Notice2023-13719
Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys in the New York Bight
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 28, 2023
Effective
June 20, 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 Attentive Energy LLC (AE) to incidentally harass marine mammals during marine site characterization surveys off of New York and New Jersey in the New York Bight.
Full Text
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<title>Federal Register, Volume 88 Issue 123 (Wednesday, June 28, 2023)</title>
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[Federal Register Volume 88, Number 123 (Wednesday, June 28, 2023)]
[Notices]
[Pages 41888-41908]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-13719]
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DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric Administration
[RTID 0648-XD055]
Takes of Marine Mammals Incidental to Specified Activities;
Taking Marine Mammals Incidental to Marine Site Characterization
Surveys in the New York Bight
AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA), Commerce.
ACTION: Notice; issuance of an Incidental Harassment Authorization.
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SUMMARY: In accordance with the regulations implementing the Marine
Mammal Protection Act (MMPA) as amended, notification is hereby given
that NMFS has issued an Incidental Harassment Authorization (IHA) to
Attentive Energy LLC (AE) to incidentally harass marine mammals during
marine site characterization surveys off of New York and New Jersey in
the New York Bight.
DATES: This Authorization is effective from June 20, 2023 through June
19, 2024.
FOR FURTHER INFORMATION CONTACT: Karolyn Lock, Office of Protected
Resources, NMFS, (301) 427-8401. Electronic copies of the application
and supporting documents, as well as a list of the references cited in
this document, may be obtained online at <a href="https://www.fisheries.noaa.gov/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>. 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
[[Page 41889]]
engage in a specified activity (other than commercial fishing) within a
specified geographical region if certain findings are made and either
regulations are proposed or, if the taking is limited to harassment, a
notice of a proposed IHA is provided to the public for review.
Authorization for incidental takings shall be granted if NMFS finds
that the taking will have a negligible impact on the species or
stock(s) and will not have an unmitigable adverse impact on the
availability of the species or stock(s) for taking for subsistence uses
(where relevant). Further, NMFS must prescribe the permissible methods
of taking and other ``means of effecting the least practicable adverse
impact'' on the affected species or stocks and their habitat, paying
particular attention to rookeries, mating grounds, and areas of similar
significance, and on the availability of the species or stocks for
taking for certain subsistence uses (referred to in shorthand as
``mitigation''); and requirements pertaining to the mitigation,
monitoring and reporting of the takings are set forth. The definitions
of all applicable MMPA statutory terms cited above are included in the
relevant sections below.
Summary of Request
On December 28, 2022, NMFS received a request from AE for an IHA to
take marine mammals incidental to conducting marine site
characterization surveys in coastal waters off of New York and New
Jersey in the New York Bight, specifically within the Bureau of Ocean
Energy Management (BOEM) Commercial Lease of Submerged Lands for
Renewable Energy Development on the Outer Continental Shelf (Lease)
Area OCS-A 0538 and associated export cable route (ECR) area. Following
NMFS' review of the application, the application was deemed adequate
and complete on February 22, 2023. AE's request is for take of small
numbers of 15 species (16 stocks) of marine mammals by Level B
harassment only. Neither AE nor NMFS expect serious injury or mortality
to result from this activity and, therefore, an IHA is appropriate.
There are no changes from the proposed IHA to the final IHA.
Description of Activity
Overview
AE plans to conduct marine site characterization surveys, including
high-resolution geophysical (HRG) surveys, in coastal waters off of New
Jersey and New York in the New York Bight, specifically within the BOEM
Lease Area OCS-A 0538 and associated ECR area.
The planned marine site characterization surveys are designed to
obtain data sufficient to meet BOEM guidelines for providing
geophysical, geotechnical, and geohazard information for site
assessment plan surveys and/or construction and operations plan
development. The objective of the surveys is to support the site
characterization, siting, and engineering design of offshore wind
project facilities including wind turbine generators, offshore
substations, and submarine cables within the Lease Area. Up to two
vessels may conduct survey efforts concurrently. Underwater sound
resulting from AE's marine site characterization survey activities,
specifically HRG surveys, have the potential to result in incidental
take of marine mammals in the form of Level B harassment.
Dates and Duration
The survey is planned to begin as soon as practicable and estimated
to require 201 survey days across a maximum of two vessels operating
concurrently within a single year. A ``survey day'' is defined as a 24-
hour (hr) activity period in which active acoustic sound sources are
used. It is expected that each vessel would cover approximately 170
kilometers (km) per day based on the applicant's expectations regarding
data acquisition efficiency, and there is up to 21,745 km (13,512
miles) of track line of survey effort planned; 14,025 km in the Lease
Area and 7,720 km in the ECR area. The IHA would be effective for 1
year from the date of issuance.
Specific Geographic Region
AE's survey activities would occur in coastal waters off of New
York and New Jersey in the New York Bight, specifically within Lease
Area OCS-A 0538 and the associated ECR area (Figure 1). The Survey Area
(i.e., the Lease Area and ECR) is between 1 and 65 meters (m) in water
depth. The Lease Area does not include water depths below 30 m, only
portions of the ECR area does (Figure 2).
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Detailed Description of Specified Activity
AE's marine site characterization surveys include HRG surveys and
geotechnical sampling activities within the Lease Area and the ECR
area. The total HRG survey tracklines for the Survey Area is 21,745 km,
with 14,025 km in the Lease Area and 7,720 km in the ECR Area. The
geotechnical sampling activities, including use of vibracores and
seabed core penetration tests, would occur during the same period as
the HRG survey activities and would use an additional survey vessel.
NMFS does not expect geotechnical sampling activities to present
reasonably anticipated risk of causing incidental take of marine
mammals, and these activities are not discussed further in this notice.
AE plans to conduct HRG survey operations, including multibeam
depth sounding, seafloor imaging, and medium penetration sub-bottom
profiling (SBP). The HRG surveys will
[[Page 41892]]
include the use of seafloor mapping equipment with operating
frequencies above 180 kilohertz (kHz) (e.g., side-scan sonar (SSS),
multibeam echosounders (MBES)); gradiometers that have no acoustic
output; non-impulsive, parametric sub-bottom profilers (SBPs) with
narrow beamwidth; and medium-penetration SBP equipment (e.g., boomers
and sparkers) with operating frequencies below 180 kilohertz (kHz).
NMFS does not expect operation of the aforementioned survey equipment
to result in take of marine mammals, and these activities are not
discussed further in this notice.
The only acoustic sources planned for use during AE's HRG survey
activities with expected potential to cause incidental take of marine
mammals are the sparker and boomer. Sparkers and boomers are medium
penetration, impulsive sources used to map deeper subsurface
stratigraphy. Sparkers create omnidirectional acoustic pulses from 50
Hz to 4 kHz, are typically towed behind the vessel, and may be operated
with different numbers of electrode tips to allow tuning of the
acoustic waveform for specific applications. The sparker system planned
for use is the Dual Geo-Spark 2000X (400 tip/800 J). A boomer is a
broadband source operating in the 3.5 Hz to 10 kHz frequency range. The
boomer system planned for use is the Geo-Boomer 300-500.
A detailed description of AE's planned HRG surveys is provided in
the Federal Register notice for the proposed IHA (88 FR 24553, April
21, 2023). Since that time, no changes have been made to the planned
HRG survey activities. Therefore, a detailed description is not
provided here. Please refer to that Federal Register notice for the
detailed description of the specific activity.
Comments and Responses
A notice of NMFS' proposal to issue an IHA to AE was published in
the Federal Register on April 21, 2023 (88 FR 24553). That notice
described, in detail, AE's proposed activities, the marine mammal
species that may be affected by the activities, and the anticipated
effects on marine mammals. In that notice, we requested public input on
the request for authorization described therein, our analyses, the
proposed authorization, and any other aspect of the notice of proposed
IHA, and requested that interested persons submit relevant information,
suggestions, and comments. This proposed notice was available for a 30-
day public comment period.
NMFS received eleven comment letters. Two of these comment letters
were from non-governmental organizations: the Responsible Offshore
Development Alliance (RODA) and Clean Ocean Action (COA), and one was
from an elected local governmental official (Mayor of Borough of
Seaside Park, New Jersey; Seaside Park). The remaining eight comments
were from private citizens.
All comments from private citizens expressed general opposition to
issuance of the IHA or to the underlying associated activities. We
reiterate here that NMFS' proposed actions concerns only the
authorization of marine mammal take incidental to the planned surveys--
NMFS' authority under the MMPA does not extend to the surveys
themselves or to wind energy development more generally. Many comments
received request that NMFS not issue any IHAs related to wind energy
development and/or expressed opposition for wind energy development
generally without providing information relevant to NMFS' decision. We
do not specifically address comments expressing general opposition to
activities related to wind energy development or respond to comments
that are out of scope of the proposed IHA (88 FR 24553), such as
comments on other Federal agency processes and activities not planned
under this IHA.
All substantive comments and NMFS' responses are provided below,
and all comment letters are available online at <a href="https://www.fisheries.noaa.gov/action/incidental-take-authorization-attentive-energy-llc-marine-site-characterization-surveys-0">https://www.fisheries.noaa.gov/action/incidental-take-authorization-attentive-energy-llc-marine-site-characterization-surveys-0</a>. Please review the
comment letters for full details regarding the comments and associated
rationale.
Comment 1: Multiple commenters expressed concern that negative
impacts to local fishermen and/or 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 this IHA. RODA specifically noted concern regarding existing fishery
restrictions as a result of other North Atlantic right whale
protections.
Response: Neither the MMPA nor our implementing regulations require
NMFS to analyze impacts to other industries (e.g., fisheries) or
coastal communities from issuance of an Incidental Take Authorization
(ITA). Nevertheless, as detailed in the proposed IHA notice, NMFS has
analyzed the potential for adverse impacts such as vessel strikes to
marine mammals, including North Atlantic right whales, as a result of
AE's planned site characterization survey activities and determined
that no serious injury or mortality is anticipated. In fact, as
discussed in the Negligible Impact Analysis and Determination section
later in this document, no greater than low-level behavioral harassment
is expected for any affected species. For North Atlantic right whales
in particular, it is considered unlikely, as a result of the required
precautionary shutdown zone (i.e., 500 m versus the estimated maximum
Level B harassment zone of 141 m), that the authorized take would occur
at all. Thus, NMFS would also not anticipate the impacts raised in this
comment as a result of issuing this IHA for site characterization
survey activities to AE.
Comment 2: Multiple commenters expressed concern about an alleged
lack of adequate analysis of cumulative impacts to marine mammals.
Response: Neither the MMPA nor NMFS' codified implementing
regulations call for consideration of other unrelated activities and
their impacts on populations. The preamble for NMFS' implementing
regulations (54 FR 40338, September 29, 1989) states in response to
comments that the impacts from other past and ongoing anthropogenic
activities are to be incorporated into the negligible impact analysis
via their impacts on the baseline. Consistent with that direction, NMFS
has factored into its negligible impact analysis the impacts of other
past and ongoing anthropogenic activities via their impacts on the
baseline, e.g., as reflected in the density/distribution and status of
the species, population size and growth rate, and other relevant
stressors. The 1989 final rule for the MMPA implementing regulations
also addressed public comments regarding cumulative effects from
future, unrelated activities. There NMFS stated that such effects are
not considered in making findings under section 101(a)(5) concerning
negligible impact. In this case, this IHA, as well as other IHAs
currently in effect or proposed within the specified geographic region,
are appropriately considered an unrelated activity relative to the
others. The IHAs are unrelated in the sense that they are discrete
actions under section 101(a)(5)(D), issued to discrete applicants.
Section 101(a)(5)(D) of the MMPA requires NMFS to make a
determination that the take incidental to a ``specified activity'' will
have a negligible impact on the affected species or stocks of marine
mammals. NMFS' implementing regulations require applicants to include
in their request a detailed description of
[[Page 41893]]
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, AE was the applicant for the IHA, and
we are responding to the specified activity as described in that
application (and making the necessary findings on that basis).
Through the response to public comments in the 1989 implementing
regulations, NMFS also indicated (1) that we would consider cumulative
effects that are reasonably foreseeable when preparing a National
Environmental Policy Act (NEPA) analysis, and (2) that reasonably
foreseeable cumulative effects would also be considered under section 7
of the Endangered Species Act (ESA) for ESA-listed species, as
appropriate. Accordingly, NMFS has written Environmental Assessments
(EA) that addressed cumulative impacts related to substantially similar
activities, in similar locations, e.g., the 2019 Avangrid EA for survey
activities offshore North Carolina and Virginia; the 2017 Ocean Wind,
LLC EA for site 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 AE 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 AE's IHA, which included consideration
of extraordinary circumstances.
Separately, the cumulative effects of substantially similar
activities in the northwest Atlantic Ocean have been analyzed in the
past under section 7 of the ESA when NMFS has engaged in formal intra-
agency consultation, such as the 2013 programmatic Biological Opinion
for BOEM Lease and Site Assessment Rhode Island, Massachusetts, New
York, and New Jersey Wind Energy Areas (<a href="https://repository.library.noaa.gov/view/noaa/29291">https://repository.library.noaa.gov/view/noaa/29291</a>). Analyzed activities
include those for which NMFS issued previous IHAs (82 FR 31562, July 7,
2017; 83 FR 28808, June 21, 2018; 83 FR 36539, July 30, 2018; and 86 FR
26465, May 10, 2021), which are similar to those planned by AE under
this current IHA request. This Biological Opinion determined that NMFS'
issuance of IHAs for site characterization survey activities associated
with leasing, individually and cumulatively, are not likely to
adversely affect listed marine mammals. NMFS notes that, while issuance
of this IHA is covered under a different consultation, this BiOp
remains valid.
Comment 3: Multiple commenters urged NMFS to deny the proposed
project and/or postpone any offshore wind (OSW) activities until NMFS
determines effects of all OSW activities on marine mammals in the
region and determines that the recent whale deaths are not related to
OSW activities. Similarly, some commenters provided general concerns
regarding recent whale stranding events on the Atlantic Coast,
including speculation that the strandings may be related to wind energy
development-related activities. However, the commenters did not provide
any specific information supporting these concerns.
Response: NMFS authorizes take of marine mammals incidental to
surveys but does not authorize the surveys themselves. Therefore, while
NMFS has the authority to modify, suspend, or revoke an IHA if the IHA
holder fails to abide by the conditions prescribed therein (including,
but not limited to, failure to comply with monitoring or reporting
requirements), or if NMFS determines that (1) the authorized taking is
having or is likely to have more than a negligible impact on the
species or stocks of affected marine mammals, or (2) the prescribed
measures are likely not or are not effecting the least practicable
adverse impact on the affected species or stocks and their habitat, it
is not within NMFS' jurisdiction to impose a moratorium on offshore
wind development or to require surveys to cease on the basis of
unsupported speculation.
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.
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 4: Multiple commenters expressed a concern that the
proposed IHA would lead to mortality (death) of marine mammals as a
result of AE's project.
Response: 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. NMFS cannot authorize
mortality or serious injury via an IHA. Additionally, such taking is
prohibited under Condition 3(c) of the IHA and may result in
modification, suspension, or revocation of the IHA. NMFS notes there
has never
[[Page 41894]]
been a report of any serious injuries or mortalities of a marine mammal
associated with site characterization surveys.
The best available science indicates that Level B harassment, or
disruption of behavioral patterns, may occur as a result of AE's
specified activities. We also refer to the Greater Atlantic Regional
Fisheries Office (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 at
<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 5: Commenters claimed that NMFS did not provide a
meaningful opportunity for public engagement and/or asserted that the
review process for this IHA was too rapid and NMFS' due diligence was
lacking.
Response: NMFS has satisfied the requirements of the MMPA, which
requires that NMFS publish notice of a proposed authorization and
request public comment for a period of 30 days. The notice of proposed
IHA was published in the Federal Register on April 21, 2023 (88 FR
24553) and was open for a 30-day comment period (i.e., through May 22,
2023). Following conclusion of the comment period, NMFS has thoroughly
reviewed and duly considered all relevant comments received.
NMFS' ITA application and review process has numerous steps to
ensure due diligence occurs for all ITA requests. On average,
applications for IHAs take 5-8 months from application received to the
final decisional date where an IHA is either issued or denied (50 CFR
216.104(d)). Following an application being deemed adequate and
complete, the ITA application progresses through the NMFS authorization
review and decisional process, which includes a public notice period of
30 days (50 CFR 216.104(b) and (c)). The public comment period allows
for meaningful public engagement. The public comment period provides a
mechanism for external input, including the opportunity for new
scientific information relevant to the proposed activities, to be
submitted for agency consideration. More information on the
authorization steps and timelines can be found 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 this case, NMFS received AE's initial application on December
28, 2023 and completed several rounds of agency review and analysis
before considering the application adequate and complete on February
22, 2023. NMFS drafted the Federal Register notice of the proposed IHA
and proposed IHA, which went through additional rounds of internal
review. The notice and proposed IHA were published in the Federal
Register on April 21, 2023 (88 FR 24553) and was open for a 30-day
comment period. NMFS reviewed all within-scope comments received for
consideration in the final decisional process.
Comment 6: Commenters stated that NMFS was not utilizing the best
available science when assessing impacts to marine mammals. Commenters
also asserted NMFS had not fully considered the effect of the project
on North Atlantic right whales (NARW).
Response: NMFS relied upon the best scientific evidence available,
including, but not limited to, the draft 2022 Stock Assessment Reports
(SAR), scientific literature, and Duke University's density model
(Roberts et al., 2022)), in analyzing the impacts of AE's specified
activities on marine mammals, including NARWs. While commenters suggest
generally that NMFS consider the best scientific evidence available,
none of the commenters provided additional scientific information for
NMFS to consider.
NMFS determined that AE's surveys have the potential to take marine
mammals by Level B harassment and does not anticipate or authorize
mortality (death), serious injury, or Level A harassment of any marine
mammal species, including NARW. Further, NMFS does not expect that the
generally short-term, intermittent, and transitory nature of AE's
marine site characterization survey activities will create conditions
of acute or chronic acoustic exposure leading to long-term
physiological stress responses in marine mammals.
Comment 7: RODA states that, to their knowledge, there are no
resources easily accessible to the public to understand what
authorizations are required for each of these activities (pre-
construction surveys, construction, operations, monitoring surveys,
etc.). RODA recommends that NMFS improve the transparency of this
process and move away from what it refers to as a ``segmented phase-by-
phase and project-by-project approach to IHAs''. RODA also requests a
``comprehensive list/table of all Level A and Level B takes under
currently approved Authorizations per project, as well as Level A and
Level B takes per project being requested in all Authorization
applications currently under review''.
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 authorizes the
requested 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 refers RODA to its website for more information
on the marine mammal incidental take authorization process and
timelines: <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>.
NMFS emphasizes that an IHA does not authorize the activity itself
but authorizes the take of marine mammals incidental to the ``specified
activity'' for which incidental take coverage is being sought. In this
case, NMFS is responding to AE's request to incidentally take marine
mammals while engaged in marine site characterization surveys and
determining whether the necessary findings can be made based on AE's
application. The authorization of AE's survey activities is not within
NMFS' jurisdiction. NMFS refers RODA to BOEM's website: <a href="https://www.boem.gov/renewable-energy">https://www.boem.gov/renewable-energy</a>.
A list of all proposed and issued IHAs for renewable energy
activities, such as AE's marine site characterization surveys,
including the requested, proposed, and/or authorized take is available
on the agency website 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>.
Comment 8: A commenter 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.
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Response: NMFS has determined that OSW development projects may
impact several Northeast Fisheries Science Center (NEFSC) surveys,
including aerial surveys for protected species. NEFSC has developed a
Federal survey mitigation program to mitigate the impacts to these
surveys and is in the early stages of implementing this program.
However, this impact is outside the scope of analysis related to the
authorization of take incidental to AE's specified activity under the
MMPA.
Comment 9: Multiple commenters expressed concerns with what they
characterize as the high amount of increased vessel traffic associated
with the OSW projects throughout the region in areas transited or
utilized by certain protected resources, as well as concern for vessel
noise and increased risk for vessel strikes.
Response: AE did not request authorization for take incidental to
vessel strike during AE's marine site characterization survey.
Nevertheless, NMFS analyzed the potential for vessel strikes to occur
during the survey and determined that the potential for vessel strike
is so low as to be discountable. For this IHA, NMFS did not authorize
any take of marine mammals incidental to vessel strike resulting from
the survey. If AE were to strike a marine mammal with a vessel, this
would be an unauthorized take and a violation of the MMPA. This gives
AE 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(m) in the issued IHA contains a suite
of non-discretionary requirements pertaining to vessel strike
avoidance, including vessel operation protocols and monitoring. NMFS
takes seriously the risk of vessel strike and has prescribed measures
sufficient to avoid the potential for vessel strike to the extent
practicable.
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 AE vessels, given the limited additional survey-related
vessel traffic relative to existing traffic in the survey area, the
comprehensive visual monitoring, and other additional mitigation
measures described herein, NMFS believes these measures are
sufficiently protective to avoid vessel strikes. These measures are
described fully in the Mitigation section below, and include, but are
not limited to: training for all vessel observers and captains, a
requirement that all vessel operators comply with 10 knots (18.5 km/
hour) or less speed restrictions in any SMA, DMA or Slow Zone while
underway, 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 AE
personnel, vessel operational protocol should any marine mammal be
observed, and visual monitoring. Vessel speed mitigations are also
briefly discussed in NMFS' response to Comment 2.
The potential for impacts related to an overall increase in the
amount of vessel traffic due to OSW development is separate from the
aforementioned analysis of potential for vessel strike during AE's
specified survey activities and is not discussed further as it is
outside the scope of this specific action.
Comment 10: A commenter asserted that additional clarification
should be added to the IHA that explicitly states if weather or other
conditions limit the range of observation, shutdown zones will be
initiated. Multiple commenters also questioned the feasibility of the
shutdown mitigation requirements in real-world conditions and what
would occur if the authorized take levels were exceeded. Concerns were
also asserted on the required mitigation measures, assessing the
effectiveness of the mitigation measures, and reporting the use of the
mitigation measures in real-time.
Response: In regards to a scenario where AE exceeds their
authorized take levels, any further take would be unauthorized and,
therefore, prohibited under the MMPA.
All mitigation measures stated in this notice and in the issued IHA
are considered feasible. NMFS works with each ITA applicant, including
AE, to ensure that project-specific mitigation measures are possible in
real-world conditions. This includes shutdown zones when there is
reduced visibility. As stated in the IHA condition 5(d), AE must ensure
certain equipment is provided to protected species observers (PSOs),
such as thermal (infrared) cameras, to allow PSOs to adequately
complete their duties, including in reduced-visibility conditions. NMFS
does not agree that additional wording is necessary within the IHA to
further describe the requirement and implementation of shutdown zones.
If NMFS determines during the effective period of the IHA that the
prescribed measures are likely not or are not effecting the least
practicable adverse impact on the affected species or stocks and their
habitat, NMFS may modify, suspend, or revoke the IHA. NMFS disagrees
that the IHA's mitigation measures are insufficient.
NMFS reviews required reporting (see Monitoring and Reporting) and
uses the information to evaluate the mitigation measure effectiveness.
Additionally, the mitigation measures included in AE's IHA are not
unique, and data from prior IHAs support the effectiveness of these
mitigation measures. NMFS finds the level of reporting currently
required is sufficient for managing the issued IHA and monitoring the
affected stocks of marine mammals.
Comment 11: Commenters objected to NMFS' ``small numbers''
determination for the numbers of marine mammals taken by Level B
harassment under AE's planned activities.
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)). NMFS has made the necessary small
numbers finding for all affected species and stocks in this case.
Comment 12: Several commenters expressed interest in understanding
the outcome if the number of actual takes exceed the number authorized
during construction of an offshore wind project (i.e., would the
project be stopped mid-construction or operation), and how offshore
wind developers will be held accountable for impacts to protected
species such that impacts are not inadvertently assigned to fishermen,
should they occur. Lastly, RODA maintains that the OSW industry must be
accountable for incidental takes from
[[Page 41896]]
construction and operations separately from the take authorizations for
managed commercial fish stocks.
Response: NMFS reiterates that this IHA authorizes incidental take
of marine mammals during marine site characterization survey activities
and not offshore wind project construction and operation activities.
Therefore, these comments are outside the scope of the proposed IHA.
Fishing impacts generally center on entanglement in fishing gear, which
is a very acute, visible, and severe impact. In contrast, the impacts
incidental to AE's site characterization survey activities are
primarily acoustic in nature resulting in behavioral disturbance.
Because of the difference in potential impacts (i.e., physical versus
auditory), any impacts resulting from AE's survey activities would not
be assigned to fishermen. The impacts of commercial fisheries on marine
mammals and incidental take for said fishing activities are managed
separately from those of non-commercial fishing activities such as
offshore wind site characterization surveys, under MMPA section 118.
Comment 13: A commenter expressed 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 quantitative
and qualitative components) indicates, because of the relative movement
of whales and vessels, we do not expect these exposures with the
potential for masking to be of a long duration within a given day.
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 14: A commenter expressed concern about the use of multiple
vessels concurrently performing the survey work and that vessel work
should be limited to no more than one vessel performing acoustic
surveying at a time within 200 miles (321.9 km) of other surveying
vessels.
Response: NMFS appreciates the commenters' concerns, 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.
Description of Marine Mammals in the Area of Specified Activities
Sections 3 and 4 of the application summarize available information
regarding status and trends, distribution and habitat preferences, and
behavior and life history of the potentially affected species. NMFS
fully considered all of this information, and we refer the reader to
these descriptions instead of reprinting the information here.
Additional information regarding population trends and threats may be
found in NMFS' Stock Assessment Reports (SARs; <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>) and
more general information about these species (e.g., physical and
behavioral descriptions) may be found on NMFS' website at <a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>.
Table 1 lists all species or stocks for which take is authorized
for this activity and summarizes information related to the species or
stock, including regulatory status under the MMPA and Endangered
Species Act (ESA) and potential biological removal (PBR), where known.
PBR is defined by the MMPA as the maximum number of animals, not
including natural mortalities, that may be removed from a marine mammal
stock while allowing that stock to reach or maintain its optimum
sustainable population (as described in NMFS' SARs). While no serious
injury or mortality is authorized here, PBR and annual serious injury
and mortality from anthropogenic sources are included here as gross
indicators of the status of the species or stocks and other threats.
Marine mammal abundance estimates presented in this document
represent the total number of individuals that make up a given stock or
the total number estimated within a particular study or survey area.
NMFS' stock abundance estimates for most species represent the total
estimate of individuals within the geographic area, if known, that
comprises that stock. For some species, this geographic area may extend
beyond U.S. waters. All MMPA managed stocks in this region are assessed
in NMFS' U.S. Atlantic and Gulf of Mexico SARs. All values presented in
Table 1 are the most recent available at the time of publication (draft
2022 SAR) and are available online at <a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">https://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>.
Table 1--Species and Stocks Likely Impacted by the Specified Activities
--------------------------------------------------------------------------------------------------------------------------------------------------------
ESA/ MMPA status; Stock abundance (CV,
Common name Scientific name Stock strategic (Y/N) Nmin, most recent PBR Annual M/
\1\ abundance survey) \2\ SI \3\
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Artiodactyla--Infraorder Cetacea--Mysticeti (baleen whales)
--------------------------------------------------------------------------------------------------------------------------------------------------------
North Atlantic right whale.......... Eubalaena glacialis.... Western Atlantic Stock. E/D, Y 338 (0; 332; 2020).... 0.7 8.1
Humpback whale...................... Megaptera novaeangliae. Gulf of Maine.......... -/-; Y 1,396 (0; 1,380; 2016) 22 12.15
Fin whale........................... Balaenoptera physalus.. Western North Atlantic E/D, Y 6,802 (0.24; 5,573; 11 1.8
Stock. 2016).
Sei whale........................... Balaenoptera borealis.. Nova Scotia Stock...... E/D, Y 6,292 (1.02; 3,098; 6.2 0.8
2016).
[[Page 41897]]
Minke whale......................... Balaenoptera Canadian East Coastal -/-, N 21,968 (0.31; 17,002; 170 10.6
acutorostrata. Stock. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Odontoceti (toothed whales, dolphins, and porpoises)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sperm whale......................... Physeter macrocephalus. North Atlantic Stock... E/D, Y 4,349 (0.28; 3,451; 3.9 0
2016).
Long-finned pilot whale............. Globicephala melas..... Western North Atlantic -/-, N 39,215 (0.3; 30,627; 306 9
Stock. 2016).
Atlantic white-sided dolphin........ Lagenorhynchus acutus.. Western North Atlantic -/-, N 93,233 (0.71; 54,443; 544 27
Stock. 2016).
Bottlenose dolphin.................. Tursiops truncatus..... Western North Atlantic -/-, N 62,851 (0.23; 51,914; 519 28
Offshore Stock. 2016).
Bottlenose dolphin.................. Tursiops truncatus..... Northern Migratory -/D, Y 6,639 (0.41; 4,759; 48 12.2-21.5
Coastal. 2016).
Common dolphin...................... Delphinus delphis...... Western North Atlantic -/-, N 172,974 (0.21, 1,452 390
Stock. 145,216, 2016).
Atlantic spotted dolphin............ Stenella frontalis..... Western North Atlantic -/-, N 39,921 (0.27; 32,032; 320 0
Stock. 2016).
Risso's dolphin..................... Grampus griseus........ Western North Atlantic -/-, N 35,215 (0.19; 30,051; 301 34
Stock. 2016).
Harbor porpoise..................... Phocoena phocoena...... Gulf of Maine/Bay of -/-, N 95,543 (0.31; 74,034; 851 164
Fundy Stock. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
Order Carnivora--Pinnipedia
--------------------------------------------------------------------------------------------------------------------------------------------------------
Harbor seal......................... Phoca vitulina......... Western North Atlantic -/-, N 61,336 (0.08; 57,637; 1,729 339
Stock. 2018).
Gray seal \4\....................... Halichoerus grypus..... Western North Atlantic -/-, N 27,300 (0.22; 22,785; 1,458 4,453
Stock. 2016).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ ESA status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or
designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or
which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is
automatically designated under the MMPA as depleted and as a strategic stock.
\2\ NMFS marine mammal stock assessment reports online at: <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-stock-assessments</a>. CV
is the coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable.
\3\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
fisheries, ship strike).
\4\ NMFS' stock abundance estimate (and associated PBR value) applies to the U.S. population only. Total stock abundance (including animals in Canada)
is approximately 451,600. The annual mortality and serious injury (M/SI) value given is for the total stock.
A detailed description of the species likely to be affected by AE's
activities, including information regarding population trends, threats,
and local occurrence, was provided in the Federal Register notice for
the proposed IHA (88 FR 24553, April 21, 2023). Since that time, we are
not aware of any changes in the status of these species and stocks;
therefore, detailed descriptions are not provided here. Please refer to
that Federal Register notice for these descriptions. Please also refer
to NMFS' website (<a href="https://www.fisheries.noaa.gov/find-species">https://www.fisheries.noaa.gov/find-species</a>) for
generalized species accounts.
Marine Mammal Hearing
Hearing is the most important sensory modality for marine mammals
underwater, and exposure to anthropogenic sound can have deleterious
effects. To appropriately assess the potential effects of exposure to
sound, it is necessary to understand the frequency ranges marine
mammals are able to hear. Not all marine mammal species have equal
hearing capabilities (e.g., Richardson et al., 1995; Wartzok and
Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al.
(2007, 2019) recommended that marine mammals be divided into hearing
groups based on directly measured (behavioral or auditory evoked
potential techniques) or estimated hearing ranges (behavioral response
data, anatomical modeling, etc.). Note that no direct measurements of
hearing ability have been successfully completed for mysticetes (i.e.,
low-frequency cetaceans). Subsequently, NMFS (2018) described
generalized hearing ranges for these marine mammal hearing groups.
Generalized hearing ranges were chosen based on the approximately 65
decibel (dB) threshold from the normalized composite audiograms, with
the exception for lower limits for low-frequency cetaceans where the
lower bound was deemed to be biologically implausible and the lower
bound from Southall et al. (2007) retained. Marine mammal hearing
groups and their associated hearing ranges are provided in Table 2.
Table 2--Marine Mammal Hearing Groups
(NMFS, 2018)
------------------------------------------------------------------------
Hearing group Generalized hearing range *
------------------------------------------------------------------------
Low-frequency (LF) cetaceans (baleen 7 Hz to 35 kHz.
whales).
Mid-frequency (MF) cetaceans 150 Hz to 160 kHz.
(dolphins, toothed whales, beaked
whales, bottlenose whales).
High-frequency (HF) cetaceans (true 275 Hz to 160 kHz.
porpoises, Kogia, river dolphins,
Cephalorhynchid, Lagenorhynchus
cruciger & L. australis).
Phocid pinnipeds (PW) (underwater) 50 Hz to 86 kHz.
(true seals).
Otariid pinnipeds (OW) (underwater) 60 Hz to 39 kHz.
(sea lions and fur seals).
------------------------------------------------------------------------
* Represents the generalized hearing range for the entire group as a
composite (i.e., all species within the group), where individual
species' hearing ranges are typically not as broad. Generalized
hearing range chosen based on ~65 dB threshold from normalized
composite audiogram, with the exception for lower limits for LF
cetaceans (Southall et al., 2007) and PW pinniped (approximation).
[[Page 41898]]
The pinniped functional hearing group was modified from Southall et
al. (2007) on the basis of data indicating that phocid species have
consistently demonstrated an extended frequency range of hearing
compared to otariids, especially in the higher frequency range
(Hemil[auml] et al., 2006; Kastelein et al., 2009; Reichmuth and Holt,
2013).
For more detail concerning these groups and associated frequency
ranges, please see NMFS (2018) for a review of available information.
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat
A description of the potential effects of the specified activities
on marine mammals and their habitat can be found in the Federal
Register notice for the proposed IHA (88 FR 24553, April 21, 2023).
There is no new information on the potential effects of the specified
activities on marine mammals. Therefore, that information is not
repeated here; please refer to the Federal Register notice (88 FR
24553, April 21, 2023).
Estimated Take
This section provides an estimate of the number of incidental takes
authorized through the IHA, which informs both NMFS' ``small numbers,''
and the negligible impact determinations.
Harassment is the only type of take expected to result from these
activities. Except with respect to certain activities not pertinent
here, section 3(18) of the MMPA defines ``harassment'' as any act of
pursuit, torment, or annoyance, which (i) has the potential to injure a
marine mammal or marine mammal stock in the wild (Level A harassment);
or (ii) has the potential to disturb a marine mammal or marine mammal
stock in the wild by causing disruption of behavioral patterns,
including, but not limited to, migration, breathing, nursing, breeding,
feeding, or sheltering (Level B harassment).
Authorized takes are by Level B harassment only, in the form of
disruption of behavioral patterns for individual marine mammals
resulting from exposure to sound produced by the sparker or boomer.
Based on the characteristics of the signals produced by the acoustic
sources planned for use, Level A harassment is neither anticipated
(even absent mitigation), nor authorized. As described previously, no
serious injury or mortality is anticipated or authorized for this
activity. Below, we describe how the take numbers are estimated.
For acoustic impacts, generally speaking, we estimate take by
considering: (1) acoustic thresholds above which NMFS believes the best
available science indicates marine mammals will be behaviorally
harassed or incur some degree of permanent hearing impairment; (2) the
area or volume of water that will be ensonified above these levels in a
day; (3) the density or occurrence of marine mammals within these
ensonified areas; and, (4) the number of days of activities. We note
that while these factors can contribute to a basic calculation to
provide an initial prediction of potential takes, additional
information that can qualitatively inform take estimates is also
sometimes available (e.g., previous monitoring results or average group
size). Below, we describe the factors considered here in more detail
and present the take estimates.
Acoustic Thresholds
NMFS recommends the use of acoustic thresholds that identify the
received level of underwater sound above which exposed marine mammals
would be reasonably expected to be behaviorally harassed (equated to
Level B harassment) or to incur permanent threshold shift (PTS) of some
degree (equated to Level A harassment).
Level B Harassment--Though significantly driven by received level,
the onset of behavioral disturbance from anthropogenic noise exposure
is also informed to varying degrees by other factors related to the
source or exposure context (e.g., frequency, predictability, duty
cycle, duration of the exposure, signal-to-noise ratio, distance to the
source), the environment (e.g., bathymetry, other noises in the area,
predators in the area), and the receiving animals (hearing, motivation,
experience, demography, life stage, depth) and can be difficult to
predict (e.g., Southall et al., 2007, 2021; Ellison et al., 2012).
Based on what the available science indicates and the practical need to
use a threshold based on a metric that is both predictable and
measurable for most activities, NMFS typically uses a generalized
acoustic threshold based on received level to estimate the onset of
behavioral harassment. NMFS generally predicts that marine mammals are
likely to be behaviorally harassed in a manner considered to be Level B
harassment when exposed to underwater anthropogenic noise above root-
mean-squared pressure received levels (RMS SPL) of 120 dB (referenced
to 1 micropascal (re 1 [mu]Pa)) for continuous (e.g., vibratory pile-
driving, drilling) and above RMS SPL 160 dB re 1 [mu]Pa for non-
explosive impulsive (e.g., seismic airguns) or intermittent (e.g.,
scientific sonar) sources.
Generally speaking, Level B harassment take estimates based on
these behavioral harassment thresholds are expected to include any
likely takes by temporary threshold shift (TTS) as, in most cases, the
likelihood of TTS occurs at distances from the source less than those
at which behavioral harassment is likely. TTS of a sufficient degree
can manifest as behavioral harassment, as reduced hearing sensitivity
and the potential reduced opportunities to detect important signals
(conspecific communication, predators, prey) may result in changes in
behavior patterns that would not otherwise occur. AE's planned
activities include the use of impulsive (i.e., boomer and sparker)
sources, and therefore, the RMS SPL thresholds of 160 dB re 1 [mu]Pa is
applicable.
Level A Harassment--NMFS' Technical Guidance for Assessing the
Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0)
(Technical Guidance, 2018) identifies dual criteria to assess auditory
injury (Level A harassment) to five different marine mammal groups
(based on hearing sensitivity) as a result of exposure to noise from
two different types of sources (impulsive or non-impulsive).
The references, analysis, and methodology used in the development
of the thresholds are described in NMFS' 2018 Technical Guidance, which
may be accessed at <a href="http://www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance">www.fisheries.noaa.gov/national/marine-mammal-protection/marine-mammal-acoustic-technical-guidance</a>.
AE's planned activity includes the use of impulsive (i.e., boomer
and sparker) sources. However, as discussed above, NMFS has concluded
that Level A harassment is not a reasonably likely outcome for marine
mammals exposed to noise through use of the sources planned for use
here, and the potential for Level A harassment is not evaluated further
in this document. Please see AE's application for details of a
quantitative exposure analysis exercise, i.e., calculated Level A
harassment isopleths and estimated potential Level A harassment
exposures. AE did not request authorization of take by Level A
harassment, and NMFS is not authorizing take by Level A harassment.
Ensonified Area
Here, we describe operational and environmental parameters of the
activity that are used in estimating the area ensonified above the
acoustic thresholds, including source levels and transmission loss
coefficient.
[[Page 41899]]
NMFS has developed a user-friendly methodology for estimating the
extent of the Level B harassment isopleths associated with relevant HRG
survey equipment (NMFS, 2020). This methodology incorporates frequency
and directionality (when relevant) to refine estimated ensonified
zones. For acoustic sources that operate with different beamwidths, the
maximum beamwidth was used, and the lowest frequency of the source was
used when calculating the frequency-dependent absorption coefficient
(Table 1). AE used 180-degree beamwidth in the calculation for the
planned sparker as is appropriate for an omnidirectional source.
NMFS considers the data provided by Crocker and Fratantonio (2016)
to represent the best available information on source levels associated
with HRG survey equipment and, therefore, recommends that source levels
provided by Crocker and Fratantonio (2016) be incorporated in the
method described above to estimate isopleth distances to harassment
thresholds. In cases where the source level for a specific type of HRG
equipment is not provided in Crocker and Fratantonio (2016), NMFS
recommends either the source levels provided by the manufacturer be
used, or, in instances where source levels provided by the manufacturer
are unavailable or unreliable, a proxy from Crocker and Fratantonio
(2016) be used instead. Table 1 in the Federal Register notice for the
proposed IHA (88 FR 24553, April 21, 2023), shows the HRG equipment
type used during the planned surveys and the source levels associated
with those HRG equipment types.
AE plans to use the Dual Geo-Spark 2000X (400 tip/800 J). For all
source configurations, the maximum power expected to be discharged from
the sparker source is 800 J. However, Crocker and Fratantonio (2016)
did not measure the Dual Geo-Spark or a source with an energy of 800 J.
A similar alternative system, the Applied Acoustics Dura-spark with a
400 tip, was measured by Crocker and Fratantonio (2016) with an input
voltage of 500-2,000 J, and these measurements were used as a proxy for
the Dual Geo-Spark. Table 1 in the Federal Register notice for the
proposed IHA (88 FR 24553, April 21, 2023) shows the source parameters
associated with this proxy. Using the measured source level of 203 dB
RMS of the proxy, results of modeling indicated that the sparker would
produce an estimated distance of 141 m to the Level B harassment
isopleth.
AE additionally plans to use the Geo-Boomer 300-500. Crocker and
Fratantonio (2016) did not measure the Geo-Boomer 300-500. A similar
alternative system, Applied Acoustics S-Boom, was measured by Crocker
and Fratantonio (2016) and the 500 J values were used as a proxy for
the Geo-Boomer 300-500. Using the measured source level of 202 dB RMS
of the proxy, results of modeling indicated that the boomer would
produce an estimated distance of 51 m to the Level B harassment
isopleth.
Results of modeling using the methodology described above indicated
that, of the HRG survey equipment planned for use by the applicant that
has the potential to result in Level B harassment of marine mammals,
the Dual Geo-Spark 2000X would produce the largest distance to the
Level B harassment isopleth (141 m). More detail is provided on the
acoustic sources and methodology in the proposed IHA published in the
Federal Register on April 21, 2023 (88 FR 24553).
Marine Mammal Occurrence
In this section, we provide information about the occurrence of
marine mammals, including density or other relevant information, which
will inform the take calculations.
Habitat-based density models produced by the Duke University Marine
Geospatial Ecology Laboratory (Roberts et al., 2016; Roberts and
Halpin, 2022) represent the best available information regarding marine
mammal densities in the survey area. These density data incorporate
aerial and shipboard line-transect survey data from NMFS and other
organizations and incorporate data from numerous physiographic and
dynamic oceanographic and biological covariates, and controls for the
influence of sea state, group size, availability bias, and perception
bias on the probability of making a sighting. These density models were
originally developed for all cetacean taxa in the U.S. Atlantic
(Roberts et al., 2016). Most recently, in 2022, models for all taxa
were updated. More information is available online at <a href="https://seamap.env.duke.edu/models/Duke/EC/">https://seamap.env.duke.edu/models/Duke/EC/</a>. Marine mammal density estimates in
the survey area (animals/km\2\) were obtained using the most recent
model results for all taxa.
For the exposure analysis, density data from Roberts and Halpin
(2022) were mapped using a geographic information system (GIS). For the
survey area, the monthly densities of each species as reported by
Roberts and Halpin (2022) were averaged by season; thus, a density was
calculated for each species for spring, summer, fall, and winter.
Density seasonal averages were calculated for both the Lease Area and
the ECR Area for each species to assess the greatest average seasonal
densities for each species. To be conservative, since the exact timing
for the survey during the year is uncertain, the greatest average
seasonal density calculated for each species was carried forward in the
exposure analysis, with exceptions noted later in this discussion.
Estimated greatest average seasonal densities (animals/km\2\) of marine
mammal species that may be taken incidental to the planned survey can
be found in Tables 6-1 and 6-2 of AE's IHA application. Below, we
discuss how densities were assumed to apply to specific species for
which the Roberts and Halpin (2022) models provide results at the genus
or guild level.
There are two stocks of bottlenose dolphins that may be impacted by
the surveys (Western North Atlantic Northern Migratory Coastal Stock
(coastal stock) and the Western North Atlantic Offshore Stock (offshore
stock)). However, Roberts and Halpin (2022) do not differentiate by
stock. The Coastal Stock is assumed to generally occur in waters less
than 20 m and the Offshore Stock in waters deeper than 20 m (65-ft)
isobath.
The Lease Area is in waters deeper than 20 m and only the Offshore
Stock would occur and could be potentially taken by survey effort in
that area. For the ECR survey area, both stocks could occur in the
area, so AE calculated separate mean seasonal densities for the portion
to be surveyed that is less than 20 m in depth and for the portion that
is greater than 20 m in depth to use for estimating take of the Coastal
and Offshore Stocks of bottlenose dolphins, respectively. The total
tracklines in waters deeper than 20 m, between the ECR and the lease
area, are 20,305 km. The total tracklines in waters less than 20 m
depth, only found in portions of the ECR, are 1,440 km. Therefore,
different trackline totals were used to calculate take of the Coastal
and Offshore Stocks of bottlenose dolphins (20,305 km trackline of
Offshore Stock and 1,440 km trackline of the Coastal Stock). All other
species analyzed used the total 21,745 km of trackline for
calculations.
Furthermore, the Roberts and Halpin (2022) density model does not
differentiate between the different pinniped species. For seals, given
their size and behavior when in the water, seasonality, and feeding
preferences, there is limited information available on species-specific
distribution. Density
[[Page 41900]]
estimates of Roberts and Halpin (2022) include all seal species that
may occur in the Western North Atlantic combined (i.e., harbor, gray,
hooded, and harp). For this IHA, only the harbor seals and gray seals
are reasonably expected to occur in the survey area; densities of seals
were split evenly between these two species.
Lastly, the Roberts and Halpin (2022) density model does not
differentiate between the pilot whale species. While the exact
latitudinal ranges of the two species are uncertain, only long-finned
pilot whales are expected to occur in this project area due to their
more northerly distribution and tolerance of shallower, colder shelf
waters (Hayes et al., 2022).
Take Estimation
Here, we describe how the information provided above is synthesized
to produce a quantitative estimate of the take that is reasonably
likely to occur and is authorized.
In order to estimate the number of marine mammals predicted to be
exposed to sound levels that would result in harassment, radial
distances to predicted isopleths corresponding to Level B harassment
thresholds are calculated, as described above. The maximum distance
(i.e., 141-m distance associated with the Dual Geo-Spark 2000X) to the
Level B harassment criterion and the total length of the survey
trackline are then used to calculate the total ensonified area, or zone
of influence (ZOI) around the survey vessel.
AE proposes to conduct the survey, using either the boomer or
sparker, for a total of 21,745 km of trackline, of which 14,025 km are
in the Lease area and 7,720 km in the ECR area. Of the ECR survey
trackline, 1,440 km are in waters less than 20 m depth. AE is
requesting take based on the worst-case-scenario between the equipment
planned, which is the use of only the Dual Geo-Spark 2000X--based on
the largest estimated distance to the harassment criterion. Based on
the maximum estimated distance to the Level B harassment threshold of
141-m (sparker) and the total survey length, the total ensonified area
is 6,133 km\2\. That is approximately 3,955 km\2\ for the lease area
and 2,177 km\2\ in the ECR area with 407 km\2\ in waters less than 20 m
depth based on the following formula:
Mobile Source ZOI = (Total survey length x 2r) + [pi]r2
Where total survey length is equal to the total distance of the
survey track lines within the lease area; and r is equal to the maximum
radial distance from a given sound source to the Level B harassment
threshold.
This is a conservative estimate as it assumes the HRG source that
results in the greatest isopleth distance to the Level B harassment
threshold would be operated at all times during the entire survey,
which may not ultimately occur and assumes the worst case scenario is
the scenario chosen for the surveys. The number of marine mammals
expected to be incidentally taken during the total survey is then
calculated by estimating the number of each species predicted to occur
within the ensonified area (animals/km\2\), incorporating the greatest
seasonal estimated marine mammal densities as described above. The
product is then rounded, to generate an estimate of the total number of
instances of harassment expected for each species over the duration of
the survey. A summary of this method is illustrated in the following
formula with the resulting take of marine mammals shown below in Table
3:
Estimated Take = D x ZOI
Where: D is the greatest average seasonal species density (per
km\2\); and ZOI is the maximum daily ensonified area to relevant
thresholds.
Table 3--Estimated Take Numbers and Total Take Authorized
----------------------------------------------------------------------------------------------------------------
Ensonified Density
Species area (animals/ Estimated Total take Percent of
(km\2\) km\2\) take authorized abundance \c\
----------------------------------------------------------------------------------------------------------------
North Atlantic right whale............... 6,133 0.001932 12 12 3.51
Humpback whale........................... 6,133 0.003853 24 24 1.69
Fin whale................................ 6,133 0.006256 38 38 0.56
Sei whale................................ 6,133 0.001972 12 12 0.19
Minke whale.............................. 6,133 0.029226 179 179 0.82
Sperm whale.............................. 6,133 0.000447 3 3 0.06
Risso's dolphin.......................... 6,133 0.003695 23 23 0.06
Long-finned pilot whale.................. 6,133 0.003363 21 21 0.05
Atlantic white-sided dolphin............. 6,133 0.033740 207 207 0.22
Common dolphin........................... 6,133 0.335271 2,056 2,056 1.19
Atlantic spotted dolphin................. 6,133 0.014496 89 89 0.22
Bottlenose dolphin (W.N. Atlantic 5,727 0.304831 1,746 1,746 2.78
Offshore) \a\...........................
Bottlenose dolphin (Northern Migratory 407 0.956430 389 389 5.86
Coastal) \b\............................
Harbor porpoise.......................... 6,133 0.178544 1,095 1,095 1.15
Harbor seal.............................. 6,133 \d\ 0.260186 1,596 1,596 2.60
Gray seal................................ 6,133 \d\ 0.260186 1,596 1,596 \e\ 0.35
----------------------------------------------------------------------------------------------------------------
\a\ The ensonified area for the offshore stock is for >20 m water depth includes all the lease area and portions
of the ECR.
\b\ The ensonified area for the migratory coastal stock is only the areas of <20 m water depth (found only in
portions of the ECR).
\c\ Based on the 2022 draft marine mammal stock assessment reports (SAR).
\d\ These each represent 50 percent of a generic seal density value.
\e\ This abundance estimate is based on the total stock abundance (including animals in Canada). The NMFS stock
abundance estimate for US population is only 27,300.
Mitigation
In order to issue an IHA under section 101(a)(5)(D) of the MMPA,
NMFS must set forth the permissible methods of taking pursuant to the
activity, and other means of effecting the least practicable impact on
the species or stock and its habitat, paying particular attention to
rookeries, mating grounds, and areas of similar significance, and on
the availability of the species or stock for taking for certain
subsistence uses (latter not applicable for this action). NMFS
regulations require applicants for incidental take authorizations to
include information about the availability and feasibility (economic
and technological) of equipment, methods, and manner of conducting the
activity or other means of effecting the least practicable adverse
[[Page 41901]]
impact upon the affected species or stocks, and their habitat (50 CFR
216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to
ensure the least practicable adverse impact on species or stocks and
their habitat, NMFS considers two primary factors:
(1) The manner in which, and the degree to which, the successful
implementation of the measure(s) is expected to reduce impacts to
marine mammals, marine mammal species or stocks, and their habitat.
This considers the nature of the potential adverse impact being
mitigated (likelihood, scope, range). It further considers the
likelihood that the measure will be effective if implemented
(probability of accomplishing the mitigating result if implemented as
planned), the likelihood of effective implementation (probability
implemented as planned), and;
(2) The practicability of the measures for applicant
implementation, which may consider such things as cost and impact on
operations.
The following mitigation measures must be implemented during AE's
planned marine site characterization surveys. Pursuant to section 7 of
the ESA, AE would also be required to adhere to relevant Project Design
Criteria (PDC) of the NMFS' Greater Atlantic Regional Fisheries Office
(GARFO) programmatic consultation (specifically PDCs 4, 5, and 7)
regarding geophysical surveys along the U.S. Atlantic coast (<a href="https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation">https://www.fisheries.noaa.gov/new-england-mid-atlantic/consultations/section-7-take-reporting-programmatics-greater-atlantic#offshore-wind-site-assessment-and-site-characterization-activities-programmatic-consultation</a>).
Visual Monitoring and Shutdown Zones
AE must employ independent, dedicated, trained PSOs, meaning that
the PSOs must (1) be employed by a third-party observer provider, (2)
have no tasks other than to conduct observational effort, collect data,
and communicate with and instruct relevant vessel crew with regard to
the presence of marine mammals and mitigation requirements (including
brief alerts regarding maritime hazards), and (3) have successfully
completed an approved PSO training course appropriate for geophysical
surveys. Visual monitoring must be performed by qualified, NMFS-
approved PSOs. PSO resumes must be provided to NMFS for review and
approval prior to the start of survey activities.
During survey operations (e.g., any day on which use of the sparker
or boomer sources is planned to occur, and whenever the sparker or
boomer source is in the water, whether activated or not), a minimum of
one visual marine mammal observer (PSO) must be on duty on each source
vessel and conducting visual observations at all times during daylight
hours (i.e., from 30 minutes prior to sunrise through 30 minutes
following sunset). A minimum of two PSOs must be on duty on each source
vessel during nighttime hours. Visual monitoring must begin no less
than 30 minutes prior to ramp-up (described below) and must continue
until one hour after use of the sparker or boomer source ceases.
Visual PSOs shall coordinate to ensure 360[deg] visual coverage
around the vessel from the most appropriate observation posts and shall
conduct visual observations using binoculars and the naked eye while
free from distractions and in a consistent, systematic, and diligent
manner. PSOs shall establish and monitor applicable shutdown zones (see
below). These zones shall be based upon the radial distance from the
sparker or boomer source (rather than being based around the vessel
itself).
Four shutdown zones are defined, depending on the species and
context. An extended shutdown zone encompassing the area at and below
the sea surface out to a radius of 500 m from the sparker or boomer
source (0-500 m) is defined for NARW. For all other marine mammals, the
shutdown zone encompasses a standard distance of 100 m (0-100 m) during
the use of the sparker. For ESA-listed marine mammals during the use of
the boomer, the shutdown zone is 100 m (0-100 m). For all non-ESA-
listed marine mammals, the shutdown zone during the use of the boomer
is 50 m (0-50 m). Any observations of marine mammals by crew members
aboard any vessel associated with the survey shall be relayed to the
PSO team.
Visual PSOs may be on watch for a maximum of 4 consecutive hours
followed by a break of at least 1 hour between watches and may conduct
a maximum of 12 hours of observation per 24-hour period.
Pre-Start Clearance and Ramp-Up
A ramp-up procedure, involving a gradual increase in source level
output, is required at all times as part of the activation of the
sparker and boomer sources when technically feasible. Operators should
ramp up sparker and boomer to half power for 5 minutes and then proceed
to full power. A 30-minute pre-start clearance observation period of
the shutdown zones must occur prior to the start of ramp-up. The intent
of the pre-start clearance observation period (30 minutes) is to ensure
no marine mammals are within the shutdown zones prior to the beginning
of ramp-up. The intent of the ramp-up is to warn marine mammals of
pending operations and to allow sufficient time for those animals to
leave the immediate vicinity. All operators must adhere to the
following pre-start clearance and ramp-up requirements:
<bullet> The operator must notify a designated PSO of the planned
start of ramp-up as agreed upon with the lead PSO; the notification
time should not be less than 60 minutes prior to the planned ramp-up in
order to allow the PSOs time to monitor the shutdown zones for 30
minutes prior to the initiation of ramp-up (pre-start clearance).
During this 30 minute pre-start clearance period the entire shutdown
zone must be visible, except as indicated below.
<bullet> Ramp-ups shall be scheduled so as to minimize the time
spent with the source activated.
<bullet> A visual PSO conducting pre-start clearance observations
must be notified again immediately prior to initiating ramp-up
procedures and the operator must receive confirmation from the PSO to
proceed.
<bullet> Any PSO on duty has the authority to delay the start of
survey operations if a marine mammal is detected within the applicable
pre-start clearance zone.
<bullet> The operator must establish and maintain clear lines of
communication directly between PSOs on duty and crew controlling the
acoustic source to ensure that mitigation commands are conveyed swiftly
while allowing PSOs to maintain watch.
The pre-start clearance requirement is waived for small delphinids
and pinnipeds. Detection of a small delphinid (individual belonging to
the following genera of the Family Delphinidae: Steno, Delphinus,
Lagenorhynchus, Stenella, and Tursiops) or pinniped within the shutdown
zone does not preclude beginning of ramp-up, unless the PSO confirms
the individual to be of a genus other than those listed, in which case
normal pre-clearance requirements apply.
If there is uncertainty regarding identification of a marine mammal
species (i.e., whether the observed marine mammal(s) belongs to one of
the delphinid genera for which the pre-clearance requirement is
waived), PSOs may use best professional judgment in making the decision
to call for a shutdown.
[[Page 41902]]
<bullet> Ramp-up may not be initiated if any marine mammal to which
the pre-start clearance requirement applies is within the shutdown
zone. If a marine mammal is observed within the shutdown zone during
the 30-minute pre-start clearance period, ramp-up may not begin until
the animal(s) has been observed exiting the zones or until an
additional time period has elapsed with no further sightings (30
minutes for all baleen whale species and sperm whales and 15 minutes
for all other species).
<bullet> PSOs must monitor the shutdown zones 30 minutes before and
during ramp-up, and ramp-up must cease and the source must be shut down
upon observation of a marine mammal within the applicable shutdown
zone.
<bullet> Ramp-up may occur at times of poor visibility, including
nighttime, if appropriate visual monitoring has occurred with no
detections of marine mammals in the 30 minutes prior to beginning ramp-
up. Sparker or boomer activation may only occur at night where
operational planning cannot reasonably avoid such circumstances.
If the acoustic source is shut down for brief periods (i.e., less
than 30 minutes) for reasons other than implementation of prescribed
mitigation (e.g., mechanical difficulty), it may be activated again
without ramp-up if PSOs have maintained constant visual observation and
no detections of marine mammals have occurred within the applicable
shutdown zone. For any longer shutdown, pre-start clearance observation
and ramp-up are required.
Shutdown
All operators must adhere to the following shutdown requirements:
<bullet> Any PSO on duty has the authority to call for shutdown of
the sparker or boomer source if a marine mammal is detected within the
applicable shutdown zone.
<bullet> The operator must establish and maintain clear lines of
communication directly between PSOs on duty and crew controlling the
source to ensure that shutdown commands are conveyed swiftly while
allowing PSOs to maintain watch.
<bullet> When the sparker or boomer source is active and a marine
mammal appears within or enters the applicable shutdown zone, the
source must be shut down. When shutdown is instructed by a PSO, the
sparker or boomer source must be immediately deactivated and any
dispute resolved only following deactivation.
<bullet> Four shutdown zones are defined, depending on the species
and context. An extended shutdown zone encompassing the area at and
below the sea surface out to a radius of 500 m from the sparker or
boomer source (0-500 m) is defined for NARW. For all other marine
mammals, the shutdown zone encompasses a standard distance of 100 m (0-
100 m) during the use of the sparker. For ESA-listed marine mammals
during the use of the boomer, the shutdown zone is 100 m (0-100 m). For
all non-ESA-listed marine mammals, the shutdown zone during use of the
boomer is 50 m (0-50 m).
The shutdown requirement is waived for small delphinids and
pinnipeds. If a small delphinid (individual belonging to the following
genera of the Family Delphinidae: Steno, Delphinus, Lagenorhynchus,
Stenella, and Tursiops) or pinniped is visually detected within the
shutdown zone, no shutdown is required unless the PSO confirms the
individual to be of a genus other than those listed, in which case a
shutdown is required.
If there is uncertainty regarding identification of a marine mammal
species (i.e., whether the observed marine mammal(s) belongs to one of
the delphinid genera for which shutdown is waived or one of the species
with a larger shutdown zone), PSOs may use best professional judgment
in making the decision to call for a shutdown.
Upon implementation of shutdown, the source may be reactivated
after the marine mammal has been observed exiting the applicable
shutdown zone or following a clearance period (30 minutes for all
baleen whale species and sperm whales and 15 minutes for all other
species) with no further detection of the marine mammal.
If a species for which authorization has not been granted, or a
species for which authorization has been granted but the authorized
number of takes have been met, approaches or is observed within the
Level B harassment zone (141 m sparkers, 51 m boomers), shutdown must
occur.
Vessel Strike Avoidance
Crew and supply vessel personnel must have access to and use an
appropriate reference guide that includes identifying information on
all marine mammals that may be encountered. Vessel operators must
comply with the below measures except under extraordinary circumstances
when the safety of the vessel or crew is in doubt or the safety of life
at sea is in question. These requirements do not apply in any case
where compliance would create an imminent and serious threat to a
person or vessel or to the extent that a vessel is restricted in its
ability to maneuver and, because of the restriction, cannot comply.
Vessel operators and crews must maintain a vigilant watch for all
marine mammals and slow down, stop their vessel(s), or alter course, as
appropriate and regardless of vessel size, to avoid striking any marine
mammals. A single marine mammal at the surface may indicate the
presence of submerged animals in the vicinity of the vessel; therefore,
precautionary measures should always be exercised. A visual observer
aboard the vessel must monitor a vessel strike avoidance zone around
the vessel (species-specific distances are detailed below). Visual
observers monitoring the vessel strike avoidance zone may be third-
party observers (i.e., PSOs) or crew members, but crew members
responsible for these duties must be provided sufficient training to
(1) distinguish marine mammal from other phenomena and (2) broadly to
identify a marine mammal as a NARW, other whale (defined in this
context as sperm whales or baleen whales other than NARWs), or other
marine mammals.
All survey vessels, regardless of size, must observe a 10-knot
(18.52 km/h) speed restriction in specific areas designated by NMFS for
the protection of NARWs from vessel strikes. These include all Seasonal
Management Areas (SMA) established under 50 CFR 224.105 (when in
effect), any dynamic management areas (DMA) (when in effect), and Slow
Zones. See <a href="http://www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales">www.fisheries.noaa.gov/national/endangered-species-conservation/reducing-ship-strikes-north-atlantic-right-whales</a> for
specific detail regarding these areas.
<bullet> All vessels must reduce speed to 10 knots (18.52 km/h) or
less when mother/calf pairs, pods, or large assemblages of cetaceans
are observed near a vessel.
<bullet> All vessels must maintain a minimum separation distance of
500 m from NARWs, baleen whales (except humpback and minke), sperm
whales, and any unidentified large whales. If a NARW, baleen whale
(except humpback and minke), or an unidentified large whale is sighted
within the relevant separation distance, the vessel must steer a course
away at 10 kn (18.52 km/h) or less until the 500-m separation distance
has been established. If a whale is observed but cannot be confirmed as
a species other than a NARW, the vessel operator must assume that it is
a NARW and take appropriate action.
<bullet> All vessels must maintain a minimum separation distance of
100 m from all humpback and mike whales.
<bullet> All vessels must, to the maximum extent practicable,
attempt to maintain a minimum separation distance of 50 m from all
other marine mammals, with an
[[Page 41903]]
understanding that at times this may not be possible (e.g., for animals
that approach the vessel).
<bullet> When marine mammals are sighted while a vessel is
underway, the vessel must take action as necessary to avoid violating
the relevant separation distance (e.g., attempt to remain parallel to
the animal's course, avoid excessive speed or abrupt changes in
direction until the animal has left the area, reduce speed and shift
the engine to neutral). This does not apply to any vessel towing gear
or any vessel that is navigationally constrained.
Members of the PSO team will consult NMFS NARW reporting system and
Whale Alert, daily and as able, for the presence of NARWs throughout
survey operations, and for the establishment of DMAs and/or Slow Zones.
It is AE's responsibility to maintain awareness of the establishment
and location of any such areas and to abide by these requirements
accordingly.
Seasonal Operating Requirements
As described above, a section of the survey area partially overlaps
with a portion of a NARW SMA off the port of New York/New Jersey. This
SMA is active from November 1 through April 30 of each year. The survey
vessel, regardless of length, would be required to adhere to vessel
speed restrictions (<10 knots (18.52 km/h)) when operating within the
SMA during times when the SMA is active (Table 4).
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 AE's N/A.
right whale vessel will abide by the described
(Eubalaena restrictions
glacialis).
ECR (within SMA)................. November 1
through April 31
(Ports of New
York/New
Jersey).
ECR (outside SMA)................ N/A.
----------------------------------------------------------------------------------------------------------------
More information on Ship Strike Reduction for the NARW 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> whales.
Based on our evaluation of the applicant's planned measures, as
well as other measures considered by NMFS, NMFS has determined that the
mitigation measures provide the means of effecting the least
practicable impact on the affected species or stocks and their habitat,
paying particular attention to rookeries, mating grounds, and areas of
similar significance.
Monitoring and Reporting
In order to issue an IHA for an activity, section 101(a)(5)(D) of
the MMPA states that NMFS must set forth requirements pertaining to the
monitoring and reporting of such taking. The MMPA implementing
regulations at 50 CFR 216.104(a)(13) indicate that requests for
authorizations must include the suggested means of accomplishing the
necessary monitoring and reporting that will result in increased
knowledge of the species and of the level of taking or impacts on
populations of marine mammals that are expected to be present while
conducting the activities. Effective reporting is critical both to
compliance as well as ensuring that the most value is obtained from the
required monitoring.
Monitoring and reporting requirements prescribed by NMFS should
contribute to improved understanding of one or more of the following:
<bullet> Occurrence of marine mammal species or stocks in the area
in which take is anticipated (e.g., presence, abundance, distribution,
density);
<bullet> Nature, scope, or context of likely marine mammal exposure
to potential stressors/impacts (individual or cumulative, acute or
chronic), through better understanding of: (1) action or environment
(e.g., source characterization, propagation, ambient noise); (2)
affected species (e.g., life history, dive patterns); (3) co-occurrence
of marine mammal species with the activity; or (4) biological or
behavioral context of exposure (e.g., age, calving or feeding areas);
<bullet> Individual marine mammal responses (behavioral or
physiological) to acoustic stressors (acute, chronic, or cumulative),
other stressors, or cumulative impacts from multiple stressors;
<bullet> How anticipated responses to stressors impact either: (1)
long-term fitness and survival of individual marine mammals; or (2)
populations, species, or stocks;
<bullet> Effects on marine mammal habitat (e.g., marine mammal prey
species, acoustic habitat, or other important physical components of
marine mammal habitat); and,
<bullet> Mitigation and monitoring effectiveness.
Monitoring Measures
Visual monitoring must be performed by qualified, NMFS-approved
PSOs. AE must submit PSO resumes for NMFS review and approval prior to
commencement of the survey. Resumes should include dates of training
and any prior NMFS approval, as well as dates and description of last
experience, and must be accompanied by information documenting
successful completion of an acceptable training course.
For prospective PSOs not previously approved, or for PSOs whose
approval is not current, NMFS must review and approve PSO
qualifications. Resumes should include information related to relevant
education, experience, and training, including dates, duration,
location, and description of prior PSO experience. Resumes must be
accompanied by relevant documentation of successful completion of
necessary training.
NMFS may approve PSOs as conditional or unconditional. A
conditionally-approved PSO may be one who is trained but has not yet
attained the requisite experience. An unconditionally-approved PSO is
one who has attained the necessary experience. For unconditional
approval, the PSO must have a minimum of 90 days at sea performing the
role during a geophysical survey, with the conclusion of the most
recent relevant experience not more than 18 months previous.
At least one of the visual PSOs aboard the vessel must be
unconditionally-approved. One unconditionally-approved visual PSO shall
be designated as the lead for the entire PSO team. This lead should
typically be the PSO with the most experience, who would coordinate
duty schedules and roles for the PSO team and serve as primary point of
contact for the vessel
[[Page 41904]]
operator. To the maximum extent practicable, the duty schedule shall be
planned such that unconditionally-approved PSOs are on duty with
conditionally-approved PSOs.
At least one PSO aboard each acoustic source vessel must have a
minimum of 90 days at-sea experience working in the role, with no more
than 18 months elapsed since the conclusion of the at-sea experience.
One PSO with such experience must be designated as the lead for the
entire PSO team and serve as the primary point of contact for the
vessel operator. (Note that the responsibility of coordinating duty
schedules and roles may instead be assigned to a shore-based, third-
party monitoring coordinator.) To the maximum extent practicable, the
lead PSO must devise the duty schedule such that experienced PSOs are
on duty with those PSOs with appropriate training but who have not yet
gained relevant experience.
PSOs must successfully complete relevant training, including
completion of all required coursework and passing (80 percent or
greater) a written and/or oral examination developed for the training
program.
PSOs must have successfully attained a bachelor's degree from an
accredited college or university with a major in one of the natural
sciences, a minimum of 30 semester hours or equivalent in the
biological sciences, and at least one undergraduate course in math or
statistics. The educational requirements may be waived if the PSO has
acquired the relevant skills through alternate experience. Requests for
such a waiver shall be submitted to NMFS and must include written
justification. Alternate experience that may be considered includes,
but is not limited to (1) secondary education and/or experience
comparable to PSO duties; (2) previous work experience conducting
academic, commercial, or government-sponsored marine mammal surveys;
and (3) previous work experience as a PSO (PSO must be in good standing
and demonstrate good performance of PSO duties).
AE must work with the selected third-party PSO provider to ensure
PSOs have all equipment (including backup equipment) needed to
adequately perform necessary tasks, including accurate determination of
distance and bearing to observed marine mammals, and to ensure that
PSOs are capable of calibrating equipment as necessary for accurate
distance estimates and species identification. Such equipment, at a
minimum, shall include:
<bullet> At least one thermal (infrared) imagine device suited for
the marine environment;
<bullet> Reticle binoculars (e.g., 7 x 50) of appropriate quality
(at least one per PSO, plus backups);
<bullet> Global Positioning Units (GPS) (at least one plus
backups);
<bullet> Digital cameras with a telephoto lens that is at least
300-mm or equivalent on a full-frame single lens reflex (SLR) (at least
one plus backups). The camera or lens should also have an image
stabilization system;
<bullet> Equipment necessary for accurate measurement of distances
to marine mammal;
<bullet> Compasses (at least one plus backups);
<bullet> Means of communication among vessel crew and PSOs; and,
<bullet> Any other tools deemed necessary to adequately and
effectively perform PSO tasks.
The equipment specified above may be provided by an individual PSO,
the third-party PSO provider, or the operator, but AE is responsible
for ensuring PSOs have the proper equipment required to perform the
duties specified in the IHA.
The PSOs will be responsible for monitoring the waters surrounding
the survey vessel to the farthest extent permitted by sighting
conditions, including Shutdown Zones, during all HRG survey operations.
PSOs will visually monitor and identify marine mammals, including those
approaching or entering the established Shutdown Zones during survey
activities. It will be the responsibility of the PSO(s) on duty to
communicate the presence of marine mammals as well as to communicate
the action(s) that are necessary to ensure mitigation and monitoring
requirements are implemented as appropriate.
PSOs must be equipped with binoculars and have the ability to
estimate distance and bearing to detect marine mammals, particularly in
proximity to Shutdown Zones. Reticulated binoculars must also be
available to PSOs for use as appropriate based on conditions and
visibility to support the sighting and monitoring of marine mammals.
During nighttime operations, appropriate night-vision devices (e.g.,
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 must 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 and between acquisition periods, to the maximum
extent practicable. Any observations of marine mammals by crew members
aboard the vessel associated with the survey would be relayed to the
PSO team.
Data on all PSO observations would be recorded based on standard
PSO collection requirements (see Reporting Measures). This would
include dates, times, and locations of survey operations; dates and
times of observations, location and weather; details of marine mammal
sightings (e.g., species, numbers, behavior); and details of any
observed marine mammal behavior that occurs (e.g., noted behavioral
disturbances). Members of the PSO team shall consult the NMFS NARW
reporting system and Whale Alert, daily and as able, for the presence
of NARWs throughout survey operations.
Reporting Measures
AE shall submit a draft comprehensive report to NMFS on all
activities and monitoring results within 90 days of the completion of
the survey or expiration of the IHA, whichever comes sooner. The report
must describe all activities conducted and sightings of marine mammals,
must provide full documentation of methods, results, and interpretation
pertaining to all monitoring, and must summarize the dates and
locations of survey operations and all marine mammals sightings (dates,
times, locations, activities, associated survey activities). The draft
report shall also include geo-referenced, time-stamped vessel
tracklines for all time periods during which acoustic sources were
operating. Tracklines should include points recording any change in
acoustic source status (e.g., when the sources began operating, when
they were turned off, or when they changed operational status such as
from full array to single gun or vice versa). GIS files shall be
provided in Environmental Systems Research Institute, Inc. (ESRI)
shapefile format and include the Coordinated Universal Time (UTC) date
and time, latitude in decimal degrees, and longitude in decimal
degrees. All coordinates shall be referenced to the WGS84 geographic
coordinate system. In addition to the report, all raw observational
data shall be made available. The report must summarize the
information. A final report must be submitted within 30 days following
resolution of any comments on the draft report. All draft and final
marine mammal monitoring reports must be submitted to
[[Page 41905]]
<a href="/cdn-cgi/l/email-protection#2e7e7c00677a7e00634140475a415c4740497c4b5e415c5a5d6e40414f4f00494158"><span class="__cf_email__" data-cfemail="e6b6b4c8afb2b6c8ab89888f9289948f8881b4839689949295a688898787c8818990">[email protected]</span></a>, <a href="/cdn-cgi/l/email-protection#3c52515a4f125b5d4e1255525f55585952485d5011485d57597c52535d5d125b534a"><span class="__cf_email__" data-cfemail="6f0102091c41080e1d4106010c060b0a011b0e03421b0e040a2f01000e0e41080019">[email protected]</span></a>,
and <a href="/cdn-cgi/l/email-protection#357c61651b595a565e755b5a54541b525a43"><span class="__cf_email__" data-cfemail="246d70740a484b474f644a4b45450a434b52">[email protected]</span></a>.
PSOs must use standardized electronic data forms to record data.
PSOs shall record detailed information about any implementation of
mitigation requirements, including the distance of marine mammal to the
acoustic source and description of specific actions that ensued, the
behavior of the animal(s), any observed changes in behavior before and
after implementation of mitigation, and if shutdown was implemented,
the length of time before any subsequent ramp-up of the acoustic
source. If required mitigation was not implemented, PSOs should record
a description of the circumstances. At a minimum, the following
information must be recorded:
1. Vessel names (source vessel), vessel size and type, maximum
speed capability of vessel;
2. Dates of departures and returns to port with port name;
3. PSO names and affiliations;
4. Date and participants of PSO briefings;
5. Visual monitoring equipment used;
6. PSO location on vessel and height of observation location above
water surface;
7. Dates and times (Greenwich Mean Time) of survey on/off effort
and times corresponding with PSO on/off effort;
8. Vessel location (decimal degrees) when survey effort begins and
ends and vessel location at beginning and end of visual PSO duty
shifts;
9. Vessel location at 30-second intervals if obtainable from data
collection software, otherwise at practical regular interval;
10. Vessel heading and speed at beginning and end of visual PSO
duty shifts and upon any change;
11. Water depth (if obtainable from data collection software);
12. Environmental conditions while on visual survey (at beginning
and end of PSO shift and whenever conditions change significantly),
including BSS and any other relevant weather conditions including cloud
cover, fog, sun glare, and overall visibility to the horizon;
13. Factors that may contribute to impaired observations during
each PSO shift change or as needed as environmental conditions change
(e.g., vessel traffic, equipment malfunctions); and
14. Survey activity information (and changes thereof), such as
acoustic source power output while in operation, number and volume of
airguns operating in an array, tow depth of an acoustic source, and any
other notes of significance (i.e., pre-start clearance, ramp-up,
shutdown, testing, shooting, ramp-up completion, end of operations,
streamers, etc.).
15. Upon visual observation of any marine mammal, the following
information must be recorded:
a. Watch status (sighting made by PSO on/off effort, opportunistic,
crew, alternate vessel/platform);
b. Vessel/survey activity at time of sighting (e.g., deploying,
recovering, testing, shooting, data acquisition, other);
c. PSO who sighted the animal;
d. Time of sighting;
e. Initial detection method;
f. Sightings cue;
g. Vessel location at time of sighting (decimal degrees);
h. Direction of vessel's travel (compass direction);
i. Speed of the vessel(s) from which the observation was made;
j. Identification of the animal (e.g., genus/species, lowest
possible taxonomic level or unidentified); also note the composition of
the group if there is a mix of species;
k. Species reliability (an indicator of confidence in
identification);
l. Estimated distance to the animal and method of estimating
distance;
m. Estimated number of animals (high/low/best);
n. Estimated number of animals by cohort (adults, yearlings,
juveniles, calves, group composition, etc.);
o. Description (as many distinguishing features as possible of each
individual seen, including length, shape, color, pattern, scars, or
markings, shape and size of dorsal fin, shape of head, and blow
characteristics);
p. Detailed behavior observations (e.g., number of blows/breaths,
number of surfaces, breaching, spyhopping, diving, feeding, traveling;
as explicit and detailed as possible; note any observed changes in
behavior before and after point of closest approach);
q. Mitigation actions; description of any actions implemented in
response to the sighting (e.g., delays, shutdowns, ramp-up, speed or
course alteration, etc.) and time and location of the action;
r. Equipment operating during sighting;
s. Animal's closest point of approach and/or closest distance from
the center point of the acoustic source; and,
t. Description of any actions implemented in response to the
sighting (e.g., delays, shutdown, ramp-up) and time and location of the
action.
If a NARW is observed at any time by PSOs or personnel on the
project vessel, during surveys or during vessel transit, AE must report
the sighting information to the NMFS NARW 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, the incident must be
reported to NMFS as soon as feasible by phone (866-755-6622) and by
email (<a href="/cdn-cgi/l/email-protection#422c2f24316c2523306c2b2c212b26272c36232e6f36232927022c2d23236c252d34"><span class="__cf_email__" data-cfemail="c8a6a5aebbe6afa9bae6a1a6aba1acada6bca9a4e5bca9a3ad88a6a7a9a9e6afa7be">[email protected]</span></a> and
<a href="/cdn-cgi/l/email-protection#5a0a0874130e0a74173534332e352833343d083f2a35282e291a34353b3b743d352c"><span class="__cf_email__" data-cfemail="88d8daa6c1dcd8a6c5e7e6e1fce7fae1e6efdaedf8e7fafcfbc8e6e7e9e9a6efe7fe">[email protected]</span></a>). The report must include the
following information:
1. Time, date, and location (latitude/longitude) of the first
discovery (and updated location information if known and applicable);
2. Species identification (if known) or description of the
animal(s) involved;
3. Condition of the animal(s) (including carcass condition if the
animal is dead);
4. Observed behaviors of the animal(s), if alive;
5. If available, photographs or video footage of the animal(s); and
6. General circumstances under which the animal was discovered.
In the event of a ship strike of a marine mammal by any vessel
involved in the activities, AE must report the incident to NMFS by
phone (866-755-6622) and by email (<a href="/cdn-cgi/l/email-protection#dfb1b2b9acf1b8beadf1b6b1bcb6bbbab1abbeb3f2abbeb4ba9fb1b0bebef1b8b0a9"><span class="__cf_email__" data-cfemail="422c2f24316c2523306c2b2c212b26272c36232e6f36232927022c2d23236c252d34">[email protected]</span></a>
and <a href="/cdn-cgi/l/email-protection#cf9f9de1869b9fe182a0a1a6bba0bda6a1a89daabfa0bdbbbc8fa1a0aeaee1a8a0b9"><span class="__cf_email__" data-cfemail="cc9c9ee285989ce281a3a2a5b8a3bea5a2ab9ea9bca3beb8bf8ca2a3adade2aba3ba">[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
[[Page 41906]]
marine mammals immediately preceding the strike;
11. Estimated fate of the animal (e.g., dead, injured but alive,
injured and moving, blood or tissue observed in the water, status
unknown, disappeared); and,
12. To the extent practicable, photographs or video footage of the
animal(s).
Negligible Impact Analysis and Determination
NMFS has defined negligible impact as an impact resulting from the
specified activity that cannot be reasonably expected to, and is not
reasonably likely to, adversely affect the species or stock through
effects on annual rates of recruitment or survival (50 CFR 216.103). A
negligible impact finding is based on the lack of likely adverse
effects on annual rates of recruitment or survival (i.e., population-
level effects). An estimate of the number of takes alone is not enough
information on which to base an impact determination. In addition to
considering estimates of the number of marine mammals that might be
``taken'' through harassment, NMFS considers other factors, such as the
likely nature of any impacts or responses (e.g., intensity, duration),
the context of any impacts or responses (e.g., critical reproductive
time or location, foraging impacts affecting energetics), as well as
effects on habitat, and the likely effectiveness of the mitigation. We
also assess the number, intensity, and context of estimated takes by
evaluating this information relative to population status. Consistent
with the 1989 preamble for NMFS' implementing regulations (54 FR 40338,
September 29, 1989), the impacts from other past and ongoing
anthropogenic activities are incorporated into this analysis via their
impacts on the baseline (e.g., as reflected in the regulatory status of
the species, population size and growth rate where known, ongoing
sources of human-caused mortality, or ambient noise levels).
To avoid repetition, the majority of our analysis applies to all
the species listed in Table 2, given that some of the anticipated
effects of this project on different marine mammal stocks are expected
to be relatively similar in nature. Where there are meaningful
differences between species or stocks, or groups of species, in
anticipated individual responses to activities, impact of expected take
on the population due to differences in population status, or impacts
on habitat, they are included as separate subsections below.
Specifically, we provide additional discussion related to NARW and to
other species currently experiencing UMEs.
NMFS does not anticipate that serious injury or mortality would
occur as a result from HRG surveys, even in the absence of mitigation,
and no serious injury or mortality is authorized. As discussed in the
Potential Effects of Specified Activities on Marine Mammals and Their
Habitat section, non-auditory physical effects, auditory physical
effects, and vessel strike are not expected to occur. NMFS expects that
all potential takes would be in the form of Level B harassment in the
form of temporary avoidance of the area or decreased foraging (if such
activity was occurring), reactions that are considered to be of low
severity and with no lasting biological consequences (e.g., Southall et
al., 2007; Ellison et al., 2012).
In addition to being temporary, the maximum expected harassment
zone around a survey vessel is 141-m. Therefore, the ensonified area
surrounding each vessel is relatively small compared to the overall
distribution of the animals in the area and their use of the habitat.
Feeding behavior is not likely to be significantly impacted as prey
species are mobile and are broadly distributed throughout the survey
area; therefore, marine mammals that may be temporarily displaced
during survey activities are expected to be able to resume foraging
once they have moved away from areas with disturbing levels of
underwater noise. Because of the temporary nature of the disturbance
and the availability of similar habitat and resources in the
surrounding area, the impacts to marine mammals and the food sources
that they utilize are not expected to cause significant or long-term
consequences for individual marine mammals or their populations.
There are no rookeries, mating or calving grounds known to be
biologically important to marine mammals within the planned survey area
and there are no feeding areas known to be biologically important to
marine mammals within the survey area. There is no designated critical
habitat for any ESA-listed marine mammals in the survey area.
North Atlantic Right Whales
The status of the NARW population is of heightened concern and,
therefore, merits additional analysis. As noted previously, elevated
NARW mortalities began in June 2017 and there is an active UME.
Overall, preliminary findings attribute human interactions,
specifically vessel strikes and entanglements, as the cause of death
for the majority of NARWs. As noted previously, the survey area
overlaps a migratory corridor BIA for NARWs that extends from
Massachusetts to Florida and from the coast to beyond the shelf break.
Due to the fact that the planned survey activities are temporary (will
occur for up to 1 year) and the spatial extent of sound produced by the
survey would be small relative to the spatial extent of the available
migratory habitat in the BIA, NARW migration is not expected to be
impacted by the survey. This important migratory area is approximately
269,488 km\2\ in size (compared with the worst case scenario of
approximately 6,133 km\2\ of total estimated Level B harassment
ensonified area associated with both the Lease Area and the ECR area
surveys) and is comprised of the waters of the continental shelf
offshore the East Coast of the United States, extending from Florida
through Massachusetts.
Given the relatively small size of the ensonified area, it is
unlikely that prey availability would be adversely affected by HRG
survey operations. Required vessel strike avoidance measures will also
decrease risk of ship strike during migration; no ship strike is
expected to occur during AE's planned activities. Additionally, only
very limited take by Level B harassment of NARWs has been requested and
is being authorized by NMFS as HRG survey operations are required to
maintain and implement a 500-m shutdown zone. The 500-m shutdown zone
for NARWs is conservative, considering the Level B harassment isopleth
for the most impactful acoustic source (i.e., sparker) is estimated to
be 141-m, and thereby minimizes the intensity and duration of any
potential incidents of behavioral harassment for this species. As noted
previously, Level A harassment is not expected due to the small
estimated zones in conjunction with the aforementioned shutdown
requirements. NMFS does not anticipate NARWs takes that result from
AE's planned activities will impact annual rates of recruitment or
survival. Thus, any takes that occur will not result in population
level impacts.
Other Marine Mammal Species With Active UMEs
As noted previously, there are several active UMEs occurring in the
vicinity of AE's survey area. Elevated humpback whale mortalities have
occurred along the Atlantic coast from Maine through Florida since
January 2016. Of the cases examined, approximately half had evidence of
human interaction (ship strike or entanglement). The UME does not yet
provide cause for concern
[[Page 41907]]
regarding population-level impacts. Despite the UME, the relevant
population of humpback whales (the West Indies breeding population, or
distinct population segment (DPS)) remains stable at approximately
12,000 individuals.
Elevated numbers of harbor seal and gray seal mortalities were
first observed between 2018-2020 and, as part of a separate UME, again
in 2022. These have occurred across Maine, New Hampshire, and
Massachusetts. Based on tests conducted so far, the main pathogen found
in the seals is phocine distemper virus (2018-2020) and avian influenza
(2022), although additional testing to identify other factors that may
be involved in the UMEs is underway. The UMEs do not provide cause for
concern regarding population-level impacts to any of these stocks. For
harbor seals, the population abundance is over 60,000 and annual M/SI
(339) is well below PBR (1,729) (Hayes et al., 2023). The population
abundance for gray seals in the United States is over 27,000, with an
estimated abundance, including seals in Canada, of approximately
450,000. In addition, the abundance of gray seals is likely increasing
in the U.S. Atlantic as well as in Canada (Hayes et al., 2021; Hayes et
al., 2023).
Beginning in January 2017, elevated minke whale strandings have
occurred along the Atlantic coast from Maine through South Carolina,
with highest numbers in Massachusetts, Maine, and New York. This event
does not provide cause for concern regarding population level impacts,
as the likely population abundance is greater than 20,000 whales. This
UME is no longer active and is pending closure.
The required mitigation measures are expected to reduce the number
and/or severity of takes for all species listed in Table 2, including
those with active UMEs, to the level of least practicable adverse
impact. In particular, they would provide animals the opportunity to
move away from the sound source before HRG survey equipment reaches
full energy, thus preventing them from being exposed to sound levels
that have the potential to cause injury. No Level A harassment is
anticipated, even in the absence of mitigation measures, or authorized.
NMFS expects that takes would be in the form of short-term Level B
harassment by way of brief startling reactions and/or temporary
vacating of the area, or decreased foraging (if such activity was
occurring)--reactions that (at the scale and intensity anticipated
here) are considered to be of low severity, with no lasting biological
consequences. Since both the sources and marine mammals are mobile,
animals would only be exposed briefly to a small ensonified area that
might result in take. Additionally, required mitigation measures would
further reduce exposure to sound that could result in more severe
behavioral harassment.
In summary and as described above, the following factors primarily
support our determination that the impacts resulting from this activity
are not expected to adversely affect any of the species or stocks
through effects on annual rates of recruitment or survival:
<bullet> No serious injury or mortality is anticipated or
authorized;
<bullet> No Level A harassment (PTS) is anticipated, even in the
absence of mitigation measures, or authorized;
<bullet> Foraging success is not likely to be significantly
impacted as effects on species that serve as prey species for marine
mammals from the survey are expected to be minimal;
<bullet> The availability of alternate areas of similar habitat
value for marine mammals to temporarily vacate the ensonified areas
during the planned survey to avoid exposure to sounds from the
activity;
<bullet> Take is anticipated to be by Level B harassment only
consisting of brief startling reactions and/or temporary avoidance of
the ensonified area;
<bullet> Survey activities will occur in such a comparatively small
portion of the BIA for the NARW migration that any avoidance of the
area due to survey activities would not affect migration. In addition,
mitigation measures require shutdown at 500 m (almost four times the
size of the Level B harassment zone of 141 m) to minimize the effects
of any Level B harassment take of the species; and,
<bullet> The mitigation measures, including visual monitoring and
shutdowns, are expected to minimize potential impacts to marine
mammals.
Based on the analysis contained herein of the likely effects of the
specified activity on marine mammals and their habitat, and taking into
consideration the implementation of the monitoring and mitigation
measures, NMFS finds that the total marine mammal take from the planned
activity will have a negligible impact on all affected marine mammal
species or stocks.
Small Numbers
As noted previously, only take of small numbers of marine mammals
may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for
specified activities other than military readiness activities. The MMPA
does not define small numbers and so, in practice, where estimated
numbers are available, NMFS compares the number of individuals taken to
the most appropriate estimation of abundance of the relevant species or
stock in our determination of whether an authorization is limited to
small numbers of marine mammals. When the predicted number of
individuals to be taken is fewer than one-third of the species or stock
abundance, the take is considered to be of small numbers. Additionally,
other qualitative factors may be considered in the analysis, such as
the temporal or spatial scale of the activities.
NMFS authorizes incidental take by Level B harassment only of 15
marine mammal species with 16 managed stocks. The total amount of takes
authorized is less than 6 percent relative to the best available
population abundance for any of the 16 managed stocks (highest being
for the Western North Atlantic Migratory Coastal Stock of Bottlenose
dolphins) (Table 3). The take numbers authorized are considered
conservative estimates for purposes of the small numbers determination
as they assume all takes represent different individual animals, which
is unlikely to be the case.
Based on the analysis contained herein of the planned activity
(including the mitigation and monitoring measures) and the anticipated
take of marine mammals, NMFS finds that small numbers of marine mammals
would be taken relative to the population size of the affected species
or stocks.
Unmitigable Adverse Impact Analysis and Determination
There are no relevant subsistence uses of the affected marine
mammal stocks or species implicated by this action. Therefore, NMFS has
determined that the total taking of affected species or stocks would
not have an unmitigable adverse impact on the availability of such
species or stocks for taking for subsistence purposes.
Endangered Species Act
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA; 16
U.S.C. 1531 et seq.) requires that each Federal agency insure that any
action it authorizes, funds, or carries out is not likely to jeopardize
the continued existence of any endangered or threatened species or
result in the destruction or adverse modification of designated
critical habitat. To ensure ESA compliance for the issuance of IHAs,
NMFS consults internally
[[Page 41908]]
whenever we propose to authorize take for endangered or threatened
species.
NMFS Office of Protected Resources (OPR) has authorized take of
four species of marine mammals which are listed under the ESA,
including the North Atlantic right, fin, sei, and sperm whale, and has
determined that these activities fall within the scope of activities
analyzed in NMFS Greater Atlantic Regional Fisheries Office's (GARFO)
programmatic consultation regarding geophysical surveys along the U.S.
Atlantic coast in the three Atlantic Renewable Energy Regions
(completed June 29, 2021; revised September 2021).
National Environmental Policy Act
To comply with the National Environmental Policy Act of 1969 (NEPA;
42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A,
NMFS must review our proposed action (i.e., the issuance of an IHA)
with respect to potential impacts on the human environment.
This action is consistent with categories of activities identified
in Categorical Exclusion B4 (IHAs with no anticipated serious injury or
mortality) of the Companion Manual for NOAA Administrative Order 216-
6A, which do not individually or cumulatively have the potential for
significant impacts on the quality of the human environment and for
which we have not identified any extraordinary circumstances that would
preclude this categorical exclusion. Accordingly, NMFS has determined
that the issuance of the IHA qualifies to be categorically excluded
from further NEPA review.
Authorization
As a result of these determinations, NMFS has issued an IHA to AE
for conducting marine site characterization surveys in coastal waters
off of New York and New Jersey in the New York Bight for a period of 1
year, provided the previously mentioned mitigation, monitoring, and
reporting requirements are incorporated. The IHA can be found at
<a href="https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable">https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable</a>.
Dated: June 22, 2023.
Kimberly Damon-Randall,
Director, Office of Protected Resources, National Marine Fisheries
Service.
[FR Doc. 2023-13719 Filed 6-27-23; 8:45 am]
BILLING CODE 3510-22-P
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