case basis, as necessary, if new information
was presented.
Comment: Members of the public, CFACT, and SaveLBI state that they
are against the idea that this project is exempt from further analysis
under NEPA based upon use of the Categorical Exclusion and suggest that
the IHA violates the requirements of NEPA. CFACT and SaveLBI further
state that this project requires preparation of a full scale
Environmental Impact Assessment/Environmental Impact Statement (EIA/
EIS) under NEPA.
Response: NMFS does not agree with the commenters. A categorical
exclusion (CE) is a category of actions that an agency has determined
does not individually or cumulatively have a significant effect on the
quality of the human environment and is appropriately applied for such
categories of actions so long as there are no extraordinary
circumstances present that would indicate that the effects of the
action may be significant. Extraordinary circumstances are situations
for which NOAA has determined further NEPA analysis is required because
they are circumstances in which a normally excluded action may have
significant effects. A determination of whether an action that is
normally excluded requires additional evaluation because of
extraordinary circumstances focuses on the action's potential effects
and considers the significance of those effects in terms of both
context (consideration of the affected region, interests, and
resources) and intensity (severity of impacts). Potential extraordinary
circumstances relevant to this action include (1) adverse effects on
species or habitats protected by the MMPA that are not negligible; (2)
highly controversial environmental effects; (3) environmental effects
that are uncertain, unique, or unknown; and (4) the potential for
significant cumulative impacts when the proposed action is combined
with other past, present, and reasonably foreseeable future actions.
The relevant NOAA CE associated with issuance of incidental take
authorizations is CE B4, ``Issuance of incidental harassment
authorizations under section 101(a)(5)(A) and (D) of the MMPA for the
incidental, but not intentional, take by harassment of marine mammals
during specified activities and for which no serious injury or
mortality is anticipated.'' This action falls within CE B4. In
determining whether a CE is appropriate for a given incidental take
authorization, NMFS considers the applicant's specified activity and
the potential extent and magnitude of takes of marine mammals
associated with that activity along with the extraordinary
circumstances listed in the Companion Manual for NOAA Administrative
Order (NAO) 216-6A and summarized above. The evaluation of whether
extraordinary circumstances (if present) have the potential for
significant environmental effects is limited to the decision NMFS is
responsible for, which is issuance of the incidental take
authorization. While there may be environmental effects associated with
the underlying action, potential effects of NMFS' action are limited to
those that would occur due to the authorization of incidental take of
marine mammals. NMFS prepared numerous Environmental Assessments (EAs)
analyzing the environmental impacts of the categories of activities
encompassed by CE B4, which resulted in Findings of No Significant
Impacts (FONSIs) and, in particular, numerous EAs prepared in support
of issuance of IHAs related to similar survey actions are part of NMFS'
administrative record supporting CE B4. These EAs demonstrate the
issuance of a given incidental harassment authorization does not affect
other aspects of the human environment because the action only affects
the marine mammals that are the subject of the incidental harassment
authorization. These EAs also addressed factors in 40 CFR 1508.27
regarding the potential for significant impacts and demonstrate the
issuance of incidental harassment authorization for the categories of
activities encompassed by CE B4 do not individually or cumulatively
have a significant effect on the human environment.
Specifically for this action, NMFS independently evaluated the use
of the CE for issuance of Atlantic Shores' IHA, which included
consideration of extraordinary circumstances. As part of that analysis,
NMFS considered including whether this IHA issuance would result in
cumulative impacts that could be significant. In particular, the
issuance of an IHA to Atlantic Shores is expected to result in minor,
short-term behavioral effects on marine mammal species due to exposure
to underwater sound from site characterization survey activities.
Behavioral disturbance is expected to occur intermittently in the
vicinity of Atlantic Shores' survey area during the 1-year timeframe.
Level B harassment will be reduced through use of mitigation measures
described herein. Additionally, as discussed elsewhere, NMFS has
determined that Atlantic Shores' 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), which concluded surveys such as those planned by Atlantic Shores
are not likely to adversely affect ESA-listed species or adversely
modify or destroy critical habitat. Accordingly, NMFS has determined
that the issuance of this IHA will result in no more than negligible
(as that term is defined by the Companion Manual for NAO 216-6A)
adverse effects on species protected by the ESA and the MMPA.
Further, the issuance of this IHA will not result in highly
controversial environmental effects or result in environmental effects
that are uncertain,
[[Page 38830]]
unique, or unknown because numerous entities have been engaged in site
characterization surveys that result in Level B harassment of marine
mammals in the United States. This type of activity is well documented;
prior authorizations and analysis demonstrate issuance of an IHA for
this type of action only affects the marine mammals that are the
subject of the specific authorization and, thus, no potential for
significant cumulative impacts are expected, regardless of past,
present, or reasonably foreseeable actions, even though the impacts of
the action may not be significant by itself. Based on this evaluation,
we concluded that the issuance of the IHA qualifies to be categorically
excluded from further NEPA review.
Lastly, as NMFS has already stated, the specified activity
identified in this IHA is not for construction activities related to
offshore wind but instead for site characterization surveys routinely
undertaken by applicants for site assessment. Therefore, any comments
related to construction activities are out-of-scope for this action.
Comment: CFACT stated that if a species is displaced due to survey
activities this may pressure the prey and food supplies of other
species and result in food scarcity.
Response: Given the relatively low and temporary impacts expected
from site characterization surveys, NMFS does not expect foraging
activities for any species to change to a level that could cause a
reduction of individual or species fitness. While NMFS has stated that
some temporary avoidance of some species may occur (e.g., NARWs), these
effects would be temporary and short-term with animals being able to
move away from the vessel and return to the site after the vessel has
passed. Even in the event that species are temporarily displaced into
parallel habitat, given no known concentrated and primary foraging
aggregations in the New Jersey/New York region for any species included
in the IHA, we do not expect this to be a likely outcome of these
surveys.
Comment: SaveLBI and CFACT has made the assumption that HRG surveys
may ``block'' the migration of NARWs, or at least seriously disrupt
them. CFACT further states that this would mean 100 percent of the
migratory corridor would be impacted instead of the 2.11 percent that
NMFS calculated in the proposed notice. Similarly, SaveLBI states that
NMFS did not accurately present the NARW migration corridor against
Atlantic Shores' survey area. They assert that how NMFS described the
overlap is misleading by providing the large spatial area of the
migratory corridor. They also cite the 2015 Duke University density
models to describe the highest presence of NARWs in the project area.
Response: None of the commenters have provided any evidence or
justification that HRG surveys would fully ``block'' the migration of
NARWs in the area, so NMFS cannot evaluate this information beyond what
is described here. There is no scientific evidence that HRG signals,
which are of low intensity and consist of small distances to the Level
B harassment threshold (141 m at the largest based on sparker usage),
would impede NARW migration or the movements of any marine mammal
species. Furthermore, given the relatively small size of the largest
harassment zone (141 m), not even accounting for the required 500 m
vessel separation distance for NARW from survey vessels, we note that
the comparison of the width of the migratory corridor is not the entire
survey area planned by Atlantic Shores. Instead, this width is
determined by the size of the harassment zone at any given moment in
the survey, a tiny portion of the total survey area.
NMFS disagrees with SaveLBI's assertion regarding NARW migratory
habitat. As we previously stated above, NARW migratory habitat is very
large in comparison to the overall size of Atlantic Shores' survey area
but also, importantly, we do not expect any meaningful or significant
impacts to important behavior that may occur within the portion of this
habitat that may be impacted by the specified activity. Because of
this, we expect that any potential exposures NARWs may experience when
transiting the migratory corridor would not result in more than
behavioral harassment to a minor degree. Furthermore, as we stated
above, the largest acoustic source is producing a relatively small
harassment zone (141 m) from the vessel and that Atlantic Shores'
surveys will not constitute the entire width of the migratory corridor.
As is necessary for authorizations issued under the MMPA, we have fully
evaluated any potential impacts to both the behaviors of marine mammals
(including NARWs) and to their habitats to make our negligible impact
determination.
Furthermore, NMFS is not aware of any scientific literature, data,
or reports that support this assertion. If the commenters were willing
to share their data, NMFS would be able to take this under
consideration. However, as it currently stands, there is no credible
evidence that we are aware of that states that disturbances would
physically ``block'' the migration of NARWs.
Lastly, we also note here that SaveLBI references the Duke
University density models for the U.S. Atlantic and Gulf of Mexico from
2015 (<a href="https://seamap.env.duke.edu/models/Duke-EC-GOM-2015/">https://seamap.env.duke.edu/models/Duke-EC-GOM-2015/</a>). NMFS did
not use this data in its analysis as much more recent data has since
been released that NMFS has determined to constitute the best available
science. NMFS refers SaveLBI to the more recent Roberts et al. (2023)
density models for NARWs (version 12). Based on this data, it appears
that December-April are the highest density months with densities
dropping off into the summer.
Comment: A private citizen commented that the ``wind wake'' effect
from offshore wind farms would reduce annual primary production that
some species use as a food source.
Response: NMFS notes that this action, as was proposed for Atlantic
Shores, is not for the construction of an offshore wind farm but for a
site characterization survey. As such, comments related to construction
specifically are out of scope for this specific action.
Comment: CFACT provided a comment stating that Atlantic Shores'
proposal is premature because the Atlantic Shores Wind Project has not
been approved and harassment should not be authorized for speculative
projects.
Response: The MMPA does not require that NMFS ascertain whether a
proposed project will be approved or not prior to issuing requested
incidental take authorizations. Furthermore, as previously discussed,
NMFS considers applications upon request and the issuance of this
authorization is separate from any construction activities directly
relevant to offshore wind farms.
Comment: CFACT and SaveLBI indicated that they believe the survey
area to be too large for the described proposed surveys as the
geographical scope of the survey does not seem to match up with the
stated site characterization survey area. Commenters justify this by
saying that the export cable routes were not previously described in
BOEM's Construction and Operations Plans (COP) and Notice of Intent
(NOI) and therefore, cannot be included in the scope of Atlantic
Shores' requested activities.
Response: As previously stated, it is not in NMFS' jurisdiction to
dictate how and where an applicant's activities should be performed.
Under the MMPA, NMFS must analyze and make findings, if possible, based
on the specified
[[Page 38831]]
activity as described by the applicant. Any stakeholder comments
regarding the geographical scope and size of survey activities or what
information is or is not included in BOEM's COP and NOI (i.e.,
inclusion of the export cable routes, wind turbine generator placement/
locations) are out of scope for the described proposed action as BOEM,
not NMFS, is in charge of leasing and activities occurring within a
defined area and region.
Comment: A member of the public has expressed concern that the
proposed HRG surveys will cause irreparable damage to marine mammal
habitat.
Response: NMFS does not expect impacts or damage to marine mammal
habitat from HRG surveys. This is due, in part, to the limited area of
effect from the acoustic sources as compared to the entire habitat
extent (141 m maximum using the sparker) as well as the temporary and
localized nature of the acoustic sources themselves. Temporary
avoidance of marine mammals and their prey may occur at some points,
but these are expected to be localized and few, with occurrence
patterns returning to normal levels once the acoustic source has been
turned off and/or after the survey vessel has moved. No physical
impacts are expected to occur that would change the habitat in any way
during the acoustic surveys (i.e., no destruction of the seabed, any
nearby reefs, or removal of sediment or bottom resources that fish may
use). Because of this, NMFS has determined that all impacts to the
marine environment and habitat are considered negligible.
Comment: SaveLBI requests that NMFS explain why a 20 decibel (dB)
propagation loss coefficient was applicable to the analysis presented
in the proposed notice or to go back and rerun the analysis using a 15
dB propagation loss coefficient.
Response: SaveLBI states that NMFS' assumption that use of a 20logR
transmission loss factor (i.e., spherical spreading) is inappropriate
and states that ``According to a number of scientific sources, the use
of a noise propagation loss coefficient of 20 dB per tenfold increase
in distance represents ``spherical spreading'' and is only appropriate
in the ``near field'' where the calculated horizontal distance is
comparable with the water depth. However, SaveLBI does not cite any
such scientific sources, so NMFS must evaluate SaveLBI's
recommendations based only on its comment.
A major component of transmission loss is spreading loss and from a
point source in a uniform medium, sound spreads outward as spherical
waves (``spherical spreading'') (Richardson et al., 1995). In water,
these conditions are often thought of as being related to deep water,
where more homogenous conditions may be likely. However, the
theoretical distinction between deep and shallow water is related more
to the wavelength of the sound relative to the water depth versus the
water depth itself. Therefore, when the sound produced is in the
kilohertz range, where wavelength is relatively short, much of the
continental shelf may be considered ``deep'' for purposes of evaluating
likely propagation conditions.
As described in the previous Federal Register notice of proposed
IHA (87 FR 4200, January 27, 2022), the area of water ensonified at or
above the root mean square (RMS) sound pressure level 160 dB threshold
was calculated using a simple model of sound propagation loss, which
accounts for the loss of sound energy over increasing range. Our use of
the spherical spreading model (where propagation loss = 20 * log
[range]; such that there would be a 6-dB reduction in sound level for
each doubling of distance from the source) is a reasonable
approximation over the relatively short ranges involved and is
suggested for use in our HRG guidance (NMFS, 2020). Use of a spherical
spreading model in this case is also consistent with a recent
publication regarding HRG (Ruppel et al., 2022), wherein the authors
state that spherical spreading dominates even in shallow water depths,
at the frequencies of most HRG surveys. Even in conditions where
cylindrical spreading (where propagation loss = 10 * log [range]; such
that there would be a 3-dB reduction in sound level for each doubling
of distance from the source) may be appropriate (e.g., non-homogenous
conditions where sound may be trapped between the surface and bottom),
this effect does not begin at the source. In any case, spreading is
usually more or less spherical from the source out to some distance and
then may transition to cylindrical (Richardson et al., 1995). For these
types of surveys, NMFS has determined that spherical spreading is a
reasonable assumption even in relatively shallow waters (in an absolute
sense) as the reflected energy from the seafloor will be much weaker
than the direct source and the volume influenced by the reflected
acoustic energy would be much smaller over the relatively short ranges
involved.
In support of its position, SaveLBI cites several examples of use
of practical spreading (a useful real-world approximation of conditions
that may exist between the theoretical spreading modes of spherical and
cylindrical; 15logR) in asserting that this approach is also
appropriate here. However, as NMFS has previously stated to SaveLBI,
these examples (U.S. Navy construction at Newport, RI, and NOAA
construction in Ketchikan, AK) are not relevant to the activity at
hand. First, these actions occur in even shallower water (e.g., less
than 10 m for Navy construction). Of greater relevance to the action
here, pile driving activity produces sound with longer wavelengths than
the sound produced by the acoustic sources planned for use here. As
noted above, a determination of appropriate spreading loss is related
to the ratio of wavelength to water depth more than to a strict reading
of water depth. NMFS indeed uses practical spreading in typical coastal
construction applications, but for reasons described here, uses
spherical spreading when evaluating the effects of HRG surveys on the
continental shelf.
In addition, for many of these HRG sources, absorption should also
be accounted for when discussing sound propagation (i.e., great
absorption for higher frequency sources). Thus, this analysis is likely
conservative for other reasons (e.g., the lowest frequency was used for
systems that are operated over a range of frequencies).
NMFS has determined that spherical spreading is the most
appropriate form of propagation loss for these surveys and has relied
on this approach for past IHAs with similar equipment, locations, and
depths. Please refer back to the Garden State HRG IHA (83 FR 14417,
April 4, 2018) and the 2019 Skipjack HRG IHA (84 FR 51118, September
27, 2019) for examples. Prior to the issuance of these IHAs
(approximately 2018 and older), NMFS typically relied upon practical
spreading for these types of survey activities. However, as additional
scientific evidence became available, including numerous sound source
verification reports, NMFS determined that this approach was
inappropriately conservative and since that time, has consistently used
spherical spreading.
Comment: A member of the public expressed concern about the
concurrent use of vessels for surveying increasing the likelihood of
incidental take.
Response: NMFS appreciates the commenter's concern but notes that
no evidence is provided to substantiate this concern. NMFS' believes
that the authorized take numbers adequately account for the potential
take that may result from the proposed survey work, inclusive of the
concurrent use of surveying vessels. As a result of the small estimated
Level B harassment zones (i.e., maximum 141 m), no overlap of the
footprint of potential
[[Page 38832]]
effect would occur due to concurrent vessel use. The use of concurrent
survey vessels over the relatively large survey area is not expected to
increase either the number of takes or the degree of individual take
events that may occur.
Comment: SaveLBI and a member of the public assert that Level A
harassment may occur, and that this was not accounted for in the
proposed notice.
Response: NMFS has previously responded to this comment from
SaveLBI (see 87 FR 24103, April 22, 2022) and our response has neither
changed nor has new information presented itself that would change our
determination. NMFS acknowledges the commenters' concerns regarding the
potential for Level A harassment of marine mammals. However, no Level A
harassment is expected to result, even in the absence of mitigation,
given the characteristics of the sources planned for use. This is
additionally supported by the required mitigation and very small
estimated Level A harassment zones described in Atlantic Shores' 2020
Federal Register notice (85 FR 21198, April 16, 2020), carried through
to the 2021 renewal IHA (86 FR 21289, April 22, 2021), and present in
the 2022 IHA (87 FR 24103, April 22, 2022) which is of a similar scope
of activities presented for the 22023 survey. Furthermore, the
commenters do not provide any support for the apparent contention that
Level A harassment is a potential outcome of these activities. As
discussed in the notice of proposed IHA for the 2023 surveys, NMFS
considers this category of survey operations to be near de minimis,
with the potential for Level A harassment for any species to be
discountable.
Comment: SaveLBI continues to suggest that NMFS utilize a source
level of 211 dB root-mean-square (rms) instead of the 203 dB for the
Dura-Spark 240, as was cited in the proposed Federal Register notice
(e.g., for sparkers, the peak sound pressure level can be approximately
7 dB higher than the rms sound pressure level (rms SPL) typically
associated with NMFS's marine mammal behavioral harassment thresholds
(NMFS, 2020)).
Response: As stated in a previous Federal Register notice (87 FR
24103, April 22, 2022), NMFS disagrees with SaveLBI's recommendation,
and has determined that the 203 dB rms SPL source level is still the
most appropriate for use herein. As discussed in the notice of proposed
IHA, the Applied Acoustics Dura-Spark was included and measured in
Crocker and Fratantonio (2016), but not with an energy setting near 800
J, the energy setting which was determined as the ``worst-case
scenario'' by Atlantic Shores for use in the presence of denser
substrates. The SIG ELC 820 sparker was deemed as a similar alternative
to the Dura-Spark based on information in Table 9 of Crocker and
Fratantonio (2016), and where a higher energy setting of 750 J (at a 5
m depth) had been measured. We also note that using the SIG ELC as a
surrogate system has been previously documented and employed in other
issued IHAs, such as the Mayflower Wind HRG surveys (86 FR 38033, July
19, 2021). NMFS further based this decision on further information on
the SIG acoustic source, Crocker and Fratantonio (2016), and other IHA
applications (see Mayflower Wind's application at <a href="https://media.fisheries.noaa.gov/2021-02/Mayflower-2021HA_Appl_OPR1.pdf?null=">https://media.fisheries.noaa.gov/2021-02/Mayflower-2021HA_Appl_OPR1.pdf?null=</a>).
The frequency ranges provided for the SIG ELC represent a broad range
(0.01--1.9 kHz), which includes the highest bandwidth at the 750 J
reported in Crocker and Fratantonio (2016).
We also note that, based on additional discussion with Atlantic
Shores, a power level of 750 J was likely an overestimate and that 500-
600 J was more likely to be used during the HRG surveys and that 750
was a conservative overestimate. NMFS carries over this information in
the 2023 project from Table 2 found in the 2022 proposed Federal
Register notice (87 FR 4200, January 27, 2022). The use of information
that appropriately addresses the potential for use at the higher power
level means that the analysis herein, including the selection of source
level, is conservative for most typical applications of the acoustic
sources.
Comment: SaveLBI states that it believes NMFS' negligible impact
finding for NARWs to be insufficient given the analysis SaveLBI
included in their letter, which produced higher take numbers for marine
mammals, including NARWs. SaveLBI also states that, based on their
assertion that serious injury and/or mortality is a potential outcome
of the specified activity for NARWs, a rulemaking (Incidental Take
Regulation with subsequent Letters of Authorization) would be necessary
to authorize Atlantic Shores' site characterization surveys due to
SaveLBI's premise that take by serious injury and/or mortality may
occur.
Response: NMFS acknowledges that authorization under section
101(a)(5)(A) of the MMPA would be required were mortality or serious
injury an expected outcome of the action. However, as noted previously,
there is no scientific evidence suggesting that such outcomes are
possible and, therefore, an IHA issued under section 101(a)(5)(D) is
appropriate. Similarly, if SaveLBI's analysis were considered credible,
the results would necessitate a revision to NMFS' negligible impact
determination. However, as detailed in previous comment responses,
SaveLBI's analysis is not based on the best scientific evidence
available, and NMFS does not consider it to be a credible analysis.
Separately, it appears that SaveLBI equates Level A harassment with
serious injury and mortality in suggesting that Incidental Take
Regulations are required. As discussed herein, Level A harassment is
not an expected outcome of the specified activity. However, we clarify
that section 101(a)(5)(D) of the MMPA, which governs the issuance of
IHAs, indicates that the ``the Secretary shall authorize . . . . taking
by harassment [. . . .]'' The definition of ``harassment'' in the MMPA
clearly includes both Level A harassment and Level B harassment.
SaveLBI further suggested that NMFS should promulgate programmatic
Incidental Take Regulations for site characterization activities.
Although NMFS is open to this approach, we have not received a request
for such regulations from the applicant, and NMFS reminds SaveLBI that
the MMPA only allows for the development of Incidental Take Regulations
upon request. SaveLBI states that this would be necessary based on the
potential for serious injury or mortality that was assumed in SaveLBI's
letter. However, as discussed previously, NMFS does not expect any
serious injury or mortality, even absent mitigation efforts, because of
the nature of the activities described in the proposed Federal Register
notice. Furthermore, NMFS included a vessel strike analysis in the
proposed notice (87 FR 4200, January 27, 2022) under the referenced
Potential Effects on Marine Mammals and Their Habitat section. We
identified that at average transit speed for geophysical survey
vessels, the probability of serious injury or mortality resulting from
a strike is low enough to be discountable. However, the likelihood of a
strike actually happening is again low given the smaller size of these
vessels and generally slower speeds during transit. Further, Atlantic
Shores is required to implement monitoring and mitigation measures
during transit, including observing for marine mammals and maintaining
defined separation distances between the vessel and any
[[Page 38833]]
marine mammal (see the Mitigation and Monitoring and Reporting
sections). Finally, despite several years of marine site
characterization surveys occurring off the U.S. east coast, NMFS has no
reports of any vessels supporting offshore wind development having
struck a marine mammal either in transit or during surveying. Because
vessel strikes are not reasonably expected to occur, no such take is
authorized. The mitigation measures in the IHA related to vessel strike
avoidance are not limited to vessels operating within the survey area
or cable corridors and therefore, apply to transiting vessels. Because
of these reasons and the addition of mitigation efforts, including
required vessel separation distances to further reduce any risk, we do
not find that a rulemaking is necessary for Atlantic Shores' HRG
surveys.
Comment: SaveLBI again asserts that NMFS has not been sufficiently
clear with regard to its use of density data, and expresses concern
that the density data used may not be sufficiently conservative.
Response: As discussed in greater detail in the notice of proposed
IHA (87 FR 4200, January 27, 2022) and notice of final IHA (87 FR
24103, April 22, 2022) for the 2022 survey, NMFS relied upon the best
available scientific information in assessing the likelihood of
occurrence for all potentially impacted marine mammal species,
including the NARW. The Duke University Marine Geospatial Ecology
Laboratory (Roberts et al., 2023) habitat-based density models,
recently updated in 2022, represent the best available information
regarding marine mammal densities in the survey area. Density data for
all taxa are available for 5 km x 5 km grid cells over the entire
survey area and for most species (including NARW; version 12), are
available for each of 12 months. For the exposure analysis, these
density data were mapped using a geographic information system (GIS)
for each of the survey areas (i.e., Lease Areas and relevant Export
Cable Routes). Densities of each species were then averaged by season;
thus, a density was calculated for each species for spring, summer,
fall and winter. To be conservative, the greatest seasonal density
calculated for each species was then carried forward in the exposure
analysis. All density information used by NMFS is publicly available
through Duke University's OBIS-SEAMAP website: <a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>.
We note that SaveLBI again does not discuss what it means by
stating that the analysis may not be ``conservative,'' and does not
connect this concern to the relevant requirements of the MMPA. However,
NMFS believes that its approach using the density information, which
was referenced in full based on information from the 2022 notice of
proposed IHA (87 FR 4200, January 27, 2022), addresses any such
concerns.
Comment: SaveLBI again asserts that the potential for Level A
harassment, serious injury and/or death impacts have been
insufficiently addressed in NMFS' analysis. SaveLBI also suggests that
NMFS must perform a ``cumulative permanent threshold shift (PTS)
analysis.'' They further go on to state that ``NMFS' assurance that
Atlantic Shores is required to not approach any right whale within 500
m or operate the sparker unit within 500 m of the whale does not
inspire confidence'' as NMFS only requires visual detection of animals
and not requiring passive acoustic monitoring to supplement human
observation. SaveLBI provided recommendations that NMFS should require
Passive Acoustic Monitoring (PAM) at all times, both day and night, to
maximize the probability of detection for NARWs, as well as other
species and stocks.
Response: As previously stated, the commenter still appears to
mistakenly reference NMFS' historical Level A harassment threshold of
180 dB rms SPL received level in addressing this issue. However, in
2018, NMFS published Technical Guidance for Assessing the Effects of
Anthropogenic Sound on Marine Mammal Hearing, which updated the 180 dB
SPL Level A harassment threshold. Since that time, NMFS has been
applying dual threshold criteria based on both peak pressure and
cumulative sound exposure level thresholds. This dual criteria approach
requires that the more conservative of the two hearing group-specific
threshold criteria be applied in evaluating the potential for Level A
harassment. Therefore, NMFS has considered the potential for Level A
harassment on the basis of cumulative sound exposure level (as well as
peak pressure) in the way suggested by SaveLBI.
As described in the Estimated Take section, NMFS has established a
PTS (Level A harassment) threshold of 183 dB cumulative sound exposure
level (SEL) for low frequency specialists. In support of a previous IHA
request (see the final 2020 notice (85 FR 21198, April 16, 2020), the
2022 renewal notice (86 FR 21289, April 22, 2021), and the 2022 notice
(87 FR 24103, April 22, 2022)), Atlantic Shores provided estimated
Level A harassment zones for similar equipment (i.e., the Applied
Acoustics Dura-Spark 240 sparker). Despite assuming a higher source
level than is used herein, the result of this analysis shows that a
NARW would have to come within 1 m of the sparker to potentially incur
PTS. NMFS has reviewed the analysis found in Atlantic Shores' 2020,
2021, and 2022 HRG IHA applications and confirmed that these are
accurate and similar to this action. These applications can be found on
NMFS' website.
Not only are NARWs migrating through the area, meaning that their
occurrence in the area is expected to be of relatively brief duration
and the likelihood of exposures of longer duration or at closer range
minimized, Atlantic Shores is also required to not approach any NARW
within 500 m or operate the sparker within 500 m of a NARW (88 FR
19075, March 30, 2023). As such, there is essentially no potential for
a NARW to experience PTS (i.e., Level A harassment) from the described
surveys.
Regarding use of PAM, the commenters fail to explain why they
expect that PAM would be effective in detecting vocalizing mysticetes,
and NMFS does not agree that this measure is warranted as it is not
expected to be effective for use in detecting the species of concern.
It is generally accepted that, even in the absence of additional
acoustic sources, using a towed passive acoustic sensor to detect
baleen whales (including NARWs) is not typically effective because the
noise from the vessel, the flow noise, and the cable noise are in the
same frequency band and will mask the vast majority of baleen whale
calls. Vessels produce low-frequency noise, primarily through propeller
cavitation, with main energy in the 5-300 Hertz (Hz) frequency range.
Source levels range from about 140 to 195 decibel (dB) re 1 [mu]Pa
(micropascal) at 1 m (National Research Council (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 workshop (Thode et al., 2017)
emphasized that a PAM operation could easily report no acoustic
encounters, depending on species present, simply because
[[Page 38834]]
background noise levels rendered any acoustic detection impossible. The
same workshop report stated that a typical eight-element array towed
500 m behind a vessel could be expected to detect delphinids, sperm
whales, and beaked whales at the required range but not baleen whales
due to expected background noise levels (including seismic noise,
vessel noise, and flow noise).
There are several additional reasons why we do not agree that use
of PAM is warranted for 24-hour HRG surveys. While NMFS agrees that PAM
can be an important tool for augmenting detection capabilities in
certain circumstances, its utility in further reducing impact during
HRG survey activities is limited. First, for this activity, the area
expected to be ensonified above the Level B harassment threshold is
relatively small (a maximum of 141 m); this reflects the fact that, to
start with, the source level is comparatively low and the intensity of
any resulting impacts would be lower level and, further, it means that
inasmuch as PAM will only detect a portion of any animals exposed
within a zone, the overall probability of PAM detecting an animal in
the harassment zone is low. Together, these factors support the limited
value of PAM for use in reducing take with smaller zones. PAM is only
capable of detecting animals that are actively vocalizing, while many
marine mammal species vocalize infrequently or during certain
activities, which means that only a subset of the animals within the
range of the PAM would be detected (and potentially have reduced
impacts). Additionally, localization and range detection can be
challenging under certain scenarios. For example, odontocetes are fast
moving and often travel in large or dispersed groups which makes
localization difficult.
Given that the effects to marine mammals from the types of surveys
authorized in this IHA are expected to be limited to low level
behavioral harassment even in the absence of mitigation, the limited
additional benefit anticipated by adding this detection method
(especially for NARWs and other low frequency cetaceans species for
which PAM has limited efficacy), and the cost and impracticability of
implementing a full-time PAM program, we have determined the current
requirements for visual monitoring are sufficient to ensure the least
practicable adverse impact on the affected species or stocks and their
habitat. NMFS has previously provided discussions on why PAM is not a
required monitoring measure during HRG survey IHAs in past Federal
Register notices (see 86 FR 21289, April 22, 2021, and 87 FR 13975,
March 11, 2022, for examples).
Regarding monitoring for species that may be present yet go
unobserved, NMFS recognizes that visual detection based mitigation
approaches are not 100 percent effective. Animals are missed because
they are underwater (availability bias) or because they are available
to be seen but are missed by observers (perception and detection
biases) (e.g., Marsh and Sinclair, 1989). However, visual observation
remains one of the best available methods for marine mammal detection.
Although it is likely that some marine mammals may be present yet
unobserved within the harassment zone, all expected take of marine
mammals has been appropriately authorized. For mysticete species in
general, it is unlikely that an individual would occur within the
estimated 141 m harassment zone and remain undetected. For NARW in
particular, the required Exclusion Zone is 500 m, and therefore, it is
even less likely that an individual would approach the harassment zone
undetected.
Comment: SaveLBI asserts that the potential for Level B harassment
and/or masking to lead to serious injury and/or death impacts have been
insufficiently addressed in NMFS' analysis.
Response: The best available science indicates that Level B
harassment (i.e., disruption of behavioral patterns) may occur. No
mortality or serious injury is expected to occur as a result of the
planned surveys, and there is no scientific evidence indicating that
any marine mammal could experience these as a direct result of noise
from geophysical survey activity. Authorization of mortality and
serious injury may not occur via IHAs, only within Incidental Take
Regulations, and such authorization was neither requested nor proposed.
NMFS notes that in its history of authorizing take of marine mammals,
there has never been a report of any serious injuries or fatalities of
a marine mammal related to the site characterization surveys, including
for NARWs. We emphasize that an estimate of take numbers alone is not
sufficient to assess impacts to a marine mammal population. Take
numbers must be viewed contextually with other factors as explained in
the Determinations section of this Federal Register notice.
Furthermore, SaveLBI's comment is founded again on the presumption,
absent evidence, that serious injury or mortality is a reasonably
anticipated outcome of Atlantic Shores' specified activity. NMFS
emphasizes that there is no credible scientific evidence available
suggesting that mortality and/or serious injury is a potential outcome
of the planned survey activity, and SaveLBI provides no information to
the contrary. We also refer SaveLBI to the GARFO 2021 Programmatic
Consultation, which finds that these survey activities are in general
not likely to adversely affect ESA-listed marine mammal species (i.e.,
GARFO's analysis conducted pursuant to the ESA finds that marine
mammals are not likely to be taken at all (as that term is defined
under the ESA), much less be taken by serious injury or mortality).
That document is found here: <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>.
Comment: SaveLBI asserts that reactions to noise exposure that do
not meet the definition of Level B harassment under the MMPA may yet
cause delayed injury or mortality to affected marine mammals and states
that NMFS should assess this possibility. SaveLBI further states that
masking effects may impact migratory activities.
Response: We acknowledge that masking may impact marine mammals,
particularly baleen whales, and particularly when considered in the
context of the full suite of regulated and unregulated anthropogenic
sound contributions overlaying an animal's acoustic habitat. However,
we do not agree that masking effects from the incremental noise
contributions of individual activities or sound sources necessarily or
typically rise to the level of a take. While it is possible that
masking from a particular activity may be so intense as to result in
take by Level B harassment, we have no information suggesting that
masking of such intensity and duration would occur as a result of the
specified activity. Potential effects of a specified activity must be
accounted for in a negligible impact analysis, but not all responses or
effects result in take nor are those that do always readily quantified.
In this case, while masking is considered in the analysis, we do not
believe it will rise to the level of take in the vast majority of
exposures. However, in the unanticipated event that any small number of
masking incidents did rise to the level of a take, we would expect them
to be accounted for in the quantified exposures above 160 dB. Given the
short duration of expected noise exposures, any take by
[[Page 38835]]
masking in the case of these surveys would be most likely to be
incurred by individuals either exposed briefly to notably higher levels
or those that are generally in the wider vicinity of the source for
comparatively longer times. Both of these situations would be captured
in the enumeration of takes by Level B harassment, which is based on
exposure at or above 160 dB, which also means the individual
necessarily spent a comparatively longer time in the adjacent area
ensonified below 160 dB, but in which masking might occur if the
exposure was notably longer. All of these potential outcomes are of
notably lower likelihood in this circumstance, where the estimated
harassment zone is no greater than 141 m. There is no evidence that
these lower-level potential impacts could lead to more severe impacts,
such as mortality or serious injury, and SaveLBI provides no such
evidence.
Similarly, NMFS disagrees with SaveLBI's contention that such
impacts could meaningfully affect whale migratory behavior. Given the
vessel transiting, any whales also transiting (as animals are not
stationary but mobile) may only have a brief moment of masking which
should not be expected to extend for a long period of time. SaveLBI
provides no evidence in support of its speculative suggestions.
Comment: SaveLBI states that to properly make a negligible impact
determination, NMFS should develop/provide criteria to avoid
jeopardizing the existence and survival of the NARW. SaveLBI states
that this would ideally include no instances of fatality or serious
injury from survey noise and meet that strict criterion with high
statistical confidence. SaveLBI notes that they believe the current
proposed notice for Atlantic Shores' surveys does not meet this
criteria.
Response: As we previously stated in a previous Federal Register
notice for Atlantic Shores' 2022 HRG surveys (87 FR 24103, April 22,
2022), SaveLBI's comment is founded on the presumption, absent
evidence, that serious injury or mortality is a reasonably anticipated
outcome of Atlantic Shores' specified activity. As NMFS has emphasized,
there is no credible scientific evidence available suggesting that
mortality and/or serious injury is a potential outcome of the planned
survey activity, and SaveLBI provides no information to the contrary.
We also refer SaveLBI to the GARFO 2021 Programmatic Consultation,
which finds that these survey activities are, in general, not likely to
adversely affect ESA-listed marine mammal species (i.e., GARFO's
analysis conducted pursuant to the ESA finds that marine mammals are
not likely to be taken at all, as that term is defined under the ESA,
much less be taken by serious injury or mortality). That document is
found here: <a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>.
Comment: SaveLBI states that use of the 120-dB harassment criterion
is more appropriate for use in evaluating potential effects of non-
impulsive, intermittent sources than is the 160-dB criterion.
Response: First, we clarify that the primary source to which take
is attributed here (the sparker) is in fact an impulsive source, and
therefore, the 160-dB harassment criterion is appropriate. However, we
further address the commenter's suggestion that the 120-dB continuous
noise criterion should be used for evaluation of non-impulsive,
intermittent sources.
First, we provide some necessary background on implementation of
acoustic thresholds. NMFS has historically used generalized acoustic
thresholds based on received levels to predict the occurrence of
behavioral harassment, given the practical need to use a relatively
simple threshold based on information that is available for most
activities. Thresholds were selected in consideration largely of
measured avoidance responses of mysticete whales to airgun signals and
to industrial noise sources, such as drilling. The selected thresholds
of 160 dB rms SPL and 120 dB rms SPL, respectively, have been extended
for use since then for estimation of behavioral harassment associated
with noise exposure from sources associated with other common
activities as well.
Sound sources can be divided into broad categories based on various
criteria or for various purposes. As discussed by Richardson et al.
(1995), source characteristics include strength of signal amplitude,
distribution of sound frequency and, importantly in context of these
thresholds, variability over time. With regard to temporal properties,
sounds are generally considered to be either continuous or transient
(i.e., intermittent). Continuous sounds, which are produced by the
industrial noise sources for which the 120-dB behavioral harassment
threshold was selected, are simply those whose sound pressure level
remains above ambient sound during the observation period (American
National Standards Institute (ANSI), 2005). Intermittent sounds are
defined as sounds with interrupted levels of low or no sound (National
Institute for Occupational Safety and Health (NIOSH), 1998). Simply
put, a continuous noise source produces a signal that continues over
time while an intermittent source produces signals of relatively short
duration having an obvious start and end with predictable patterns of
bursts of sound and silent periods (i.e., duty cycle) (Richardson and
Malme, 1993). It is this fundamental temporal distinction that is most
important for categorizing sound types in terms of their potential to
cause a behavioral response. For example, Gomez et al. (2016) found a
significant relationship between source type and marine mammal
behavioral response when sources were split into continuous (e.g.,
shipping, icebreaking, drilling) versus intermittent (e.g., sonar,
seismic, explosives) types. In addition, there have been various
studies noting differences in responses to intermittent and continuous
sound sources for other species (e.g., Neo et al., 2014; Radford et
al., 2016; Nichols et al., 2015).
Sound sources may also be categorized based on their potential to
cause physical damage to auditory structures and/or result in threshold
shifts. In contrast to the temporal distinction discussed above, the
most important factor for understanding the differing potential for
these outcomes across source types is simply whether the sound is
impulsive or not. Impulsive sounds, such as those produced by airguns,
are defined as sounds which are typically transient, brief (<1 sec),
broadband, and consist of a high peak pressure with rapid rise time and
rapid decay (ANSI, 1986; NIOSH, 1998). These sounds are generally
considered to have greater potential to cause auditory injury and/or
result in threshold shifts. Non-impulsive sounds can be broadband,
narrowband or tonal, brief or prolonged, continuous or intermittent,
and typically do not have the high peak pressure with rapid rise/decay
time that impulsive sounds do (ANSI, 1995; NIOSH, 1998). Because the
selection of the 160-dB behavioral threshold was focused largely on
airgun signals, it has historically been commonly referred to as the
``impulse noise'' threshold (including by NMFS). However, this
longstanding confusion in terminology--i.e., the erroneous impulsive/
continuous dichotomy--presents a narrow view of the sound sources to
which the thresholds apply and inappropriately implies a limitation in
scope of applicability for the 160-dB behavioral threshold in
particular.
An impulsive sound is by definition intermittent; however, not all
[[Page 38836]]
intermittent sounds are impulsive. Many sound sources for which it is
generally appropriate to consider the authorization of incidental take
are in fact either impulsive (and intermittent) (e.g., impact pile
driving) or continuous (and non-impulsive) (e.g., vibratory pile
driving). However, non-impulsive, intermittent acoustic sources present
a less common case where the sound produced is considered intermittent
but non-impulsive. The simple argument presented by commenters
regarding non-impulsive, intermittent sources has been that, because
such sources are not impulsive sound sources, they must be assessed
using the 120-dB behavioral threshold appropriate for continuous noise
sources. However, given the existing paradigm--dichotomous thresholds
appropriate for generic use in evaluating the potential for behavioral
harassment resulting from exposure to continuous or intermittent sound
sources--the comments do not adequately explain why potential
harassment from an intermittent sound source should be evaluated using
a threshold developed for use with continuous sound sources.
Consideration of the preceding factors leads to a conclusion that the
160-dB threshold is more appropriate for use than is the 120-dB
threshold in evaluation of potential effects due to use of non-
impulsive, intermittent sound sources.
Comment: SaveLBI suggests that NMFS should use more conservative
information related to the acoustic output of the sources planned for
use (i.e., a higher source level and a lower transmission loss
coefficient) and perform its own analysis of these alternative
scenarios. SaveLBI notes that these changes would increase the size of
the estimated Level B harassment zone and as a result, increase the
expected take numbers. Based on their reanalysis, SaveLBI asserts that
NMFS' negligible impact and small numbers determinations are not
accurate.
Response: As previously stated in the 2022 Federal Register notice
(87 FR 24103, April 22, 2022), NMFS continues to disagree with
SaveLBI's suggested changes and does not believe they are appropriate.
We have addressed use of the alternate source level and the
recommendation of lower assumed propagation loss in previous responses
to comments herein. While NMFS acknowledges that if one assumes the
most conservative values at every opportunity, the analysis will
produce higher estimates of harassment zone size and of incidental
take. However, SaveLBI's assumptions are not realistic, and SaveLBI
does not adequately justify the assumptions made in its overly
conservative analysis. As such, NMFS finds its analysis, findings, and
determinations to be accurate and based on the best available
scientific information.
Comment: SaveLBI recommended increasing the Exclusion Zone to 2,500
m, respectively, for NARWs, based on their reanalysis.
Response: NMFS notes that the 500 m Exclusion Zone for NARWs
exceeds the modeled distance to the largest 160 dB Level B harassment
isopleth distance (141 m during sparker use) by a substantial margin.
The commenter does not provide a compelling rationale for why the
Exclusion Zone should be even larger beyond their described reanalysis,
which NMFS has already stated it considers flawed and not realistic.
Given that these surveys are relatively low impact and that,
regardless, NMFS has prescribed a NARW Exclusion Zone that is
significantly larger (500 m) than the conservatively estimated largest
harassment zone (141 m), NMFS has determined that the Exclusion Zone is
appropriate. Further, no Level A harassment is expected to result even
in the absence of mitigation, given the characteristics of the sources
planned for use. As described in the Mitigation section, NMFS has
determined that the prescribed mitigation requirements are sufficient
to effect the least practicable adverse impact on all affected species
or stocks. As such, we are not adopting SaveLBI's recommendation.
Comment: SaveLBI suggests Atlantic Shores' survey activities should
be prohibited from January through April as well as in November.
Furthermore, SaveLBI suggests that an annual Seasonal Management Area
(SMA) be established in and adjacent to the survey area to mitigate
against any vessel strike.
Response: NMFS assumes this is regarding the NARW and shares
concern with SaveLBI regarding the status of the NARW, given that a UME
has been in effect for this species since June 2017 and that there have
been 6 counts of NARW UME mortality, serious injury, and morbidity
cases in 2023. Five of these cases have been from entanglement and
vessel strike, and one case was perinatal. NMFS appreciates the value
of seasonal restrictions under some circumstances. However, in this
case, we have determined seasonal restrictions are not warranted, and
reiterate that only Level B harassment has been authorized in this
case. NARW occurrence in this area is generally low most of the year.
Furthermore, NMFS has already stated that this area consists only of
migratory habitat for the NARW, consisting of no primary foraging
habitat (which is found much further north off the New England region),
which further reduces the risks of exposure and impacts. Further, NMFS
is requiring Atlantic Shores to comply with restrictions associated
with identified SMAs, and they must comply with DMAs if any DMAs are
established near the survey area. Finally, significantly shortening
Atlantic Shores work season is impracticable given the number of survey
days planned for the specified activity for this IHA.
NMFS wishes to clarify that existing and permanent SMAs have been
previously established under a different rulemaking (73 FR 60173) and
can also be found on NMFS' website at <a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales#speedlimit">https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales#speedlimit</a>).
Comment: SaveLBI asserts that the notice of proposed IHA does not
address compliance with the ESA and goes on to provide a number of
concerns regarding NMFS GARFO's 2021 programmatic consultation
regarding geophysical surveys along the U.S. Atlantic coast in the
three Atlantic Renewable Energy Regions.
Response: NMFS refers the commenter to page 19088 of the notice of
proposed IHA (88 FR 19075), in which NMFS' compliance with the ESA is
discussed. NMFS determined that this activity falls within the scope of
activities analyzed in the 2021 GARFO programmatic consultation and
therefore, this action is compliant with the ESA.
Comment: SaveLBI states that the proposed survey may not be
consistent with the New Jersey Coastal Zone Management (CZM) rules,
specifically NJAC 7:E-3.38, the provision that protects against adverse
impacts occurring to New Jersey coastal resources, including endangered
wildlife habitats. They state that NMFS should have sought a CZM
consistency determination from New Jersey.
Response: SaveLBI's contention that the proposed survey may not be
consistent with the New Jersey Coastal Zone Management is rejected
because, as explained herein, Atlantic Shores' IHA was and is not
subject to Federal consistency review. NMFS was not required to submit
a Federal consistency determination to the State of New Jersey because
this is not a ``Federal Agency activity'' proposed by NMFS, as that
term is defined in 15 CFR 930.31. Therefore, section 307(c)(1)(A) of
the Coastal Zone Management Act (CZMA), 16 U.S.C. 1456(c)(1)(A), and
the implementing regulations codified at
[[Page 38837]]
15 CFR part 930, subpart C, are not applicable.
NMFS was an agency reviewing an application for an IHA relevant to
Atlantic Shores' survey activities. As such, whether Federal
consistency review is required is determined by section 307(c)(3)(A) of
the CZMA, 16 U.S.C. 1456 (c)(3)(A) and the implementing regulations at
15 CFR part 930, subpart D, which authorizes states with federally
approved coastal management programs to review applications for Federal
licenses or permits to conduct activities in, or outside of, the
coastal zone that has reasonably foreseeable effects on coastal use
(land or water) or natural resources within the coastal zone to ensure
the activity is fully consistent with the enforceable policies of the
state's approved management program. In this instance, Atlantic Shores
was not required to submit a CZMA Federal consistency certification to
the State of New Jersey under 15 CFR part 930, subpart D, of the
implementing regulations, because the NMFS MMPA IHA is not, pursuant to
15 CFR 930.53, listed in the State's federally-approved coastal
management program, the State of New Jersey has not described a
geographic location in Federal waters where Federal effects from the
NMFS MMPA IHA are reasonably foreseeable, and the State of New Jersey
has not submitted and the Director of NOAA's Office of Coastal
Management has not approved an unlisted activity review request.
Under the regulations governing the CZMA Federal consistency review
of unlisted activities, an unlisted activity (such as the one described
herein) is only subject to Federal consistency review if the state
timely requests review within thirty days after publication of the
notice of proposed IHA in the Federal Register and the Director of
NOAA's Office for Coastal Management approves such request (15 CFR
930.54). Here, NMFS published the Federal Register notice for Atlantic
Shores' MMPA IHA application on March 30, 2023 (88 FR 19075). The State
of New Jersey then had 30 days from the date of that publication to
notify Atlantic Shores, NMFS and the Director of NOAA's Office for
Coastal Management that the State was seeking approval to review the
activity as an unlisted activity. The State of New Jersey did not make
such a request, the 30-day period ended on April 29, 2023, and the time
period to make an unlisted activity review request has expired.
Accordingly, Atlantic Shores' IHA application is not subject to Federal
consistency review under the CZMA.
Description of Marine Mammals in the Areas of Specified Activities
A description of the marine mammals in the area of the activities
can be found in the previous documents and notices for the 2022 IHA (87
FR 4200, January 27, 2022; 87 FR 24103, April 22, 2022), which remains
applicable to this IHA. NMFS reviewed the most recent draft Stock
Assessment Reports (SARs, found on NMFS' website 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>), up-to-date information on relevant UMEs (<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-unusual-mortality-events</a>), and recent scientific literature and
determined that no new information affects our original analysis of
impacts under the 2022 IHA. 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>).
NMFS notes that, since issuance of the 2022 IHA, a new SAR was made
available with new information presented for the NARW (see <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessment-reports</a>). We note that the estimated abundance for the
species declined from 368 to 338. However, this change does not affect
our analysis of impacts, as described under the 2022 IHA.
Additionally, on August 1, 2022, NMFS announced proposed changes to
the existing NARW vessel speed regulations to further reduce the
likelihood of mortalities and serious injuries to endangered NARWs from
vessel collisions, which are a leading cause of the species' decline
and a primary factor in an ongoing Unusual Mortality Event (87 FR
46921). Should a final vessel speed rule be issued and become effective
during the effective period of this IHA (or any other MMPA incidental
take authorization), the authorization holder would be required to
comply with any and all applicable requirements contained within the
final rule. Specifically, where measures in any final vessel speed rule
are more protective or restrictive than those in this or any other MMPA
authorization, authorization holders would be required to comply with
the requirements of the rule. Alternatively, where measures in this or
any other MMPA authorization are more restrictive or protective than
those in any final vessel speed rule, the measures in the MMPA
authorization would remain in place. The responsibility to comply with
the applicable requirements of any vessel speed rule would become
effective immediately upon the effective date of any final vessel speed
rule and, when notice is published of the effective date, NMFS would
also notify Atlantic Shores if the measures in the speed rule were to
supersede any of the measures in the MMPA authorization such that they
were no longer applicable.
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 2.
[[Page 38838]]
Table 2--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).
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.
Fifteen marine mammal species (comprising 16 total stocks; 13
cetacean (14 stocks) and 2 pinniped (both phocid) species) have the
reasonable potential to co-occur with the survey activities. Of the
cetacean species that may be present, five are classified as low-
frequency cetaceans (i.e., all mysticete species), seven are classified
as mid-frequency cetaceans (i.e., all delphinid species and the sperm
whale), and one is classified as a high-frequency cetacean (i.e.,
harbor porpoise).
Potential Effects on Marine Mammals and Their Habitat
A description of the potential effects of the specified activities
on marine mammals and their habitat may be found in the documents
supporting the 2022 IHA (87 FR 4200, January 27, 2022; 87 FR 24103,
April 22, 2022). At present, there is no new information on potential
effects that would impact our analysis.
Estimated Take
A detailed description of the methods used to estimate take
anticipated to occur incidental to the project is found in the previous
Federal Register notices (87 FR 4200, January 27, 2022; 87 FR 24103,
April 22, 2022). The methods of estimating take are identical to those
used in the 2022 IHA. We updated the marine mammal densities based on
new information (Roberts et al., 2016; Roberts et al., 2023), available
online at: <a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>. We refer the
reader to Table 4 in the ITA Request from Atlantic Shores for specific
density values used in the analysis. The ITA request is available
online at: <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
The take that NMFS has authorized can be found in Table 3 below.
Table 3 presents the results of Atlantic Shores' density-based
calculations for the combined Lease Area (0499 and 0549) and the two
ECRs (North and South). For comparative purposes, we have provided the
2022 IHA authorized take (87 FR 24103, April 22, 2022; 87 FR 26726, May
5, 2022). 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. Mortality or serious injury
is neither anticipated to occur nor authorized.
Table 3--Total Estimated Take, By Level B Harassment Only, Relative to Population Size for the 2023 HRG Surveys
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Location-specific Authorized 2023 IHA
calculated take Take -------------------------
---------------------- Total AMAPPS authorized Percentage
Marine mammal species Scientific name Stock Estimated calculated group size under of
population Lease ECR ECR take adjustments previous Authorized population
area north south 2022 IHA take authorized
to be taken
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Mysticetes
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale............. Eubalaena glacialis....... Western North Atlantic.... 338 1.1 1.3 0.7 3.1 2 17 3 0.89
Humpback whale......................... Megaptera novaeangliae.... Gulf of Maine............. 1,396 1.8 2.8 0.8 5.4 2 8 5 0.36
Fin whale.............................. Balaenoptera physalus..... Western North Atlantic.... 6,802 2.8 2.5 0.7 6 1 5 6 0.09
Sei whale.............................. Balaenoptera borealis..... Nova Scotia............... 6,292 0.9 0.8 0.2 1.9 1 2 2 0.03
Minke whale............................ Balaenoptera acutorostrata Canadian East Coast....... 21,968 10.4 11.5 2.0 23.9 1 2 24 0.11
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Odontocetes
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale............................ Physeter macrocephalus.... North Atlantic............ 4,349 0.1 0.1 0.0 \a\ 0.2 2 1 2 0.05
Long-finned pilot whale \b\............ Globicephala melas........ Western North Atlantic.... 39,215 0.3 0.1 0.0 0.4 \f\ 8 20 20 0.05
Bottlenose dolphin \c\................. Tursiops truncatus........ Western North Atlantic, 6,639 154.2 359.5 714.2 1,227.9 10 385 1,228 18.5
Northern Migratory
Coastal.
[[Page 38839]]
Western North Atlantic, 62,851 15.2 359.5 714.2 1,088.9 1,175 1,089 1.73
Offshore.
Common dolphin......................... Delphinus delphis......... Western North Atlantic.... 172,974 48.1 46.4 5.2 99.7 30 560 100 0.06
Atlantic white-sided dolphin........... Lagenorhynchus acutus..... Western North Atlantic.... 93,233 9.0 6.8 0.8 16.6 12 17 17 0.02
Atlantic spotted dolphin............... Stenella frontalis........ Western North Atlantic.... 39,921 1.0 1.0 0.2 2.2 24 100 50 0.06
Risso's dolphin........................ Grampus griseus........... Western North Atlantic.... 35,215 0.6 0.4 0.0 1.0 7 30 30 0.09
Harbor porpoise........................ Phocoena phocoena......... Gulf of Maine/Bay of Fundy 95,543 67.3 61.2 13.7 142.2 3 282 142 0.15
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Phocid pinniped
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Gray seal.............................. Halichoerus grypus........ Western North Atlantic.... \e\ 27,300 277.2 333.9 124.7 735.8 \d\ n/a 426 736 0.16
Harbor seal............................ Phoca vitulina............ Western North Atlantic.... 61,336 277.2 333.9 124.7 735.8 \d\ n/a 426 736 1.2
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Although the calculated take rounds to zero, to be conservative in the event a lone sperm whale is observed in the area, NMFS has authorized take assuming a group size of 2 animals.
\b\ All pilot whales that may be encountered are assumed to be long finned. Roberts et al. (2023) density information does not distinguish between species. However, pilot whales encountered
off of New Jersey and points north are likely to be long finned, as the species has a more northerly distribution.
\c\ Takes of bottlenose dolphins were attributed to stock based on the 20-m isobath. All animals shoreward of the 20-m isobath were assumed to belong to the coastal stock and all bottlenose
dolphins seaward of the 20-m isobath were assumed to be from the offshore stock.
\d\ No AMAPPS data was available for seals.
\e\ 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 proposed project.
\f\ A group size adjustments for long-finned pilot whales (n=20) used sighting data collected by Atlantic Shores during past surveys (Atlantic Shores Offshore Wind, 2021). This value was used
instead of the AMAPPS data.
Mitigation
The required mitigation measures are identical to those included in
the Federal Register notice announcing the final 2022 IHA (87 FR 24103,
April 22, 2022; 87 FR 26726, May 5, 2022) and the discussion of the
least practicable adverse impact included in that document remains
accurate. The measures are found below.
Atlantic Shores must also abide by all the marine mammal relevant
conditions in the GARFO programmatic consultation (specifically Project
Design Criteria (PDC) 4, 5, and 7) regarding geophysical surveys along
the U.S. Atlantic coast in the three Atlantic Renewable Energy Regions
(NOAA GARFO, 2021; <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>), pursuant to Section 7 of the
Endangered Species Act.
Marine Mammal Exclusion Zones and Level B Harassment Zones
Marine mammal Exclusion Zones will be established around the HRG
survey equipment and monitored by PSOs. These PSOs will be NMFS-
approved visual PSOs. Based upon the acoustic source in use (impulsive:
sparkers; non-impulsive: non-parametric sub-bottom profilers), a
minimum of one PSO must be on duty, per source vessel, during daylight
hours and two PSOs must be on duty, per source vessel, during nighttime
hours. These PSO will monitor Exclusion Zones based upon the radial
distance from the acoustic source rather than being based around the
vessel itself. The Exclusion Zone distances are as follows:
<bullet> A 500 m Exclusion Zone for NARWs during use of specified
acoustic sources (impulsive: sparkers; non-impulsive: non-parametric
sub-bottom profilers).
<bullet> A 100 m Exclusion Zone for all other marine mammals
(excluding NARWs) during use of specified acoustic sources (except as
specified below).
All visual monitoring must begin no less than 30 minutes prior to
the initiation of the specified acoustic source and must continue until
30 minutes after use of specified acoustic sources ceases.
If a marine mammal were detected approaching or entering the
Exclusion Zones during the HRG survey, the vessel operator will adhere
to the shutdown procedures described below to minimize noise impacts on
the animals. These stated requirements will be included in the site-
specific training to be provided to the survey team.
Ramp-Up of Survey Equipment and Pre-Clearance of the Exclusion Zones
When technically feasible, a ramp-up procedure will be used for HRG
survey equipment capable of adjusting energy levels at the start or
restart of survey activities. A ramp-up of sources will begin with the
powering up of the smallest acoustic HRG equipment at half power for 5
minutes and then proceed to full power. The ramp-up procedure will be
used in order to provide additional protection to marine mammals near
the survey area by allowing them to vacate the area prior to the
commencement of survey equipment operation at full power. When
technically feasible, the power will then be gradually turned up and
other acoustic sources would be added. All ramp-ups shall be scheduled
so as to minimize the time spent with the source being activated.
Ramp-up activities will be delayed if a marine mammal(s) enters its
respective Exclusion Zone. Ramp-up will continue if the animal has been
observed exiting its respective Exclusion Zone or until an additional
[[Page 38840]]
time period has elapsed with no further sighting (i.e., 15 minutes for
small odontocetes and seals; 30 minutes for all other species).
Atlantic Shores will implement a 30 minute pre-clearance period of
the Exclusion Zones prior to the initiation of ramp-up of HRG
equipment. The operator must notify a designated PSO of the planned
start of ramp-up where the notification time should not be less than 60
minutes prior to the planned ramp-up. This will allow the PSOs to
monitor the Exclusion Zones for 30 minutes prior to the initiation of
ramp-up. Prior to ramp-up beginning, Atlantic Shores must receive
confirmation from the PSO that the Exclusion Zone is clear prior to
proceeding. During this 30 minute pre-start clearance period, the
entire applicable Exclusion Zones must be visible. The exception to
this would be in situations where ramp-up may occur during periods of
poor visibility (inclusive of nighttime) as long as appropriate visual
monitoring has occurred with no detections of marine mammals in 30
minutes prior to the beginning of ramp-up. Acoustic source activation
may only occur at night where operational planning cannot reasonably
avoid such circumstances.
During this period, the Exclusion Zone will be monitored by the
PSOs, using the appropriate visual technology. Ramp-up may not be
initiated if any marine mammal(s) is within its respective Exclusion
Zone. If a marine mammal is observed within an Exclusion Zone during
the pre-clearance period, ramp-up may not begin until the animal(s) has
been observed exiting its respective Exclusion Zone or until an
additional time period has elapsed with no further sighting (i.e., 15
minutes for small odontocetes and pinnipeds; 30 minutes for all other
species). If a marine mammal enters the Exclusion Zone during ramp-up,
ramp-up activities must cease and the source must be shut down. Any PSO
on duty has the authority to delay the start of survey operations if a
marine mammal is detected within the applicable pre-start clearance
zones.
The pre-clearance zones will be:
<bullet> 500 m for all ESA-listed species (North Atlantic right,
sei, fin, sperm whales); and
<bullet> 100 m for all other marine mammals.
If any marine mammal species that are listed under the ESA are
observed within the clearance zones, the 30 minute clock must be
paused. If the PSO confirms the animal has exited the zone and headed
away from the survey vessel, the 30 minute clock that was paused may
resume. The pre-clearance clock will reset to 30 minutes if the animal
dives or visual contact is otherwise lost.
If the acoustic source is shut down for brief periods (i.e., less
than 30 minutes) for reasons other than implementation of prescribed
mitigation (e.g., mechanical difficulty), it may be activated again
without ramp-up if PSOs have maintained constant visual observation and
no detections of marine mammals have occurred within the applicable
Exclusion Zone. For any longer shutdown, pre-start clearance
observation and ramp-up are required.
Activation of survey equipment through ramp-up procedures may not
occur when visual detection of marine mammals within the pre-clearance
zone is not expected to be effective (e.g., during inclement conditions
such as heavy rain or fog).
The acoustic source(s) must be deactivated when not acquiring data
or preparing to acquire data, except as necessary for testing.
Unnecessary use of the acoustic source shall be avoided.
Shutdown Procedures
An immediate shutdown of the impulsive HRG survey equipment will be
required if a marine mammal is sighted entering or within its
respective Exclusion Zone(s). Any PSO on duty has the authority to call
for a shutdown of the acoustic source if a marine mammal is detected
within the applicable Exclusion Zones. Any disagreement between the PSO
and vessel operator should be discussed only after shutdown has
occurred. The vessel operator would establish and maintain clear lines
of communication directly between PSOs on duty and crew controlling the
HRG source(s) to ensure that shutdown commands are conveyed swiftly
while allowing PSOs to maintain watch.
The shutdown requirement is waived for small delphinids (belonging
to the genera of the Family Delpinidae: Delphinus, Lagenorhynchus,
Stenella, or Tursiops) and pinnipeds if they are visually detected
within the applicable Exclusion Zones. If a species for which
authorization has not been granted, or, a species for which
authorization has been granted but the authorized number of takes have
been met, approaches or is observed within the applicable Level B
harassment zone, shutdown will occur. In the event of uncertainty
regarding the identification of a marine mammal species (i.e., such as
whether the observed marine mammal belongs to Delphinus,
Lagenorhynchus, Stenella, or Tursiops for which shutdown is waived,
PSOs must use their best professional judgment in making the decision
to call for a shutdown.
Specifically, if a delphinid from the specified genera or a
pinniped is visually detected approaching the vessel (i.e., to bow
ride) or towed equipment, shutdown is not required.
Upon implementation of a shutdown, the source may be reactivated
after the marine mammal has been observed exiting the applicable
Exclusion Zone or following a clearance period of 15 minutes for harbor
porpoises and 30 minutes for all other species where there are no
further detections of the marine mammal.
Shutdown, pre-start clearance, and ramp-up procedures are not
required during HRG survey operations using only non-impulsive sources
(e.g., parametric sub-bottom profilers) other than non-parametric sub-
bottom profilers (e.g., compressed high-intensity radiated pulses
(CHIRPs)). Pre-clearance and ramp-up, but not shutdown, are required
when using non-impulsive, non-parametric sub-bottom profilers.
Seasonal Operating Requirements
As described in the Federal Register notice announcing the final
2022 IHA (87 FR 24103, April 22, 2022; 87 FR 26726, May 5, 2022), a
section of the survey area partially overlaps with a portion of a NARW
seasonal management area (SMA) off the port of New York/New Jersey.
This SMA is active from November 1 through April 30 of each year. All
survey vessels, regardless of length, would be required to adhere to
vessel speed restrictions (<10 knots) when operating within the SMA
during times when the SMA is active. In addition, between watch shifts,
members of the monitoring team would consult NMFS' NARW reporting
systems for the presence of NARWs throughout survey operations. Members
of the monitoring team would also monitor the NMFS NARW reporting
systems for the establishment of Dynamic Management Areas (DMA). NMFS
may also establish voluntary right whale Slow Zones any time a right
whale (or whales) is acoustically detected. Atlantic Shores should be
aware of this possibility and remain attentive in the event a Slow Zone
is established nearby or overlapping the survey area (Table 4).
[[Page 38841]]
Table 4--North Atlantic Right Whale Dynamic Management Area (DMA) and Seasonal Management Area (SMA)
Restrictions Within The Survey Areas
----------------------------------------------------------------------------------------------------------------
Survey area Species DMA restrictions Slow zones SMA restrictions
----------------------------------------------------------------------------------------------------------------
Lease Area...................... North Atlantic If established by NMFS, all of N/A.
right whale Atlantic Shores' vessels will abide
(Eubalaena by the described restrictions.
glacialis).
ECR North. November 1 through
July 31 (Raritan
Bay).
ECR South. N/A.
----------------------------------------------------------------------------------------------------------------
Note: More information on Ship Strike Reduction for the North Atlantic right whale can be found at NMFS'
website: <a href="https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales">https://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-vessel-strikes-north-atlantic-right-whales</a>.
There are no known marine mammal rookeries or mating or calving
grounds in the survey area that would otherwise potentially warrant
increased mitigation measures for marine mammals or their habitat (or
both). The survey activities would occur in an area that has been
identified as a biologically important area (BIAs) for migration for
NARWs. However, given the small spatial extent of the survey area
relative to the substantially larger spatial extent of the right whale
migratory area and the relatively low amount of noise generated by the
survey, the survey is not expected to appreciably reduce the quality of
migratory habitat nor to negatively impact the migration of NARWs, thus
mitigation to address the survey's occurrence in NARW migratory habitat
is not warranted.
Vessel Strike Avoidance
Vessel operators must comply with the below measures except under
extraordinary circumstances when the safety of the vessel or crew is in
doubt or the safety of life at sea is in question. These requirements
do not apply in any case where compliance would create an imminent and
serious threat to a person or vessel or to the extent that a vessel is
restricted in its ability to maneuver and, because of the restriction,
cannot comply.
Survey vessel crewmembers responsible for navigation duties will
receive site-specific training on marine mammals sighting/reporting and
vessel strike avoidance measures. Vessel strike avoidance measures
would include the following, except under circumstances when complying
with these requirements would put the safety of the vessel or crew at
risk:
<bullet> Atlantic Shores will ensure that vessel operators and crew
maintain a vigilant watch for cetaceans and pinnipeds and slow down,
stop their vessels, 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 additional 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 may be third-party
observers (i.e., PSOs) or crew members, but crew members responsible
for these duties must be provided sufficient training to (1)
distinguish marine mammal from other phenomena, and (2) broadly to
identify a marine mammal as a right whale, other whale (defined in this
context as sperm whales or baleen whales other than right whales), or
other marine mammals. All vessels, regardless of size, must observe a
10-knot speed restriction in specific areas designated by NMFS for the
protection of NARWs from vessel strikes, including seasonal management
areas (SMAs) and dynamic management areas (DMAs) when in effect. See
<a href="http://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales">www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales</a> for specific detail
regarding these areas.
<bullet> All vessels must reduce their speed to 10-knots or less
when mother/calf pairs, pods, or large assemblages of cetaceans are
observed near a vessel.
<bullet> All vessels must maintain a minimum separation distance of
500 m (1,640 ft) from right whales and other ESA-listed species. If an
ESA-listed species is sighted within the relevant separation distance,
the vessel must steer a course away at 10-knots or less until the 500 m
separation distance has been established. If a whale is observed but
cannot be confirmed as a species that is not ESA-listed, the vessel
operator must assume that it is an ESA-listed species and take
appropriate action.
<bullet> All vessels must maintain a minimum separation distance of
100 m (328 ft) from non-ESA-listed baleen whales.
<bullet> All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50 m (164 ft) from
all other marine mammals, with an understanding that, at times, this
may not be possible (e.g., for animals that approach the vessel, bow-
riding species).
<bullet> When marine mammals are sighted while a vessel is
underway, the vessel shall 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 monitoring team will consult NMFS NARW reporting
system and WhaleAlert, daily and as able, for the presence of NARWs
throughout survey operations, and for the establishment of a DMA. If
NMFS should establish a DMA in the survey area during the survey, the
vessels will abide by speed restrictions in the DMA.
Training
All PSOs must have completed a PSO training program and received
NMFS approval to act as a PSO for geophysical surveys. Documentation of
NMFS approval and most recent training certificates of individual PSOs'
successful completion of a commercial PSO training course must be
provided upon request. Further information can be found at
<a href="http://www.fisheries.noaa.gov/national/endangered-species-conservation/protected-species-observers">www.fisheries.noaa.gov/national/endangered-species-conservation/protected-species-observers</a>.
Atlantic Shores shall instruct relevant vessel personnel with
regard to the authority of the marine mammal monitoring team, and shall
ensure that relevant vessel personnel and the marine mammal monitoring
team participate in a joint onboard briefing (hereafter PSO briefing),
led by the vessel operator and lead PSO, prior to beginning survey
activities to ensure that responsibilities, communication procedures,
marine mammal monitoring protocols, safety and operational procedures,
and IHA requirements are clearly understood. This PSO briefing
[[Page 38842]]
must be repeated when relevant new personnel (e.g., PSOs, acoustic
source operator) join the survey operations before their
responsibilities and work commences.
Survey-specific training will be conducted for all vessel crew
prior to the start of a survey and during any changes in crew such that
all survey personnel are fully aware and understand the mitigation,
monitoring, and reporting requirements. All vessel crew members must be
briefed in the identification of protected species that may occur in
the survey area and in regulations and best practices for avoiding
vessel collisions. Reference materials must be available aboard all
survey vessels for identification of listed species. The expectation
and process for reporting of protected species sighted during surveys
must be clearly communicated and posted in highly visible locations
aboard all survey vessels, so that there is an expectation for
reporting to the designated vessel contact (such as the lookout or the
vessel captain), as well as a communication channel and process for
crew members to do so. Prior to implementation with vessel crews, the
training program will be provided to NMFS for review and approval.
Confirmation of the training and understanding of the requirements will
be documented on a training course log sheet. Signing the log sheet
will certify that the crew member understands and will comply with the
necessary requirements throughout the survey activities.
Monitoring and Reporting
The monitoring and reporting requirements are identical to those
included in the Federal Register notice announcing the final 2022 IHA
(87 FR 24103, April 22, 2022; 87 FR 26726, May 5, 2022). The measures
are described below.
Monitoring Measures
Atlantic Shores must use independent, dedicated, trained PSOs,
meaning that the PSOs must be employed by a third-party observer
provider, must have no tasks other than to conduct observational
effort, collect data, and communicate with and instruct relevant vessel
crew with regard to the presence of marine mammal and mitigation
requirements (including brief alerts regarding maritime hazards), and
must have successfully completed an approved PSO training course for
geophysical surveys. Visual monitoring must be performed by qualified,
NMFS-approved PSOs. PSO resumes must be provided to NMFS for review and
approval prior to the start of survey activities.
PSO names must be provided to NMFS by the operator for review and
confirmation of their approval for specific roles prior to commencement
of the survey. For prospective PSOs not previously approved, or for
PSOs whose approval is not current, NMFS must review and approve PSO
qualifications. Resumes should include information related to relevant
education, experience, and training, including dates, duration,
location, and description of prior PSO experience. Resumes must be
accompanied by relevant documentation of successful completion of
necessary training.
NMFS may approve PSOs as conditional or unconditional. A
conditionally-approved PSO may be one who is trained but has not yet
attained the requisite experience. An unconditionally-approved PSO is
one who has attained the necessary experience. For unconditional
approval, the PSO must have a minimum of 90 days at sea performing the
role during a geophysical survey, with the conclusion of the most
recent relevant experience not more than 18 months previous.
At least one of the visual PSOs aboard the vessel must be
unconditionally-approved. One unconditionally-approved visual PSO shall
be designated as the lead for the entire PSO team. This lead should
typically be the PSO with the most experience, would coordinate duty
schedules and roles for the PSO team, and serve as primary point of
contact for the vessel operator. To the maximum extent practicable, the
duty schedule shall be planned such that unconditionally-approved PSOs
are on duty with conditionally-approved PSOs.
PSOs must have successfully attained a bachelor's degree from an
accredited college or university with a major in one of the natural
sciences, a minimum of 30 semester hours or equivalent in the
biological sciences, and at least one undergraduate course in math or
statistics. The educational requirements may be waived if the PSO has
acquired the relevant skills through alternate experience. Requests for
such a waiver shall be submitted to NMFS and must include written
justification. Alternate experience that may be considered includes,
but is not limited to (1) secondary education and/or experience
comparable to PSO duties; (2) previous work experience conducting
academic, commercial, or government-sponsored marine mammal surveys;
and (3) previous work experience as a PSO (PSO must be in good standing
and demonstrate good performance of PSO duties).
PSOs must successfully complete relevant training, including
completion of all required coursework and passing (80 percent or
greater) a written and/or oral examination developed for the training
program.
PSOs must coordinate to ensure 360[deg] visual coverage around the
vessel from the most appropriate observation posts and shall conduct
visual observations using binoculars or night-vision equipment and the
naked eye while free from distractions and in a consistent, systematic,
and diligent manner.
PSOs may be on watch for a maximum of 4 consecutive hours followed
by a break of at least 2 hours between watches and may conduct a
maximum of 12 hours of observation per 24-hour period.
Any observations of marine mammal by crew members aboard any vessel
associated with the survey shall be relayed to the PSO team.
Atlantic Shores must work with the selected third-party PSO
provider to ensure PSOs have all equipment (including backup equipment)
needed to adequately perform necessary tasks, including accurate
determination of distance and bearing to observed marine mammals, and
to ensure that PSOs are capable of calibrating equipment as necessary
for accurate distance estimates and species identification. Such
equipment, at a minimum, shall include:
<bullet> At least one thermal (infrared) imagine device suited for
the marine environment;
<bullet> Reticle binoculars (e.g., 7 x 50) of appropriate quality
(at least one per PSO, plus backups);
<bullet> Global Positioning Units (GPS) (at least one plus
backups);
<bullet> Digital cameras with a telephoto lens that is at least 300
millimeter (mm) or equivalent on a full-frame single lens reflex (SLR)
(at least one plus backups). The camera or lens should also have an
image stabilization system;
<bullet> Equipment necessary for accurate measurement of distances
to marine mammal;
<bullet> Compasses (at least one plus backups);
<bullet> Means of communication among vessel crew and PSOs; and
<bullet> Any other tools deemed necessary to adequately and
effectively perform PSO tasks.
The equipment specified above may be provided by an individual PSO,
the third-part PSO provider, or the operator, but Atlantic Shores is
responsible for ensuring PSOs have the proper
[[Page 38843]]
equipment required to perform the duties specified in the IHA.
During good conditions (e.g., daylight hours; Beaufort sea state 3
or less), PSOs shall conduct observations when the specified acoustic
sources are not operating for comparison of sighting rates and behavior
with and without use of the specified acoustic sources and between
acquisition periods, to the maximum extent practicable.
The PSOs will be responsible for monitoring the waters surrounding
each survey vessel to the farthest extent permitted by sighting
conditions, including Exclusion Zones, during all HRG survey
operations. PSOs will visually monitor and identify marine mammals,
including those approaching or entering the established Exclusion 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.
Atlantic Shores plans to utilize 6 PSOs across each vessel to
account for shift changes, with a total of 18 during these surveys (6
PSOs per vessel x 3 vessels). At a minimum, during all HRG survey
operations (e.g., any day on which use of an HRG source is planned to
occur), one PSO must be on duty during daylight operations on each
survey vessel, conducting visual observations at all times on all
active survey vessels during daylight hours (i.e., from 30 minutes
prior to sunrise through 30 minutes following sunset) and two PSOs will
be on watch during nighttime operations. The PSO(s) would ensure
360[deg] visual coverage around the vessel from the most appropriate
observation posts and would conduct visual observations using
binoculars and/or night vision goggles and the naked eye while free
from distractions and in a consistent, systematic, and diligent manner.
PSOs may be on watch for a maximum of 4 consecutive hours followed by a
break of at least 2 hours between watches and may conduct a maximum of
12 hours of observation per 24-hr period. In cases where multiple
vessels are surveying concurrently, any observations of marine mammals
would be communicated to PSOs on all nearby survey vessels.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
proximity to Exclusion Zones. Reticulated binoculars must also be
available to PSOs for use as appropriate based on conditions and
visibility to support the sighting and monitoring of marine mammals.
During nighttime operations, night-vision goggles with thermal clip-ons
and infrared technology would be used. Position data would be recorded
using hand-held or vessel GPS units for each sighting.
During good conditions (e.g., daylight hours; Beaufort sea state
(BSS) 3 or less), to the maximum extent practicable, PSOs would also
conduct observations when the acoustic source is not operating for
comparison of sighting rates and behavior with and without use of the
active acoustic sources. Any observations of marine mammals by crew
members aboard any vessel associated with the survey would be relayed
to the PSO team. Data on all PSO observations would be recorded based
on standard PSO collection requirements (see Reporting Measures). This
would include dates, times, and locations of survey operations; dates
and times of observations, location and weather; details of marine
mammal sightings (e.g., species, numbers, behavior); and details of any
observed marine mammal behavior that occurs (e.g., noted behavioral
disturbances).
Reporting Measures
Atlantic Shores shall submit a draft comprehensive report on all
activities and monitoring results within 90 days of the completion of
the survey or expiration of the IHA, whichever comes sooner. The report
must describe all activities conducted and sightings of marine mammals,
must provide full documentation of methods, results, and interpretation
pertaining to all monitoring, and must summarize the dates and
locations of survey operations and all marine mammals sightings (dates,
times, locations, activities, associated survey activities). The draft
report shall also include geo-referenced, time-stamped vessel
tracklines for all time periods during which acoustic sources were
operating. Tracklines should include points recording any change in
acoustic source status (e.g., when the sources began operating, when
they were turned off, or when they changed operational status such as
from full array to single gun or vice versa). GIS files shall be
provided in Environmental Systems Research Institute, Inc. (ESRI)
shapefile format and include the Coordinated Universal Time (UTC) date
and time, latitude in decimal degrees, and longitude in decimal
degrees. All coordinates shall be referenced to the WGS84 geographic
coordinate system. In addition to the report, all raw observational
data shall be made available. The report must summarize the information
submitted in interim monthly reports (if required) as well as
additional data collected. A final report must be submitted within 30
days following resolution of any comments on the draft report. All
draft and final marine mammal and acoustic monitoring reports must be
submitted to <a href="/cdn-cgi/l/email-protection#c59597eb8c9195eb88aaabacb1aab7acaba297a0b5aab7b1b685abaaa4a4eba2aab3"><span class="__cf_email__" data-cfemail="8cdcdea2c5d8dca2c1e3e2e5f8e3fee5e2ebdee9fce3fef8ffcce2e3ededa2ebe3fa">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#5d14090d730d322931323e361d33323c3c733a322b"><span class="__cf_email__" data-cfemail="9fd6cbcfb1cff0ebf3f0fcf4dff1f0fefeb1f8f0e9">[email protected]</span></a>.
PSOs must use standardized electronic data forms to record data.
PSOs shall record detailed information about any implementation of
mitigation requirements, including the distance of marine mammal to the
acoustic source and description of specific actions that ensued, the
behavior of the animal(s), any observed changes in behavior before and
after implementation of mitigation, and if shutdown was implemented,
the length of time before any subsequent ramp-up of the acoustic
source. If required mitigation was not implemented, PSOs should record
a description of the circumstances. At a minimum, the following
information must be recorded:
1. Vessel names (source vessel and other vessels associated with
survey), vessel size and type, maximum speed capability of vessel;
2. Dates of departures and returns to port with port name;
3. The lease number;
4. PSO names and affiliations;
5. Date and participants of PSO briefings;
6. Visual monitoring equipment used;
7. PSO location on vessel and height of observation location above
water surface;
8. Dates and times (Greenwich Mean Time) of survey on/off effort
and times corresponding with PSO on/off effort;
9. Vessel location (decimal degrees) when survey effort begins and
ends and vessel location at beginning and end of visual PSO duty
shifts;
10. Vessel location at 30-second intervals if obtainable from data
collection software, otherwise at practical regular interval;
11. Vessel heading and speed at beginning and end of visual PSO
duty shifts and upon any change;
12. Water depth (if obtainable from data collection software);
13. Environmental conditions while on visual survey (at beginning
and end of PSO shift and whenever conditions change significantly),
including BSS and any other relevant weather conditions including cloud
cover, fog, sun glare, and overall visibility to the horizon;
14. Factors that may contribute to impaired observations during
each PSO shift change or as needed as environmental conditions change
(e.g.,
[[Page 38844]]
vessel traffic, equipment malfunctions); and
15. Survey activity information (and changes thereof), such as
acoustic source power output while in operation, number and volume of
airguns operating in an array, tow depth of an acoustic source, and any
other notes of significance (i.e., pre-start clearance, ramp-up,
shutdown, testing, shooting, ramp-up completion, end of operations,
streamers, etc.).
Upon visual observation of any marine mammal, the following
information must be recorded:
1. Watch status (sighting made by PSO on/off effort, opportunistic,
crew, alternate vessel/platform);
2. Vessel/survey activity at time of sighting (e.g., deploying,
recovering, testing, shooting, data acquisition, other);
3. PSO who sighted the animal;
4. Time of sighting;
5. Initial detection method;
6. Sightings cue;
7. Vessel location at time of sighting (decimal degrees);
8. Direction of vessel's travel (compass direction);
9. Speed of the vessel(s) from which the observation was made;
10. Identification of the animal (e.g., genus/species, lowest
possible taxonomic level or unidentified); also note the composition of
the group if there is a mix of species;
11. Species reliability (an indicator of confidence in
identification);
12. Estimated distance to the animal and method of estimating
distance;
13. Estimated number of animals (high/low/best);
14. Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
15. Description (as many distinguishing features as possible of
each individual seen, including length, shape, color, pattern, scars,
or markings, shape and size of dorsal fin, shape of head, and blow
characteristics);
16. Detailed behavior observations (e.g., number of blows/breaths,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior before and after point of closest approach);
17. Mitigation actions; description of any actions implemented in
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or
course alteration, etc.) and time and location of the action;
18. Equipment operating during sighting;
19. Animal's closest point of approach and/or closest distance from
the center point of the acoustic source; and
20. Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up) and time and location of the
action.
If a NARW is observed at any time by PSOs or personnel on any
survey vessels, during surveys or during vessel transit, Atlantic
Shores must 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. NARW sightings in any location may also be reported to the
U.S. Coast Guard via channel 16 and through the WhaleAlert app (<a href="https://www.whalealert.org">https://www.whalealert.org</a>).
In the event that personnel involved in the survey activities
discover an injured or dead marine mammal, Atlantic Shores must report
the incident to NMFS as soon as feasible by phone (866-755-6622) and by
email (<a href="/cdn-cgi/l/email-protection#89e7e4effaa7eee8fba7e0e7eae0edece7fde8e5a4fde8e2ecc9e7e6e8e8a7eee6ff"><span class="__cf_email__" data-cfemail="6e0003081d40090f1c4007000d070a0b001a0f02431a0f050b2e00010f0f40090118">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#5202007c1b06027c1f3d3c3b263d203b3c350037223d202621123c3d33337c353d24"><span class="__cf_email__" data-cfemail="277775096e7377096a48494e5348554e494075425748555354674948464609404851">[email protected]</span></a>) as soon as feasible. The report must
include the following information:
1. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
2. Species identification (if known) or description of the
animal(s) involved;
3. Condition of the animal(s) (including carcass condition if the
animal is dead);
4. Observed behaviors of the animal(s), if alive;
5. If available, photographs or video footage of the animal(s); and
6. General circumstances under which the animal was discovered.
In the unanticipated event of a ship strike of a marine mammal by
any vessel involved in the activities covered by the IHA, Atlantic
Shores must report the incident to NMFS by phone (866-755-6622) and by
email (<a href="/cdn-cgi/l/email-protection#bdd3d0dbce93dadccf93d4d3ded4d9d8d3c9dcd190c9dcd6d8fdd3d2dcdc93dad2cb"><span class="__cf_email__" data-cfemail="9ff1f2f9ecb1f8feedb1f6f1fcf6fbfaf1ebfef3b2ebfef4fadff1f0fefeb1f8f0e9">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#90c0c2bed9c4c0beddfffef9e4ffe2f9fef7c2f5e0ffe2e4e3d0fefff1f1bef7ffe6"><span class="__cf_email__" data-cfemail="0b5b5925425f5b25466465627f647962656c596e7b64797f784b65646a6a256c647d">[email protected]</span></a>) as soon as feasible. The report
would include the following information:
1. Time, date, and location (latitude/longitude) of the incident;
2. Species identification (if known) or description of the
animal(s) involved;
3. Vessel's speed during and leading up to the incident;
4. Vessel's course/heading and what operations were being conducted
(if applicable);
5. Status of all sound sources in use;
6. Description of avoidance measures/requirements that were in
place at the time of the strike and what additional measures were
taken, if any, to avoid strike;
7. Environmental conditions (e.g., wind speed and direction,
Beaufort sea state, cloud cover, visibility) immediately preceding the
strike;
8. Estimated size and length of animal that was struck;
9. Description of the behavior of the marine mammal immediately
preceding and/or following the strike;
10. If available, description of the presence and behavior of any
other marine mammals immediately preceding the strike;
11. Estimated fate of the animal (e.g., dead, injured but alive,
injured and moving, blood or tissue observed in the water, status
unknown, disappeared); and
12. To the extent practicable, photographs or video footage of the
animal(s).
Determinations
When issuing the 2022 IHA (87 FR 24103, April 22, 2022), NMFS found
Atlantic Shores' HRG surveys would have a negligible impact to species
or stocks annual rates of recruitment and survival and the amount of
taking would be small relative to the population size of such species
or stocks (less than 6 percent). Atlantic Shores' 2023 HRG survey
activities are identical to those analyzed in support of the 2022 IHA.
Additionally, the potential effects of the activity, taking into
consideration the required mitigation and related required monitoring
and reporting measures, are identical to those evaluated in support of
the 2022 IHA. NMFS notes that there is a minor increase in estimated
take numbers for six marine mammal species and/or stocks (refer back to
Table 3). However, the total amount of takes authorized is small
relative to the best available population size of each species or stock
(less than 1 percent for 13 stocks; less than 2 percent for 2 stocks;
and less than 19 percent for the remaining stock (Western North
Atlantic Migratory Coastal stock of common bottlenose dolphins)).
Additionally, only Level B harassment is authorized, which NMFS expects
would be of a lower severity, predominantly 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. NMFS does not
expect that the 2023 survey activities will have long-term or permanent
impacts as the acoustic source would be mobile and would 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
[[Page 38845]]
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 are expected to result.
As previously discussed in the 2022 IHA (87 FR 24103, April 22,
2022), impacts from the survey are expected to be localized to the
specific area of activity and only during periods of time where
Atlantic Shores' acoustic sources are active. While areas of biological
importance to fin whales, humpback whales, and harbor seals can be
found off the coast of New Jersey and New York, NMFS does not expect
these activities to affect these specific areas. This is due to the
combination of the mitigation and monitoring measures being required of
Atlantic Shores, as well as the location of these biologically
important areas. All of these important areas are found outside of the
range of this survey area, as is the case with fin whales and humpback
whales (BIAs found further north), and, therefore, are not expected to
be impacted by Atlantic Shores' 2023 survey activities. Three major
haulout sites exist for harbor seals within ECR North along New Jersey,
including at Great Bay, Sandy Hook, and Barnegat Inlet (Conserve
Wildlife Foundation of New Jersey (CWFNJ), 2015). As hauled out seals
would be out of the water, no in-water effects are expected.
Atlantic Shores' project would occur in a small fraction of the
migratory corridor for the NARW and impacts are expected to be limited
to low levels of behavioral harassment, resulting in temporary and
minor behavioral changes during any brief period of exposure. As noted
for the 2022 IHA (87 FR 24103, April 22, 2022), the size of the survey
area (5,868 km\2\) in comparison with the entire migratory habitat for
the NARW (BIA of 269,448 km\2\) is small, representing 2.11 percent of
the entire migratory corridor. Given the transitory nature of NARWs in
this area and due to the lack of year-round ``core'' NARW foraging
habitat (Oleson et al., 2020) (such habitat is located much further
north in the southern area of Martha's Vineyard and Nantucket Islands
where both visual and acoustic detections of NARWs indicate a nearly
year-round presence), it is unlikely for any exposure to cause chronic
effects as any exposure would be short and intermittent. Furthermore,
given the small size of the Level B harassment zones (141 m) and the
robust suite of required mitigation and monitoring measures, with
specific note on the mitigation zones for NARWs (exclusion zone; 500
m), NMFS does not expect adverse impacts on this species. Lastly, NMFS
notes the reduction in requested take from the 2022 IHA (87 FR 4200,
January 27, 2022; 87 FR 24103, April 22, 2022) due to the revised Duke
University density data (Roberts et al., 2023). Under the 2022 IHA,
NMFS authorized 17 instances of take for NARWs. Here, NMFS has
authorized only three takes by Level B harassment representing less
than 1 percent of the overall species abundance. Given the updates to
the density for this species in particular during the periods where
project activities are expected to be ongoing, NMFS expects low-level
impacts (e.g., temporary avoidance of the area) from the 2023 project
on NARWs.
We also note that our findings for other species with active UMEs
or species where BIAs or haulouts have been previously described in the
2022 IHA remain applicable to this project. 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 adverse 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) Atlantic
Shores' 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
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 is authorizing the incidental take of four species of
marine mammals which are listed under the ESA, including the North
Atlantic right, fin, sei, and sperm whale and 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 (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
Atlantic Shores for conducting site characterization surveys off New
Jersey and New York from June 9, 2023 through June 8, 2024, provided
the previously mentioned mitigation, monitoring, and reporting
requirements are incorporated. The final IHA and Atlantic Shores' 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: June 7, 2023.
Catherine Marzin,
Deputy Director, Office of Protected Resources, National Marine
Fisheries Service.
[FR Doc. 2023-12532 Filed 6-9-23; 8:45 am]
BILLING CODE 3510-22-P
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